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CASES 


ON 


THE  LAW  OF  EVIDENCE 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY  EDWARD  W.  HINTON 

PKOFESSOE  OF  LAW   IN  THE  UNIVERSITY   OF  CHICAGO 


AMERICAN  CASEBOOK  SERIES 
WILLIAM  R.  VANCE 

GENERAL  EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1919 


UOPTBIGHT,  1919 
BY 

WEST  PUBLISHING  COMPANY 

(HiNT.EV.) 


T 

1919 


THE  AMERICAN  CASEBOOK  SERIES 


Tnt-  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  190S,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
tliat  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements: 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems. From  this  masterly  report,  so  replete  with  brilliant  analysis 
and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says: 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 

(iii) 


R 


67350 


iV  PREFACB 


of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 
'Tt  emphasizes  the  scientific  character  of  legal  thought;   it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.     From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.    Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected—rthe  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;    material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself',  component  parts  of  the  general  system.     In  the  fact  that,  as  has 
been  'said  before,  it  has  actually  accompHshed  this  purpose,  lies  the 
great  success  of  the  case  method.     For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer— whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.    It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen;    that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.     Thus  in  the  modern  American  law 
school  professional  practice' is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 

the  original  announcement: 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 


PHKFACE  V 

(ations  of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
iiistorically  and  scientifically ;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England ;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

■'The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  w^ould  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and"  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of.  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published  books  on  the  following  subjects : 

Administrative  Law.     By  Ernst   Freund,   Professor  of  Law   in  the 

University  of  Chicago. 
Agency,  including  Master  and  Servant.    Second  Edition.    By  Edwin  C. 

Goddard,  Professor  of  Law  in  the  University  of  Michigan. 

Bills  and  Notes.  Second  Edition.  By  Howard  L.  Smith,  Professor  of 
Law  in  the  University  of  Wisconsin,  and  Underbill  Moore,  Pro- 
fessor of  Law  in  Columbia  University. 

Carriers.  By  Frederick  Green,  Professor  of  Law  in  the  University  of 
Illinois. 

Conflict  of  Laws.  Second  Edition.  By  Ernest  G.  Lorenzen,  Pro- 
fessor of  Law  in  Yale  University. 

Constitutional  Laiv.  By  James  Parker  Hall,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Chicago. 

Contracts.    By  Arthur  L.  Corbin,  Professor  of  Law  in  Yale  University. 


vi  PREFACE 

Corporations.  Second  Edition.  By  Harry  S.  Richards,  Dean  of  the 
Faculty  of  Law  in  the  University  of  Wisconsin. 

Criminal  Law.  By  William  E.  Mikell,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Pennsylvania. 

Criminal  Procedure.  By  William  E.  Mikell,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Pennsylvania. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 
of  Chicago,  and  Barry  Gilbert,  of  the  Chicago  Bar, 

Equity.  By  George  H.  Boke,  formerly  Professor  of  Law  in  the  Uni- 
versity of  California. 

Equity.  By  Walter  Wheeler  Cook,  Professor  of  Law  in  Yale  Uni- 
versity.   Volumes  1  and  3.    Volume  2  in  preparation. 

Evidence.  By  Edward  W.  Hinton,  Professor  of  Law  in  the  Universi- 
ty of  Chicago. 

Insurance.  By  William  R.  Vance,  Professor  of  Law  in  Yale  Uni- 
versity. 

International  Law.  By  James  Brown  Scott,  Lecturer  on  International 
Law  and  the  Foreign  Relations  of  the  United  States  in  the  School 
of  Foreign  Service,  Georgetown  University. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P.  Costigan, 
Jr.,  Professor  of  Law  in  the  University  of  California. 

Oil  and  Gas.  By  Victor  H.  Kulp,  Professor  of  Law  in  the  University 
of  Oklahoma. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  late  of 
the  Chicago  Bar,  and  Chester  G.  Vernier,  Professor  of  Law  in 
Stanford  University. 

Pleading  (Common  Law).  By  Clarke  B.  Whittier,  Professor  of  Law 
in  Stanford  University,  and  Edmund  M.  Morgan,  Professor  of 
Law  in  Yale  University. 

Property  (Future  Interests).  By  Albert  M.  Kales,  late  of  the  Chicago 
Bar. 

Property  (Personal).  By  Plarry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

Property  (Rights  in  Land).  By  F[arry  A.  Bigelow,  Professor  of 
Law  in  the  University  of  Chicago. 

Property  (Titles  to  Real  Property).  By  Ralph  W.  Aigler,  Professor 
of  Law  in  the  University  of  Michigan. 

Property  (Wills,  Descent,  and  Administration).  By  George  P.  Costi- 
gan, Jr.,  Professor  of  Law  in  the  University  of  California. 

Quasi  Contracts.  By  Edward  S.  Thurston,  Professor  of  Law  in  Yale 
University. 


pnEFACB  vn 

Sales.    Second  Edition.    By  Frederic  C.  Woodward,  Professor  of  Law 
in  the  University  of  Chicago. 

Suretyship.     By  Crawford   D.   Hening,   formerly   Professor  of   Law 
in  the  University  of  Pennsylvania. 

Torts.     By  Charles  M.  Hepburn,  Dean  of  the  Faculty  of  Law  in  the 
University  of  Indiana. 

Trade  Regulation.    By  Herman  Oliphant,  Professor  of  Law  in  Colum- 
bia University. 

Trusts.    By  Thaddcus  D.  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 
Casebooks  on  other  subjects  are  in  preparation. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

WiivUAM  R.  Vance, 

General  Editor. 


AUTHOR'S  PREFATORY  NOTE 


Possibly  a  brief  explanation  of  the  general  plan  of  this  collection  of 
cases  may  be  of  assistance  to  students  and  others  who  may  have  occa- 
sion to  use  it. 

The  topics  covered  fall  into  four  groups : 

First.  The  respective  functions  of  the  judge  and  jury,  and  the 
development  of   various  methods   for  controlling  the  action  of   the 

jury. 

Second.  The  rules  prescribing  the  qualifications  of  witnesses  and 

governing  their  examination  when  testifying. 

Third.  Various  rules  of  policy  excluding  a  great  deal  of  evidential 
material  from  consideration  by  the  jury. 

Fourth.  Certain  substantive  rules,  governing  the  construction  and 
legal  effect  of  contracts,  conveyances,  and  other  operative  writings, 
which  have  long  been  expressed  in  terms  of  evidence. 

The  first  group  does  not  belong  to  the  law  of  evidence  proper,  but 
needs  to  be  understood  in  order  to  deal  intelligently  with  the  real 
problems  of  evidence.  It  would  seem  that  this  furnishes  a  sufficient 
reason  for  including  the  topics  covered  in  the  first  chapter,  and  explains 
the  purpose  of  placing  them  at  the  beginning  rather  than  elsewhere. 
In  this  branch  of  the  subject  the  historical  development  of  the  jury 
trial  has  had  an  important  bearing  on  the  present  state  of  the  la^y,  and 
for  that  reason  the  cases  have  been  selected  with  a  view  of  tracing  in 
some  detail  the  transition  from  the  older  to  the  modern  trial. 

In  the  second  group,  the  rules  governing  the  competency  of  witnesses 
have  lost  much  of  their  practical  importance  because  of  modern  stat- 
utes largely  abolishing  the  common-law  disqualifications  resulting  from 
lack  of  religious  belief,  conviction  of  crime,  interest  in  the  result  of 
the  suit,  or  marital  relationship  to  an  interested  person.  The  legislation 
in  question,  however,  has  rarely  abolished  all  of  the  old  law  on  these 
points,  and  in  a  surprising  number  of  recent  cases  the  court  is  found 
applying  rules  of  disqualifications  which  were  developed  in  the  seven- 
teenth and  eighteenth  centuries. 

On  this  account  it  appeared  advisable  to  work  out  the  common  law 
on  this  subject  at  some  length.  On  the  other  hand,  it  was  impracticable 
to  treat  the  statutory  modifications. in  detail  because  of  the  lack  of  uni- 
formity. 

Since  the  rules  for  witnesses  developed  and  became  settled  at  an 
earlier  period  than  most  of  the  law  of  evidence,  it  appeared  desirable  to 
include  a  number  of  the  earlier  cases  when  the  matter  was  in  the  pro- 
cess of  evolution. 

(ix) 


X  author's  prefatory  note 

The  subject  of  witnesses  has  been  treated  at  this  place  in  the  work 
because  many  of  the  rules  throw  a  good  deal  of  light  on  other  sub- 
jects;  e.  g.,  on  the  hearsay  rule. 

The  third  group  embraces  the  various  rules  of  exclusion  based  on 
reasons  of  policy  and  expediency. 

Here  it  is  well  to  bear  in  mind  two  fundamental  conceptions  worked 
out  by  the  late  Professor  James  Bradley  Thayer:  (1)  That  whatever 
is  offered  as  evidence  must  he  logically  relevant  in  order  to  be  admis- 
sible ;  e.  g.,  must  have  a  logical  bearing  on  the  proposition  sought  to 
be  established.  (2)  That  whatever  is  thus  logically  relevant  will  be 
received  unless  excluded  by  some  rule  of  policy  or  precedent. 

Professor  Thayer  was  careful  to  note,  however, -that  what,  accord- 
ing to  his  analysis,  are  really  qualifications  or  exceptions  to  the  general 
rule  of  admissibility,  have  ordinarily  been  developed  and  treated  as 
general  rules  of  exclusion,  to  which  there  are  many  specific  exceptions. 
Thus  the  hearsay  rule  has  always  been  thought  of  as  generally  exclud- 
ing that  sort  of  evidence,  subject  to  certain  well-defined  exceptions. 
For  convenience  the  subject  has  been  treated  from  the  latter  standpoint. 

In  the  field  of  the  excluding  rules  a  compiler  finds  himself  embarrass- 
ed by  the  vast  amount  of  material.  Time  and  space  preclude  any 
attempt  to  treat  the  various  topics  exhaustively.  It  has  been  found 
impracticable  to  do  more  than  select  the  more  important  problems 
arising  under  the  various  rules.  Here  there  is  much  room  for  differ- 
ence of  opinion,  and  probably  no  two  instructors  would  agree  in  all 
particulars  on  what  should  be  selected  as  more  important. 

The  present  compiler  has  been  guided  in  part  by  the  scope  of  exist- 
ing casebooks  on  the  subject,  and  in  part  by  his  own  experience  during 
some  twenty  years  of  a  fairly  active  general  practice.  It  is  hoped  that 
the  result  may  prove  reasonably  satisfactory. 

The  last  group  of  subjects  involves  little  that  belongs  to  the  law 
of  evidence,  but  the  accepted  tradition  seems  to  require  that  they  should 
be  treated  in  connection  with  that  branch  of  the  law. 

Existing  casebooks  on  Contracts,  Conveyances,  and  Wills  largely 
ignore  certain  difficult  problems  of  construction,  and  for  the  lack  of 
suitable  collections  in  these  fields  the  teacher  of  evidence  must  continue 
to  deal  with  them  as  best  he  can  for  the  present. 

In  the  preparation  of  this  work  it  did  not  appear  worth  while  to  in- 
cumber it  with  any  extensive  citations  of  cases  accord  and  contra, 
where  it  appeared  sufficiently  important  reference  has  been  made  to 
various  works  and  compilations  in  which  the  cases  have  been  collected. 
In  conclusion,  the  compiler  of  this  collection  wishes  to  acknowledge 
his  great  indebtedness  to  the  work  of  Professor  James  Bradley  Thayer 
and  of  Professor  John  H.  Wigmore. 

E.  W.  HiNTON. 

University  of  CnicAOO, 
Sept.  1,  1919. 


TABLE  OF  CONTENTS 


CHAPTER  I 


The  Couet  and  The  Jubt 
Section  Page 

1.  The  Burden  of  Proof 1 

I.  The    Two   Burdens 1 

II.  Apportionment  of  the  Burdens 42 

2.  Judicial  Notice 89 

0.  Admission  and  Exclusion  of  Evi,dence 108 

CHAPTER  II 

Witnesses 

1.  Competency    125 

I.     Intelligence  and  Religious  Belief 125 

II.  Infamy    141 

III.  Interest   150 

(A)  At  Common  Law 150 

(B)  Under  Modern   Statutes 169 

IV.  Marital  Relationship 184 

V.     Official  Connection  with  the  Tribunal 204 

2.  Required  Witnesses  21G 

3.  Privilege   232 

I. .  Self   Incrimination    232 

II.  Professional  Confidence 273 

4.  Examination  of  Witnesses  301 

I,     Offers  of  Evidence  and  Objections 301 

II.     Examination  in  Chief   316 

III.  Cross-Examination  343 

IV.     Contradiction  and  Impeachment   374 

V.  Corroboration  and  Support 412 

CHAPTER  III 

Hearsay 

1.  The  General  Rule   427 

2,  Recognized  Exceptions 443 

I.    Reported  Testimony   443 

II.     Dying  Declarations   464 

III.  Admissions    482 

(A)  In  General   482 

(B)  Confessions 533 

IV.  Entries  and  Statements  Against  Interest 557 

V.     Entries  in  the  Regular  Course  of  Business 571 

VI.  Official  Registers  and  Reports 617 

VII.     Ret)Utation    641 

(A)  In  Regard  to  Rights  in  Land G41 

(B)  In  Regard  to  Persons 656 

HiNT.Ev.  (xi) 


Xll  TABLE   OF  CONTENTS 

Section  Page 

2.    Eecognizecl  Exceptions    (Continued) 

VIII.     Entries  and  Statements  in  Matters  of  Pedigree 6G1 

IX.     Spontaneous  Statements   6S3 

(A)  As  to  a  Mental  State 683 

(B)  As  to  Physical  Condition 714 

(C)  As  to  Otiier  Facts 728 

CHAPTER  IV 
Opinions  and  Conclusions 

1.  By  Ordinary  Witnesses 752 

2.  From  Expert  Witnesses  777 

3.  Opinion  Based  on  Examination  and  Comparison  of  Writings 79G 

CPIAPTER  V 

ClKCUMSTANTIAL   EVIDENCE 

1.  Character    817 

2.  Conduct    844 

3.  Miscellaneous  Facts   884 

4.  Physical  Objects  917 

CHAPTER  VI 
The  Best  Evidence 

1.  Contents  of  a  Document  937 

2.  Other  Facts   967 

3.  Degrees  of  Secondary  Evidence 980 

CHAPTER  VII 

« 

The  "Parol  Evidence"  Rule 

1.  Evidence  to  Vary,  Contradict,  or  Avoid  Certain  Written  Instruments  987 

2.  Extrinsic  Evidence  to  Aid  in  the  Construction  or  Application  of  Writ- 

ten Instruments  -.1042 


TABLE  OF  CASES 

[TITLES  OF   CASES  PRINTED   HEREIN   ARE   SET  IN   ORDINARY  TYPE.       CASES   CITED   IN 

FOOTNOTES    ARE   INDICATED    BT   ITALICS.      WHERE   SMALL   CAPITALS 

ARE  USED,   TUE  CASE  IS  REinSRRED  TO   IN  THE  TEXT] 


Page 

V.    Fitzcrerald 155 

Aiilholm    V.    People 078 

Abrahams    v.    Bunn 317 

Abrath  v.  North  Eastern  R.  Co...     18 

Ada7ii  V.  Ken- 231 

Adaius   V.   Arnold 374 

Adfims   V.    LlovA 265 

Aildams  v.    Seitziuger 562 

.^::tn:i  I^e  Ins.  Co.  v.  Milward. ..  636 

Allen   V.    Iim 1 

Allen  V.  United  states 494 

Alsop    V.    Bowtiell 777 

American    Ice   Co.   v.   Pennsj'lva- 

nia    R.    Co 806 

Amnions  v.    State 549 

Anchor  Milling  Co.  v.  Walsh....  591 

Angell    V.    Rosenbury 324 

Angus  v.  Smith,  Moody  d  Mullein  393 
Anheuser-Busch  Bracing  Ass'n  v. 

Hutmacher    952 

Anonymous   6,   184,  317 

Anonymous    4S4 

Argyle  v.   Hunt 92 

Arizona  d  N.  M.  R.  Co.  v.  Clarlc. .  300 

Ash    V.    Ash 10 

Ashland,    Inhabitants    of,    v.    In- 
habitants   of    IMarlborough 715 

Ashton,  Goods  of.  In  re 1071 

Atlanta  St.  R.  Co.  v.  Walker 774 

Attorney   General  v.  Hitchcock..  .•]82 
Attorney  General  v.  Le  Merchant  940 

Ativood    V.    Aticood 444 

Atwood    V.   Welton 3S1 

Ativood   V.    Welton 127 

Bacon   v.   Charlton 715 

Bains  v.  Railicay 303 

Bakeman  v.   Rose 408 

Baldwin    v.    Parker 78 

Bu7ik  V.  Kennedy 434 

Bank  of  Monroe  v.  Culver 575 

Banking  House   of   Wilcoxson   & 

Co.   V.    Rood 176 

Barfield   v.    Britt 38,471 

Barker  v.   Haskell 604 

Barker  v.  St.  Louis,  I.  :m.  &  S.  R, 

Co 743 

Barkly  v.   Copcland 305 


Page 

Barnes   v.    Trorapowsky 216 

Bauerman    v.    lladenius 500 

Beach  v.  Earl  of  Jersey 1047 

Beal    V.    Nichols o.j:^j 

Beard    v.    Boylan 101.'2 

Beaubien  v.   Cicotte 3^0 

Beebee  v.   Parker 044 

Beech   v.  Jones 330 

Bell  V.  Hannibal  d  St.  J.  R.  Co...  197. 

Benjamin  v.  Porteus 162 

Bcnoist    V.    Darby 231,658 

Benson  v.   United  States 154 

Bentley   v.   Cooke 185 

Berkeley   Peerage,   Case    0/..427,  648 

Berryman    v.    Wise 967 

Berty    v.    Dormer 42 

Bingham   v.   Cartwright 909 

Bird  V.  Great  Northern  R.  Co. . .     02 

Bird  V.   Keep 037 

Birt    V.    Barlow 617 

Bishop  of  Durham   v.   Beaumont  412 

Blackburn  v.  Crawford 295 

Blackburn   v.   Crawford 079 

Blackett    v.    Weir 157 

Blackwell  v.  State 237 

Blake   V.   People 753 

Boeck,  Appeal  of 1084 

Boeck's  Will,  In  re 1084 

Boileau  v.  Rutliu 4S6 

Boston  &  A.  R.  Co.  v.  O'Reilly. .. 

306,  725 

Bosvile  V.  Attorney  General 56 

Bowes  V.   Foster 1014 

Bowles   V.   Langtvorthy 220 

Boyden   v.    Moore ■ 433 

Boyer  v.  Sweet 587 

Boyle  V.  Wiseman 114 

Bradley  v.  Ricardo 376 

Braydon   v.    Goultnan 301 

Brazier,  Case  of 130 

Breedon    v.    Gill 429 

Bridgewater,    Town  of,   v.   Town 

of  Roxbury   603 

Bright  v.   Eynon 208 

Brister   v.    State 120 

Broderick  v.  Higginson 868 

Bromicich,    Case   of 428 

Brown  v.  Aitkcn 488 


HiNT.EV. 


(xiii) 


XIV 


TABLE   OF  CASES 


Page 

Brovm    V.    Brown 1051 

Brown   v.    Broion 157 

Bi'own  V.  Commonwealth 474 

Broicn  v.  Foster 275 

Brown   v.    Kendall 58 

Brotvn    v.    State 571 

Broicn    v.    'Walker 263 

Browning    v.    Flanagin 624 

Bryan   v.    State 234 

Buckbee  v.  P.  Holienadel,  Jr.,  Co..  1060 
Buckeye  Powder  Co.  v.  I)u  Pont 

Poxcder    Co 685 

Buekstaff  v.    Russell 314 

Buhrmaster  v.  Neio  York  Cent,  d 

E.   R.   R.   Co 896 

Bulkeley    v.    Butler 13 

Burdick   v.  United   States 262 

Burton  v.  Plummer 605 

Bushell,    Case    of 7 

Butcher  v.  Jarratt 943 

Byrd  V.   Cornmonivealth 146 

Cairns    v.    Mooney 118 

Caldwell   v.    Murphy 714 

Call   V.    Dunning 219 

Caminetti    v.    United    States 242 

Campaii  v.   Deivey 357 

Campbell   v.   People 692 

Canole  v.  Allen 197 

Capron  V.  Douglass 300 

Carpenter  v.    Carpenter 924 

Carpenters,  Brickmakers,  Brick- 
layers, Tylers  &  Plasterers, 
etc.,  Company  of,  of  Shrews- 
bury V.  Hay  ward 13 

Carr  v.  West  End  St.  R.  Co 869 

Carter    v.    Boehm 779 

Carver  v.  United  States 480 

Carver   v.    United   States 388,468 

Cashin  v.  New  York,  N.  H.  c£  H. 

R.    Co... 719 

Cates  V.   Hardacre 245 

Cazenove   v.   Vaughan 343 

Central  Vermont  R.  Co.  v.  White    28 

Champion   v.    McCarthy 675 

Charlotte-  Oil  &  Fertilizer  Co.  v. 

Rippy 183 

Charter   v.    Charter 1070 

Chase  v.  Maine  Cent.  R.  Co 842 

Chicago  City  R.  Co.  v.  Allen....  400 
Chicago  City  R.  Co.  v.  Carroll...  310 

Chichester  v.   Oxenden 1043 

Chichester   v.   Raymond 11 

CniLcoT    V.    White 1066 

Chisholm  v.  Beaman  Mach.  Co. . .  007 

Chisholm    v.    Kutsche 607 

Chlanda  v.  St.  Louis  Transit  Co.  290 

Church   V.   Perkins 329 

City  of  Netv  York  v.  Pcntz 782 

City  of  Winona  v.  Burke 103 

Clancey,  Case  of 141 


Pago 
Clancey  v.  St.  Louis  Transit  Co.  379 

Clapp  V.  Fullerton 772 

Clark   V.  Finnegan 137 

Clark  V.    Thias 177 

Clemens    v,    Conrad 363 

Clement   v.   Blunt 447 

Clement  v.  Packer 651 

Clifford   V.    Taylor 79 

Clift  V.   Moses 181 

Close   V.    Samm 919 

Cobden    v.    Kendrick 277 

Cocksedge  v.   Fanshaw 12 

Cole   V.    Gibson 940 

Coleman,   In  re 298 

College  v.   Levett 12 

Collins  V.  New  York  Cent.  &  H. 

R.    R.    Co 889 

Commins   v.   Mayor   &   Burgesses 

of  Oakhampton   159 

Commonivealth   v.    Best 75G 

Commonwealth   v.   Blood 952 

Commonwealth  v.  Brewer 122 

Commonwealth    v.    Cleary 422 

Commonwealth   v.   Cooper 466 

Cormnontcealth  v.  Cressinger. .. .  547 
Commonwealth  v.    Fitzgerald....  398. 

Commonwealth    v.    Furman 137 

Commonwealth    y.    Griffin 204 

Commonwealth    v.    Guiheen 422 

Commonwealth   v.   Hawkins 390 

Commonwealth  v.  Hayes 755 

Commomvealth    v.    Hudson 370 

Commonwealth    v.    Keuney 491 

Commonwealth  v.   Lawler 407 

Commonwealth  v.  Maddocks....  827 
Commonwealth  v.  Marzynski...  97 
Commonwealth   v.    Moinehan. .. .  755 

Commonwealth  v.   Morey 543 

Commonwealth    v,    Phelps 325 

Commonwealth  v.  Retkovitz 425 

Commonwealth    v.    Rivet 871 

Commonwealth    v.    Roddy 473 

Commonwealth  v.    Stevenson. .. .  670 

Commonwealth   v.    Stewart 431 

Commonwealth  v.   Wehster 41 

Company  of  Carpenters,  Brick- 
makers,  Bricklayers,  Tylers  & 
Plasterers,  etc.,  of  Shrewsbury 

V.    Ilay ward 13 

Compiler  v.  Brotoning 705 

Connor  v.    O'Donnell 795 

Conrad  v.  Griffey 391 

Consolidated     Coal     Co.     of     St. 

Louis  V.   Seniger 879 

Cook    V.    Barr 489 

Cooke  V.  Tanswell 222 

Coon    V.    McNelly 1078 

Cooper   V.    Marsden 582 

Corporation  of  Bewdley,  Case  of  316 

Corwin  v.    Walton 4S9 

Collerill   v.   Hobby 9GS 


TABLE  OF  CASES 


XV 


Counsiehnnn  v.  TTitchcoclc 

Count  Joannes,  The,  v.  Bennett. . 

Craufurd   v.    Blackburn 

Crease    v.    Barrett 

Crocker    v.    JIcGregor 

Crouiack    v.    Heatbcote 

Cronin  v.   Fitcbburg  &  L.    St.   R 

Co 

Cuba  R.  Co.  V.  Crosby 

Cu^   V.   Pcnn 

Cull  on    (T.ord)    v.    Johnson 

CnnliO:    v.    Sefton 

Currcn  v.  Craicford 

Curtis  V.  Bradley 


Pago 

2(;.", 

958 
GCfj 
G42 
899 
281 

72G 
87 
993 
11 
224 
583 
334 


Davenport   v.   Silvcy 832 

Davis   V.    Dinwoodj' 187 

Davis   V.    Hardy 16 

Dean  &  Chapter  of  Ely  v.  Stewart  350 

Delano  v.    Bartlett 56 

Denny   v.    Williams 31 

Derrick  v.  Wallace 418 

Detroit  &  M.  R.  Co.  v.  Van  Stein- 
burg    3d6,  760 

Dexter  v.   Booth 197 

Deybel,  Case  of 93 

Diamond  Glue  Co.  v.  Wietsychow- 

ski    331 

Dickerman  v.   Quincy  Mut.   Fire 

Ins.    Go 113 

Dickinson   v.   Shee 350 

Dickson  v.  Evans 43 

Didsbury   v.    Thomas 646 

Diggs   V.   United   States 242 

Dillon    v.    Crawly 482 

District  of  Columbia  v.  Armes. .  903 

Dixon  V.   Cooper 164 

Dohie  V.  Armstrong 77 

Doctor  Ley  field,  Case  of 937 

Dodge    v,    Bache 695 

Dodge   V.    Morse 596 

Doe   V.   Andrews 275 

Doe   V.    Dtuviford 218 

Doe    v.    Robson 558 

Doe   V.    Suckermorc 804 

Doe  ex  dem.  Beach  v.  Earl  of  Jer- 
sey      1047 

Doe   ex    dem.   Bingham    v.    Cart- 

969 


Avright 


Doe  ex  dem.  Chichester  v.  Oxen- 
den     1043 

Doe  d.  CniLcoT  v.  White 1066 

Doe  dem.  Church  v.  Perkins 329 

Doe  dem.  Fleming  v.  Fleming...  659 
Doe  ex  dem.  Freeland  v.  Burt. . .  .1012 
Doe  ex  dem.  Futter  v.  Randall..  661 

Doe  ex  dem.  Hick  v.  Dring 1064 

Doc  dom.  Jenkins  v.  Davies Ill 

Doe  dom.  Lord  Toynham  v.  Tyler  166 
Doe  dem.   Mayor  &   Burgesses  of 
Stafford    v.    Tooth 164 


Pago 
Doe  dem.  MoTesworth  v.  Sleeman  650 
Doe  dem.  Nightingale  v.  Maisey  168 
Doe  ex  dem.  Oldham  v.  Woliey.  .  226 
Doe  ex  dem.  Oxenden  v.  Chiches- 
ter     1047 

Doe  dem.  Patteshall  v.  Turford..  579 
Doe  ex  dem.  Perry  v.  Newton..  800 
Doe  dem.  Sutton  v.  Ridgway ....  465 
Doe,      Lessee     of     Didsbury     v. 

Thomas    646 

Doherty    v.    O'Gallaghan 298 

Dohmcn  Co.  v.  'Niagara  Fire  Ins. 

Go 616 

Dole  V.  Johnson 808 

Doncaster,  Mayor  of,  v.  Day....  443 

Donnelly  v.  United  States 568 

Dormer   v.    Parkhurst 11 

Duke  of  Newcastle  v.  Broxtowe.  .  648 
Duke  V.  Newcastle  v.  Hundred  of 

Broxtowe    53 

Dunbar    v.    Parks 207 

Duncan  v.  Atchison,  T.  d  S.  F.  R. 

Co 758 

Duncan  v.  Demean 919 

Dungan  v.   State 371 

Durham,  Bishop  of,  v.  Beaumont  412 

Drew   V.    Wis  wall ■ 10.34 

Dwyer   v.    Collins 945 

Dyer   v.   Best 335 


Eastern    Transportation    Line    v. 

Hcpe    

Eastman  v.  Boston  &  M.  R.  R... 

Eastman  v.    Moulton 

East  Tennesse,  V.  &  G.  R.  Co.  v. 

Daniel    

Ehy    V.    Travelers'    Ins.    Co.    of 

Uartford,    Conn 

Edgington  v.  United  States 

Edward  Seymour  (Sir),  Case  of. . 

Egbers    \.   Egbers 

Eldridge,  Case  of 

Ellicott   v.   Pearl 

I'^lliugwood   v.   Bragg 

Elliott  V.   Boyles 

Elliott  V.  Chicago,  M.  &  St.  P.  R, 

Co 

Elluiaker  v.  Buckley 

Elmer  v.  Fessenden 

Engel  v.  United  Traction  Co 

Engles  V.  Blocker 

Ent whistle  v.  Feighncr 

Epstein  V.  Pennsylvania  R.  Co... 

Ennan  v.  State 

Eslow  V.  Mitchell 

Evans  V.  Chicago,  M.  t£-  St.  P.  R. 

Co 


784 
746 
583 


747 
820 
940 
75 
317 
420 
806 
366 

29 
351 
699 
497 
950 
178 
300 
338 
985 

936 


Fairfield  v.   Lawson 1067 

Fairlie    v.    Uaslings 520 

Faunce  v.  Gray 5b6 


XVI 


TABLE    OF    CASES 


Page 

Faunce  v.   People 145 

B\  Dohmen  Co.  v.   Niagara  Fire 

Ins.    Co 616 

Felton,  Case  of 533 

Fimtcgan     v.     Fall     River     Oas 

Works    Co SOS 

Firemen's  Ins.  Co.  v.  Seaboard  Air 

Line   R.    Co 616 

First  Nat.  Bank  of  Hoopeston  v. 

Lake   Erie  &  W.   R.   Co 891 

Fisher   v.    Ronalds 264 

Fisher  &  Ball  v.  Carter 9G0 

Fitz-Harris  v.  Boiun 6 

Fltzpatricli  v.  United  States 241 

Fitzwalter  Peerage  Case,  The 802 

Flach  V.  Gottschallc  Co 177 

Fleming  v.  Fleming 659 

Floi/d  V.  Bovard 352 

Folkes  V.  Chadd 781 

Folsom  V.  Apple  River  Log-Driv- 
ing  Co 330 

Forbes  v.   Wales 226 

Forsyth    v.    i\^orc7-oss G04 

Foster   v.    Jolly 1003 

Foster   v.    Leonard S9 

Foster   v.    Pierce 256 

Foster  v.   Shepherd 708 

Fox    v.    Reil 216 

Francis,  In  re 695 

Franklin  v.  Eidd 181 

Fraunces  v.  Shotbolt 443 

Frazier  v.  Pennsylvania  R.  Co.. .  656 

Freeland   v.   Burt 1042 

Freeman  v.  Arkell 954 

Fi'ohs  V.  City  of  Dubuque 905 

Fumess  v.   Cope 575 

Futter  V.  Randall 661 

Gahagan  v.  Boston  &  L.  R.  Co. . . .  764 

Gale  V.   State 345 

Gardam  v.  Battcrson 865 

Garth  v.  Howard  <&  Fleming 526 

Gauss,  Ex  parte 266 

Gee  V.  Ward 672 

Gelott  V.  Goodspeed 226 

George  v.  Tate 1011 

Gifford  V.   People 408 

Gilbert  v.  Boyd 955 

Gilbert   v.   Duncan 971 

Gilchrist  v.  Bale 688 

Gilman  v.   Gross     1021 

Givens  v.  Pierson's  Adm'x 012 

Goddard   v.   Gardner 280 

Goddard  v.  Parr 306 

Godfrey  v.  Non-is 218 

Goodier  v.  Lake 117 

Goodright  v.   Moss 672 

Goods  of  Ashton,  In  re 1071 

Goodtitle  v.   Welford 303 

Goodtitle  dem.  Revett  v.  Braham  796 
Gordon   v.   Sea'etan 221 


Page 

Gould  V.   Hartley 607 

Gragg  V.  Learned 632 

Grant  v.  Gkant 1072 

Graves  v.  Colwell 77 

Graves   v.    Short 3 

Green  v.  Chelsea 648 

Green  v.  Metropolitan  St.  R.  Co.  291 

Green  v.  New  River  Co 160 

Green  v.  State 481 

Grenacre  v.  Filby 706 

Greener  v.  General  Electric  Co.. .  751 

Greenfield  v.  People 755 

Greer  v.  United  States 828 

Greinlce  v.  Chicago  City  R.  Co. . .  727 

Grierson  v.   Mason 1017 

Griffin  v.  Henderson 314 

Griffith    v.    Higinbotom 704 

Griffith   v,   Williams 800 

Grigg,  Case  of 184 

Grisicold  v.   Hart 183 

Groh's  Sons  v.  Groh 307 

Guardhouse   v.    Blackburn 1000 

Gunn  V.  Thruston 566 

Gurney  v.  Langlands 799 

Hadley  v.   Carter 686 

Haines   v.    Guthrie 670 

Hale  V.  Henkel 233 

Hall  V.  Phelps 218 

Hamann  v.  Milwaukee  Bridge  Co.  786 

Hamilton  v.  People 411 

Ham  d  Ham  Lead  &  Zinc  Inv.  Co. 

v.  Catherine  Lead  Co 178 

Hanawalt  v.   State 931 

Haney  v.  Donnelly 527 

Hanson  v.  Parker 499 

Harden   v.   Hays 385 

Hardy  v.  Merrill 773 

Hailngton  v.  Macmorris 484 

Harper  v.  United  States 823 

Harrington  v.  Inhabitants  of  Lin- 
coln      497 

Harris   v.    Neal 840 

Harris  v.  Rickett 1031 

Harrison   v.   Harrison 831 

Harten  v.  Loffler 1057 

Hartford  v.  Palmer 137 

Hartman's  Estate,  In  re 682 

Harvey    v.    Thorpe 983 

Hatch  V.  Fowler 976 

Haven  v.  Wendell 332 

Hawken  v.  Daley 335 

Hawkins  v.  Taylor 573 

Hayes  v.  Pitts-Kimball  Co 442 

Hayes  v.  Pitts-Kimball  Co 461 

Hays  V.  United  States 242 

Head  v.   Hargrave 10 

Hedge  v.  Clapp 390 

Heffron   v.    Gallupe 212 

Ilegler  v.  Faulkner 627 

Heike  v.  United  States 26o 


TABLE    OF    CASES 


XV  n 


Page 

Heiin  v.  United  States 552 

Hein   v.    Holdridge 841 

Hemenway   v.   Smith 2S6 

Heiuinsis    v.    Robinson 499 

Hemphill  v.   Hemphill 654 

UcnklG  V.  Rotjul  Assitr.  Co 992 

Henry  v.  Bank  of  Saliua 24S 

Henry   v.    Cole 93 

Hick   V.   Dring 1064 

High-am  r.  Ridgway 560 

Hill    V.   Commonwealth 732 

Hill   V.   State 4S2 

Hilts   V.   Calvin 980 

Hinners  v.  Edgewater  &  Ft.  L.  R. 

Co 922 

Hitchins  v.  Eardlcy 112 

Hodges  V.  Steward 92 

Holbrook    v.    McBride 302 

Hollingham   v.   Head 860 

Holmes  V.  Roper 305 

Holt  V.  United  States 40 

Holt  V.  United  States 237 

Hook  V.  Pagee 917 

Hooper  v.  Moore 410 

Hooper  v.  Southern  R.  Co 450 

Hopkins  v.    Neal 155 

Hopkins'  Will,  In  re 812 

Hopps   V.  People 818 

Home  V.   MacEenzie 320 

Hosford  V.  Rowe 563 

Houghton   V.  Burden 1011 

Houghton  V.  Jones 354 

House  V.  Beak 593 

Honse  V.   Metcalf 900 

How  V.  Hall 945 

Howard  v.  Patriclc 444 

Howard  v.   Smith 962 

Hoicell  V.  Look 363 

Hroneck  v.   People 131 

Hubbard  v.  Androscoggin  &  K.  R. 

Co 898 

Hughes  V.  Delaware  &  H.  Canal 

Co 518 

Hughes  V.  Williams 84 

Humphrey  v.  Dale 1027 

Humphreys  v.  Budd 94 

Hunt  V.  Blackburn 299 

Hurlbut  V.  Meeker 180 

Hurst  V.  State 440 

Hutton   V.   Warren 1026 


Ilderton  v.   Atkinson 157 

Illinois  Cent.  R.  Co.  v.  Prickett. .  843 
Illinois  Cent.  R.  Co.  v.  Taylor...  184 

Illinois  Steel  Co.  v.  Muza 450 

Ingraham  v.  Bockius.'. 603 

Inhabitants  of  Ashland  v.  Inhabi- 
tants of  Marllx)rough 715 

Inhabitanls   of    North    Brookfleld 
V.  Inhabitants  of  Warren 667 

HiNT.Ev.— b 


PaRo 

Inhabitants  of   Salem    r.   Inhabi- 
tants  of  Lynn »  691 

Insurance  Co.   v.  Weides 336 

Ivat  V.  Finch 560 

Jack  V.  Kansas 263 

Jacobs  V.   Layhorn 306 

Jarchow  v.   Qrosse 682 

Jenkins  v,  Davies m 

Jennings  v.  Prentice 251 

Jewell  V.  Parr 22 

Joannes   (Count)   v.   Bennett 958 

Johnson  v.  Armstrong 381 

Johnson  v.  Carlin 979 

Johnson  v.  Lawson 664 

Johnson  v.  State 288 

Jones  V.  Davers 90 

Joties  V.  Mason 218 

Jones  V.  Randall 940 

Jones  V.    State 479 

Jory  V.  Orchard 941 

Joseph  Taylor  Coal  Co.  v.  Dawes  870 

J.  S.  Wcrden,  The 336 

Juneau  Bank  v.  McSpedon 445 

Juniata  Bank  of  Pennsylvania  v. 
Brown    594 

Kain  v.  Old 993 

Kaines  v.  Knightly 987 

Eaiisas  City  S.  B.  R.  Co.  v.  Nor- 

cross 759 

Kaplan  v.  Gross 346 

Keating  v.  Price 992 

Keene   v.   Meade 970 

Kempsey   v.   McGinniss 786 

Kent  V.  Agard 1008 

Kent  V.  Garvin 605 

Kimbrough  v.  Chicago  City  R.  Co.  792 

Kimmel  v.    Kimmel 404,  656 

Kine   v.   Beaumont 948 

King,  The,  v.  Edwards 245 

King,  The,  v,  Fisher 853 

King  v.  Gallun 95 

King,  The,  v.  Harringworth 218 

King,  The,  v.  Inhabitants  of  Bath- 
wick     187 

King,  The,  v.  Inhabitants  ofCas- 

tleton     953 

King,     Tlie,     v.     Inhabitants     of 

Cheadle    1013 

King,  The,  v.  Inhabitants  of  Cop- 
pull    9GS 

King,  The,  v.  Inhabitants  of  Har- 

bome   49 

King,  The,  v.  Inhabitants  of  Hard- 
wick    504 

King,  The,  v.  Inhabitants  of  Twyn- 

ing    48 

King,  The,  v.  Inhabitants  of  Wo- 

burn     233 

King,  The,  v.  John 404 


XVlll 


TABLE    OP   CASES 


Page 

King,  The,  v.  Paine 428 

King,  The,  v.  Priddle 144 

King,  The,  v.  Stone 108 

King,  The,  v.  Turner 46 

King,  The,  v.  White 129 

Knapp  V.  Harden 1029 

Knapp  V.  Salsbury (31 

Knapp  V.   Wing 314 

Knickerbocker  Ice  Co.  v.  Pennsyl- 
vania R.  Co 896 

Knowles  v.  People 288 

Krapp  V.  Metropolitan  Life  Ins. 
Co ; 775 

Ladd  V.  Missouri  Coal  &  Rlin.  Co.  313 

Lambert  v.   Armentrout 381 

Lane  v.  Sargent 104 

Lane  v.  Stanhope 1047 

Lassone  v.  Boston  •&  L.  R.  R 598 

Lawes  v.  Reed 327 

Laiorence  v.  Barker 335 

Latorence  v.  Kimball 561 

Layson  v.  Cooper 197 

Lazier  v.  Westcott 101 

Leavea  v.  Southern  R.  Co 178 

Lee  V.  Oansel 146 

Lefebure  v.  Worden 572 

Lessee  of  Didsbury  v.  Thomas. . . .  646 

Lessee  of  Pi.eece  v.  Robson 558 

Lewes'  Trust,  In  re 51 

Lewis  V.   Fog 159 

Lewis   V.   Freeman 752 

Leyfield  (Doctor),  Case  of 937 

Lindner  v.  St.  Paul  Fire  d  Marine 

Ins.   Co 489 

Lisbon  v.  Lyman 79 

Logan  V.  United  States 146 

Logan  v.  United  States 170 

Lohman  v.  People 250 

Lomax  v.  Lomax 1082 

Loomis  V.  Norman  Printers'  Sup- 
ply   Co 274 

Lord  Cullen  v.  Johnson 11 

Lord  Morley,  Case  of 457 

Lord  Say  &  Seal,  Case  of 274 

Lord  Teynham  v.  Tyler 166 

Louisville  &  N.  R.  Co.  v.  McClish  415 

Luby  V.  Hudson  River  R.  Co 737 

Lund  V.  Inhabitants  of  Tyngsbor- 

ough    733,  756 

LxjTTEREi.  V.  Reynell 421 

Lynn  v.  Eockaday 199 

MacAl  man   v.  Cleason 1039 

McCunc  V.  Ooodwillie 300 

MacDonald    v.    Longbottom 1055 

McDonald  v.  Metropolitan  St.  R, 

Co 32 

McDonald  v.  Pless 210 

MacDonnell  v.  Evans 361 

Mace  V.  Reed 399 


Page 

McOoicin  V.  Menken 53 

McKane  v.  Hoicard 840 

MacKelly,  Case  of 92 

McKenzie  v.  State 154 

McLaren  v.  Gilliftpie 277 

MacLean  v.  Scripps 951 

McMillen  v.  State 693 

McPherson  v.  Rathbone 227 

Mahaska  County  v.  Ingalls 561 

Mahlstedt  v.  Ideal  Lighting  Co..  .  202 
Mahoney's  Adm'r  v.   Rutland  R. 

Co 341 

Makarell  v.  Bachelor 91 

Makin    v.    Attorney    General    for 

New  South  Wales 849 

Manning  v.   Lechmere 557 

Mant  V.  Mainwaring 157 

Marr  v.  Hill 714 

Marnage  v.  Laxorence 573 

Marston  v.   Downes 293 

Martin  v.  Eorrell 164 

Martyn  v.  Jackson '.       7 

Mary  Grigg,  Case  of 184 

Mason  v.  United  States 270 

Mathes  v.  Robvnson 584 

Mathcics  V.  Livingston 486 

Mattison  v.  Mattison 335 

Mattox  V.  United  States 393 

Maugham  v.  Hubbard 330 

INIaverick  v.  Eighth  Ave.  R.  Co. . . .  195 

Mawson  v.  Hartsink 402 

Maxwell's  Ex'r  v.  Wilkinson 340 

Mayor  v.  Lambert 2 

Mayor,  etc.,  of  City  of  Neic  York 

V.   Pentz 782 

Mayor  of  Doncaster  v.  Day 443 

Mayor   &   Burgesses   of   Stafford, 

Dow  dem.,  v.  Tooth 164 

Meighen  v.  Bank 864 

Melhuish  v.  Collier 380 

Menasha    Woo  dem,    Ware    Co.   v, 

Harmon    950 

Mercer  v.  State 424 

Merle  v.  More 292 

Merriman   v.   Wickersham 173 

Metcalfe  v.  Deaue 205 

Metropolitan  St.  R.  Co.  v.  Gumby  448 

Miles  V.  Loomis SOS 

Miles  v.  United  States 189 

Miller  v.  Hackley 863 

Miller  v.  Northern  Pac.  R.  Co. . . .  639 

Miller  v.  People 544 

Miller  v.  Smith 760 

Miller  v.   Travers 995 

Mills  V.  Lumber  Co 685 

Minneapoli'S  Mill  Co.  v.  Minneapo- 
lis d  St.  L.  R.  Co 458 

Minnesota  Debenture  Co.  v.  John- 
son     976 

Mississippi  Cent.  R.  Co.  v.  Turn- 
agoi    "^18 


TABLE    OF    CASES 


XIX 


Pa  Re 

Mitchell   V.    Jenkins 19 

MolRtt  V.  Couuec'tieut  Co 875 

Molesworth    v.    Sleeiuan G50 

Monnhan  v.  City  of  Worcester 832 

Monta5?ue  v.  Dougan 090 

Montf;omery  '&  E.  R.  Co.  v.  I\Ial- 

lette   63 

Moore  v.  Bray 278 

Moore  v.  Meacliam 578 

Morewood  v.  Wood 641 

Morish  v.  Foot 160 

Moiiey  (Lord),  Case  of 457 

Morris   v.    McClellan 241 

Morris  &  Co.  v.  Industrial  Board 

of  Illinois  639 

Morse  v.  Minneapolis  &  St.  L.  R. 

Co 496 

Mo7'ss  V.  Morss 207 

Mortimer  v.  MeCallan 941 

Morton  v.  Fairbanks 918 

Morton  v.  Eeidorn 84 

Moses  V.  Boston  &  M.  R.  R 164 

Murdock  v.   Sumner 207 

Murphy  v.   State 213 

Murray   v.   Supreme   Lodge,   New 

England  Order  of  Protection. . .  630 

Musick  V.  Borough  of  Latrobe 757 

Mutual  Life  Ins.  Co.  v.  Hillmon. .  697 
Myefs  Will,  In  re 773 

Nearpass  v.  Gilman 181 

Newcastle,  Duke  of,  v.  Broxtowe  648 
Newcastle  (Duke  of)  v.  Hundred  of 

Broxtowe   53 

Neiccoml),  Matter  of 692 

New    Jersey     Steamboat    Co.    v. 

Brockett 741 

New  Orleans  &  N.  E.  R.  Co.  v.  Har- 
ris       68 

Newson  v.  Luster 229 

Nichol  V.  Godts 1053 

Nightingale  v.  Maisey 168 

Ifix  V.  Cutting 160 

Nolley  V.  Holmes 586 

'\^oonan  v.   Caledonia   Gold   Min. 

Co 307 

Norden  v.  Williamson 156 

North  Bank  v.  Abbot 581 

North  Brookfield,  Inhabitants  of, 

V.  Inhabitants  of  Warren 667 

Northern  Pac.  R.  Co.  v.  Urlin 721 

Northivcstern  Union  Paclcet  Co.  v. 

Clongh 314 

Nowell  V.  Davies 166 

Noyes  v.  Boston  &  M.  R,  R 873 

Nussear  v.  Arnold 505 

Oakes  v.  United  States 641 

CCoigley,  In  re 403 

O'Connor  v.  Marjoribanks 198 

Oetien  v.  Central  Leather  Co 107 


Pa!Te 

Oldham  v.  Wolley 220 

Omichund  v.  Barker 12."j 

Orr  V.  Morice 223 

Orscheln  v.  Scott 920 

Otoner  v.  Bee  Hive  Spinning  Co.. .  941 
Oxenden  v.  Chichester 1047 


>••••••••• 


Pacific  Express  Co.  v.  Dunn 

Page  V.  Faucet 

Pakas  V.  United  States 

Park  V.  New  York  Cent.  &  H.  R. 

R.   Co 

Parris  v.  Jenkins 

Parrott  v.  State 

Pastene  v.  Pardini 

Patten  v.  Ferguson 

Patten  v.  Moor 

Patteshall  v.   Turf ord 

PauU  V.  Brown 

Peaceable  v.  Watson 

Pearse  v.  Pearse 

Peck  V.  Valentine 

Pelitier  v.  Chicago,  St.  P.,  M.  &  O. 

R.   Co 

Pelzer  v.  Cranston 

Pendock  v.  MacKender 

Penn  v.  Bibby 

Pennsylvania  R.  Co.  v.  Books..,. 

People  V.  Adams • 

People  V.  Arnold 

People  V.  Bill 

People  V.  Brockett 

People  V.  Brooks. . 

People  V.  CardiUo 

People  V.  Charlie  Lee. 
People  V.  Christian. . . 

People  V.  Davis 

People  V.  Del  Vermo. 
People  V.  Dupounce . . 
People  V.  Eastwood . . . 

People  V.  Forbes 

People  V.  Garbutt 

People  V.  Gardner 

People  V.  Oluck 

People  V.  Goodman. . . 
People  V.  namilton. .. 

People  V.  Hill 

People  V.  Hinksman. . 
People  V.  Jennings. . . 

People  V.  Katz 

People  V.  Kelly 

People  V.  Kennedy 

Peopl-e  V.  Kingcannon. 

People  V.  I^amar 

People  V.  McElvaine. . 

People  V.  Mayes 

People  V.  Milner 

People  V.  Molineux. .. 
People  V.  Mornson... 

People  V.  Murphy 

People  V.  Roach 


970 

90 

148 

658 
430 
493 
58 
730 
27.1 
579 
16.', 
561 
287 
338 

36 
580 
143 
310 
870 
233 
369 
152 
550 
393 
366 
634 
986 
528 
749 
239 
770 
255 

69 
237 

42 
360 
424 
709 
824 
816 
855 
326 
817 
935 
836 
789 

99 

73 
543 
304 
296 
816 


XX 


TABLE  OP   CASES 


Page 

People  V,  Rodawald S34 

People  v.  Ryan 554 

People  V.  Storrs 814 

People  V.  Thorn 926 

People  V.    Trybus: 245 

People  V.  Tyler 237 

People  V.  Wood 440 

People  V.  Youngs T90 

Peoria  Cordage  Co.  v.  Industrial 

Board  of  Illinois 638 

Peoria  Gasliglit  &  Coke  Co.  v.  Pe- 
oria Terminal  R.  Co 911 

Perry  v.  Newton 800 

Peters  V.  Fogarty 206 

Peterson   v.    Merchants'    Elevator 

Co 171 

Peugli  V.  Uavis 1004 

PhiladelpMa  &  T.  R.  Co.  v.  Stlmp- 

son  354 

Phillips  V.  Cole 557 

Pierson  v.  People 294 

Piggot  V.  Eastern  Counties  R.  Co.  884 

Pinney  v.  Orth 183 

Pitcher  v.   People 258 

Pitman  v.  Maddox 572 

Pitt  V.  Carey 798 

Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 

McGrath   446 

Plant  V.  Taylor 670 

Poerson  v.  People 294 

Pool  V.  Bridges 729 

Pope  V.  Allis 489 

Porter  v.  Warmg 103 

Post  V.  Kennerson 584 

Potter  V.  Cave 904 

Potter  T.  Inhabitants  of  Ware 276 

Powers  V.  United  States 360 

Prader  v.  National  Masonic  Ace. 

Ass'n    289 

Prentiss  v.  Russ 1009 

President,    etc.,    of    Third    Great 
Western  Turnpike  Road  Co.  v. 

Loomis    372 

Preston  v.  Merceau. 9SS 

Pkice  v.  Lord  Tobrington 580 

Priddy  v.  Boyce 630 

Prince  v.  Blackburn 218 

Prince  v.  Samo 517 

Prince  v.  Smith 596 

Prior  V.  Powers 204 

Prussing  v.  Jackson 964 

Putnam  v.  United  States 326 

Queen,  Case  of 362 

Queen,  The,  v.  Bliss 649 

Queen,  The,  v.  Inhabitants  of  Ly- 

deard  St.  Lawrence 430 

Queen,    The,    v.    Inhabitants    of 

Worth    596 

Queen,  The,  v.  Jenkins 468 

Queen,  The,  v.  Muscot 150 


Page 

Queenan  v.  Oklahoma 773 

Quin  V.  Lloyd 304 

Quinn  v.  People 930 

Railway  v.  Fishman 789 

Rasmusson  v.   2\'orth   Coast   Fire 

Ins.  Co 842 

Rawson  v.  Haigli 688 

Read  v.  Brockman 940 

Redding  v.  Redding' s  Estate 805 

Reece  v.  Robson 558 

Reed  v.  Jackson 646 

Reeves  v.  Symonds 158 

Reg.  V.  Baldry 539 

Reg.  V.  Bedding  field 728 

Reg.  V.  Boyes 266 

Reg.  V.  Brown 412 

Reg.  V.  Cos  &  Railton 283 

Reg.  V.  Exeter 559 

Reg.  V.  Francis 854 

Garbett 251 

Hill 138 

Hind 473 

Reg.  V.  Jarvis 540 

Reg.  V.  lAllyman .424 

Reg.  V.  Mitchell 348 


Reg.  V. 
Reg.  V. 
Reg.    V. 


Reg.  V.  Moore 536 

Reg.  V.  Muscot 38 

Reg.  V.   Riley 397 

Reg.  V.  Rowton 656,  764 

Reg.  V.  Thompson 537 

Reg.   V.   Winsor 153 

Revett  V.  Braham 796 

Rex  V.  Almon 15 

Rex  V.  Atwood 112 

Rex   V.    Azire.,^ 185 

Rex  V.  Ball 844 

Rex  V.  Boston 151 

Rex  V.   Cator 798 

Rex  V.  Clarke 414 

Rex   V.   Frederick 185 


Rex  V.  Hodgson 


i95 


Rex  V.  Muggins 159 

Rex  V.  Inhabitants  of  Carcinion. .  363 
Rex    V.    Inhabitants    of    Castell 

Carcinion 142 

Rex  V.  Jenkins 535 

Rex  V.  Jones 535 

Rex  V.  North  Petherton 623 

Rex  V.  Oldroyd 374 

Rex  V.  Paine 517 

Rex  V.  Row,  Russell  £  Ryan 538 

Rex  V.  St.  Martin's 573 

Rex   V.  Simmons 205 

Rex  V.  Smith 451 

Rex  V.  Stannard 817 

Rex  V.  Teal 146 

Rex  V.  Thatcher 448 

Rex  V.  Travers 129 

Rex  V.  Yoke 845 

Rex  V.  Warden  of  the  Fleet 402 


TABLE    OF    CASES 


XXI 


Page 

Rex  V.  WafRon 396 

Rex   V.   Williams 134 

Rex  V.  Worsenliam 233 

Reynolds,   Ex  parte 266 

Reynolds    v.   Maryland    Casualty 

Co 53 

Reynolds  v.  United  States 456 

Rich  V.  Jackson 9S9 

Rich  deni.  Lord  CuUen  v.  Johnson     11 

Richardson  v.  Mellish 623 

Rideout  v.  Newton 805 

Ridgivay  v.  Philip 521 

Riggs  V.  Tayloe 956 

Ringhouse  v.  Keevor 660 

Rison  V.  Browning 934 

Robb,  Appeal   of 201 

Robinson  v.   Gilman 444 

Robinson  v.   New   York   Elevated 

R.  Co 913 

Roche  V.  Brooklyn  City  &  N.  R. 

Co 718 

Roe  dem.  Beebee  v.  Parker 644 

Rogers  v.  Brent 108 

Root's  Estate,  In  re 1075 

Rosen  v.  United  States 148 

Rosenhaum  v.  PodolsUy 986 

Rosenberg   v.    Sheahan 308 

Rudd,  Case  of 185 

Rush  V.  Smith 344 

Russell  V.  Coffin 417 

Ryder  V.  Womhwell 91 

Sackheim  t>.  Pigueron 29 

Salem,  Inhabitants  of,  v.  Inhabit- 
ants of  Lynn 691 

Salte  V.  Thojnas 619 

Samson  v.  Yardley 447 

Samuel   v.  People 259 

Samuels  v.   Commonwealth 148 

Sandwell  v,   Saudwell 327 

Sarhach  v.  Jones 141 

Say  &  Seal's  (Ix)rd)  Case 274 

Scotland  County  v.  Hill 311 

Scott  V.  Bassett 349 

Scott  V.   Lloyd 1012 

Scott  V.  McCann 349 

Scott  V.  United  States 400 

Scroop's  Trial 232 

Searle  v.  Barrington 563 

Semple  v.  Gallery 120 

Senat  v.  Porter 490 

Sevmour,  Case  of 040 

Shaddock  v.  Town  of  Clifton 509 

Shatter  v.   Bumstead 703 

Sharp  V.  Blanton 603 

Sharp  V.  United  States 915 

Shattuck  V.  Stoueham  Branch  R. 

R 758 

Shaw   V.    New  York  Elevated   R. 
Co 450 


Page 

Shea  V.  Glendale  Elastic  Fabrics 

Co 901 

Sheldon  v.  Hudson  River  R.  Co.. .  886 

Shcpard  v.  Parker 372 

Shuttleworth  v.  Bravo 166 

Siegley  v.  Simpson 1080 

Sir  ICdward  Seymour,  Case  of . . . .  940 

Sitler  V.  Qehr 622 

Slade,  Case  of 4 

Slattcry  v.  Poolcy 963 

Slotofski   V.   Boston    Elevated   R. 

Co 122 

Smart  v.  Kansas  City 909 

Smith  V.   Blakey 566 

Smith  V.  Blandy 517 

Smith  V.  Pragcr 161 

Smith  V.   Smith 591 

Smith  V.   Wilson 1050 

Smith  dem.  Doi-mer  v.  Parkhurst    11 

Sparf  V.  United  States 511 

Siiarke  v,  Middleton 273 

Sparr  v.  Wellmari 510 

Spenceley  v.  Schulenhurgh 275 

Spencer  v.  State 456 

Sperry  v.  Moore's  Estate 348 

Spokane  &  I.  E.  R,  Co.  v.  United 

■States 785 

Squires  v.  O'Connell 610 

Stafford  v.   Tooth 164 

Staudewick  v.  Hopkins 209 

Stange  v.  Wilson 1032 

Stai^leton  v.  Crofts 192 

Stark  Electric  R.  Co.  v.  McGinty 

Contracting  Co 1038 

Starratt  v.  Mullen 66 

State  v.  Abbott 368 

State  V.  Able 461 

State  v.  Adams 847 

State  V.  Ah  Chney 237 

State  V.  Barrington   547 

State  V.  Barrows 293 

State   V.    Bartlctt 239 

State  V.  Benner 322 

State  V.  Blydenhurg 728 

State  V.  Broughton 542 

State  V.  Cai-son 370 

State  v.  Carta 554 

State   V.   Crotts 324 

State  V.  Draper 476 

State  V,  Evans 1S5 

State  V.  Fitzgerald 275 

State  V.   Foster 258 

State  V.  Gardner 261 

State  V.  Garrett 235 

State  V.  Uawley 42 

State  V.  Hill 857 

State   V.    Horn 102 

State  V.  Bouser 458 

State   V.   Hudspeth 747 

State  V.  Hyde 108 

State  V.  llgenfritz 711 


XXll 


TABLE   OF   CASES 


Page" 

State  V.  Jones 545 

State  V.  Klinger 72 

State  V.  Kodat 202 

State  V.  Kwiatkotcski 328 

State  V.  Loponio 276 

State  V.  McO'Blenis 453 

State  V.  Main 99 

State  V.  Manchester  &  L.  B.  R 866 

State  V.  Michael 135 

State  V.  O'Connor 348 

State  V.   Patterson 537 

State  V.  Patton 329 

State  V.  Potter , 830 

State  V.  Powell 550 

State    V.  Poiccll 544 

State  V.   Pruett 756 

State  V.   Slack 376 

State  V.  Soper 776 

State  V.'  Staples 456 

State  V.  Taylor 401 

State  V.  Terrell 808 

State  V.  Thompson 812 

State  V.  Thorp 753 

State  V.  Tilghman 771 

State  V.  Turner 237 

State  V.   Waldron 858 

State  V.  Wentworth 441 

State  V.  Wentworth 241 

State  V.  Wh  itsett 694 

State  ex  rel.   Rison  y.  Browning  934 

Stebhins  v.  Duncan 231 

Steer  v.  Little 318 

Stevens  v.  Whitcomb 483 

Stewart  v.   Smith 877 

Stiehel  v.  Grosberg .1021 

Staner  v.  Royar 307 

Stow  V.   Converse 839 

Stowe  V.  Quemer 116 

Stuhlmuller  v,   Ewing 200 

Sullivan  v.  Corn  Products  Refin- 
ing Co 181 

Sutton  V.  Ridgway 465 

Swing  V.  Cloquet  Lumber  Co 965 

Swing  v.  Cloqtiet  Lumber  Co 963 

Swire  v.  Bell 218 

Sydleman   v.   Beckwith 761 

TalJ  V.  Eosmer 301 

Taylor  v.  Grand  Trunk  R.  Co 507 

Taylor  v.  Grand  Trunk  B.  Co 716 

Taylor   v.    Peck 974 

Taylor  Coal  Co.  v.  Dawes 870 

Temple  v.   Commonwealth 260 

Teunant  v.  Hamilton 358 

Texas   &  P.   R.   Co.   v.   Hartford 

Fire   Ins.   Co 894 

Texas  d  P.  R.  Co.  v.  Rosborough  893 

Teynham  (Lord)  v.  Tyler 166 

Theobald  v.  Tregott 164 

Thomas  v.  Jenkins 110 

Thompson  v.  Bridges 685 


Page 

Thompson  v.  Ish 298 

Thompson  v.  Oicens 376 

Thompson  v.  Trevanion 72S 

Throckmorton  v.  Holt 701,  813 

Theogmokton   v.   Walton 45 

Toomey  v.  London,  B.  &  S.  C.  R. 

Co 20 

Town  of  Bridgewater  v.  Toiim  of 

Roxbury    603 

Toicnsend  v.  Ives 231 

Tracy  v.  People 470 

Travelers'  Ins.  Co.   of  Chicago  v. 

Mosley    716,  739 

Trelawney  v.  Coleman 683 

Trumhull  v.  O'Hara 1021 

Trustees  of  Freeholders  &  Com- 
monalty of  Town  of  Southamp- 
ton v.  Jessup  1057 

Tuberville  v.  Savage 


683 
Turner  v.   American   Security   &' 

Trust   Co 775 

Turner  v.  Pearte 301 

Underhill  v.  Hernandez 105 

Union  Bank  v.  Knapp 585 

United  States  v.  Gooding ,523 

United  States  v.  Graft 952 

United  States  v.  Eamburg-Ameri- 
kanische    Packet-Fahrt    Actien 

Gesellschaft  Co 107 

United  States  v.  Reid 170 

Vaillant  v.  Dodemead 275 

Valentine  v.  Piper 229 

Vantlne  v.  Butler 682 

Vaughan,  In  re 237 

Verdi  v.  Donahue 879 

Viele  V.  McLean 494 

Ville  de  Varsovie 144 

Vrooman  t.  King 515 

Wagner  v.  Chicago,  R.  I.  &  P.  R. 

Co 935 

Wakelin  v.  London  &  S.  W.  R.  Co.  22 

Waldron  v.  Coombe 621 

Waldron  v.  Ward 273 

Wallace  v.  Wallace 282 

Wallis  V.  Littell 1021 

Ware  v.  Allen ^ 1021 

Warickshall,  Case  of 536 

Warner  v.  Maine  Cent  R.  Co 530 

Warner  v.  Press  Pub,  Co 202 

Warren  v.  A.  B.  Mayer  Mfg.  Co.. .  993 

Warren  v.  Greenville 557 

Warren  v.   Nichols 458 

Watts  V.  Brains 3 

Webster  v.  Lee 354 

Weeks  v.  Sparke 644 

Weeks  v.  United  States 233 

Welch  v.  Ifeio  York,  N.  H.  d  H.  R. 

Co 660 


TABLE    OF    CASES 


XXlll 


Page 

VVellman  v.  Jones 328 

Wendovcr  v.   Baker 177 

Wontworth  v.  Lloyd 2S7 

Werden,  J.  S.,  The 330 

West  Chicago  St.  R.  Co.  v.  Ken- 
nelly    723 

Westcyver  v.  Life  Ins.  Co 294 

West  Virginia  Architects  d  Builds 

ers  V.   Steicart 612 

Wethcrbee  v.  N orris 407 

Wlieaton  Roller  Mill  Co.  v.  John 

T.  Noye  Mfg.  Co 1035 

Wlieeler  v.  Rockett 83 

Wheeler  v.  United  States 135 

Whipple  V.  Broivn  Bros.  Co 1011 

Whipple  V.   Rich 390 

Whitcomb   v.   Whiting 503 

White  V.  United  States 620 

Whiteley   v.    King 094 

Whithed  v.  Wood 175 

Whitnash  v.  George 59S 

Whyman  v.  Oarth 220 

Wiedcman  v.  Walpole 494 

Wiggins  V.  Burkhain 493 

Wigglesworth   v.    Dallison 1024 

Wihen  v.   Law 622 

Wilcox  V.  Downing 593 

Will- ins  V.  WilJcins 224 

Wilkinson  v.  Kitchin 11 

Willard  v.  Darrah 1070 

Williams  v.  Great  Northern  R.  Co.  721 
Williams  v.  Inhabitants  of  Win- 

throp    909 

Williams   v.   Johnson 185 

Williams  v.  Jones 1018 

Williams  v.   Judy 514 


Page 

Williams  v.  Quehroda  R.  Co 286 

Williams  v.  Wilcox 304 

Williams'  Adm'r  v.  Williams 317 

Willis  V.  Bernard 684 

Wills  V.  Russell 355 

Wilson  V.  Hodges 45 

Wilson  V.  Powers 1020 

Wilson  V,  Rastall 279 

Wilson  V.   Sherburne 1030 

Wilson  V.  United  States 537 

Wiuans  v.  Attorney  General 34 

Wi/nn  V.   Grier 777 

Winn  V.  Patterson 981 

Winona,  City  of,  v.  Burke 103 

Winters  v.   Winters 298 

Wu^e  V.  Wynn 682 

Wistrand  v.  People 929 

Wood  V.  Braddick 522 

Wood  V.  Broadley 196 

Woods  V.  People 833 

Woodworth  v.  Detroit  United  Ry.  907 

Worrall  v.  Jones 157 

Wray  v.  State 348 

Wright  V.  Beckett 377 

Wright  v.   Crump 3 

Wright  V.  Doe  dem.  Tatliam.  .229,  435 
Wright-Blodgett     Co.     v.     United 
States    87 

Yardley  v.  Arnold 166 

Young  V.  Johnson 778 

Young  V.  People 951 

Zollicoflfer  v.  Turney 246 

Zucker  v.  Whitridge 881 


CASES  ON  EVIDENCE 


CHAPTER  I 
THE  COURT  AND  THE  JURY ' 


SECTION    1.— THE   BURDEN   OF   PROOF 
I.  The;  Two  Burde^ns 


ALLEN  V.  HILL. 

(Court  of  Queen's  Bench,  1591.     Cro.   Eliz.  238.) 

Ejectione  firmze,  for  a  house  in  Cornhill,  London.  Upon  a  special 
verdict  the  case  was,  Fr.  Benson  being  seised  of  the  house  in  fee,  4 
Eliz.,  devised  it  to  Agnes  his  wife  for  life;  and  after  to  the  heirs  of 
his  body,  the  remainder  to  Th.  Benson  his  brother  in  fee :  "Proviso, 
that  if  the  said  Agnes  clearly  departs  out  of  London,  and  dwell  in 
the  country,  that  then  she  shall  have  a  rent  out  of  the  said  house, 
etc."  And  found  further,  that  Francis  died  without  issue,  and  that 
Th.  Benson,  died  and  that  R.  is  his  heir;  and  that  afterwards,  15  Eliz., 
Agnes  totaliter  departed  from  London,  and  went  to  Milton  in  Suffolk. 
And  after  the  said  R.  before  entry  made  by  him  and  the  executor  of 
Francis  released  to  Agnes;  and  afterwards  entered,  and  let  to  the 
plaintiff;  and  that  Agnes  married  one  Huggins;  and  the  defendant 
entered  by  his  commandment.  The  substance  of  the  matter  was.  If 
this  Proviso  does  determine  the  estate  before  entry?  for  if  so,  she, 
was  tenant  at  sufferance,  and  the  release  could  not  inure  to  her  es- 

1  The  subject-matter  of  this  chapter  is  not  strictly  a  part  of  the  law  of 
evidence,  but  belongs  rather  to  the  larger  topic  of  trial  procedure.  The  Ijuy 
oli_2\'idence  proper  consists  of_a  body  of  rules  prescribing  what  niatforTu 


flJU^^t^v  not,  be  received  to  establish  a ny^agaeii  proi)()s[timi  of^^act.  It  is  not 
directly  concernecT  with  the  procedural  steps  to  bring  such  material  before 
the  tribunal,  or  with  determining  which  party  has  the  burden  of  producing 
it.  or  how  the  various  questions  may  be  apportioned  between  the  judge  and 
the  jury. 

The  law  of  evidence,  in  the  main,  is  made  up  of  excluding  rules  which  pre- 
vent the  use  of  much  relevant  material,  largely  because  it  is  thought  to  be 
inadvisable  to  trust  a  jury  with  it. 

This  analysis  would  seem  to  require  that  a  course  on  evidence  should  be 
confined  to  a  study  of  these  excluding  rules,  leaving  the  various  introduc- 
tory matters  to  some  course  on  procedure.  In  the  opinion  of  the  editor, 
however,  such  a  restriction  would  not  be  desirable  because  of  the  ditUculty 
of  understanding  this  body  of  excluding  rules  out  of  their  natural  setting, 
and  without  considering  the  machinery  which  gave  rise  to  them. 
HiNT.Ev. — 1 


J 


2  THE   COURT  AND  THE  JURY  (Ch.    1 

tate :  for  it  was  agreed,  it  was  a  good  Proviso  to  make  her  estate  to 
determine;  although  there  be  no  words  "to  cease,"  or  "that  it  shall 
be  void" ;  but  being  in  a  will,  it  is  implied  in  the  words,  "that  then 
she  shall  have  a  rent";  which  cannot  be  if  her  estate  be  not  deter- 
mined. 

The  Justices  said,  she  is  but  tenant  at  sufferance;  for  if  the  de- 
vise had  been  express,  that  if  she  doth  such  an  act  her  estate  shall 
cease;  and  after  such  a  act  done,  though  she  continue  in  possession, 
and  dieth,  this  is  no  freehold  in  her;  and  here  is  as  much  in  sub- 
stance. And  Wray  said,  it  was  held  at  an  assembly  of  all  the  Jus- 
tices, that  if  tenant  pur  auter  vie  continue  in  possession  after  the 
death  of  cestui  a  que  vie,  he  is  but  tenant  at  sufferance,  and  his  discent 
shall  not  take  away  an  entry ;  which  Gawdy  agreed,  and  that  18  Edw. 
4,  pi.  25,  is  not  law. 

But  there  was  a  default  in  their  verdict ;  for  it  was  found  that  she 
totaliter  departed  from  London,  and  went  to  Milton  in  Suffolk ;  but 
it  was  not  found  that  she  dwelt  out  of  London ;  and  this  is  part  of 
the  condition :  and  this  not  being  found,  it  is  not  found  that  the  con- 
dition is  broken ;  and  then,  notwithstanding  any  matter  found,  the 
entry  of  the  defendant  is  lawful.  And  it  was  moved,  that  as  to  it  a 
venire  facias  de  novo  should  issue  to  examine  this  point  better,  if  she 
dwelt  in  the  country;  for  it  is  said  in  this  point,  the  verdict  was  not 
well  examined.  But  the  Court  held,  that  the  verdict  is  full,  upon  which 
a  judgment  might  be  given,  and  then  no  venire  facias  de  novo  is  to  be 
awarded ;  for  it  is  found  for  the  defendant,  when  it  is  not  ^  found 
that  the  condition  is  broken;  and  for  this  cause  only  it  was  adjudged 
for  the  defendant. 

But  then  it  was  objected,  that  the  life  of  Agnes  was  not  found,  and 
then  the  defendant  cannot  enter.  Fenner  said,  it  shall  be  intended  she 
is  living;  for  the  jury  did  not  doubt  of  it;  for  they  find,  that  if  his 
entry  upon  the  matter  found  is  lawful,  that  he  is  not  guilty :  so  they 
doubted  nothing  on  that  point;  and  so  it  was  adjudged  in  28  Eliz.  in 
this  court.    And  judgment  was,  quod  querens  nihil  capiat  per  billam. 

.-  ^  Willes,  L.  C.  J.,  in  Mayor  y.  Lambert,  Willes,  111  (1738):  "It  was  said 
indeed  in  the  present  case  tliat  it  is  not  found  that  there  was  no  considera- 
tion, but  only  that  there  was  no  consideration  proved:  but  'de  non  appar- 
entibus  et  de  non  existentibus  eadem  est  ratio.'  Besides  this  negative  need 
not  have  been  found  at  all;  for  though  of  late  years  such  negatives  have 
been  sometimes  found,  no  such  negatives  were  ever  found  in  old  special 
verdicts,  except  where  it  was  necessary  to  shew  that  the  person  or  thing 
did  not  come  within  a  particular  exception;  as  in  the  present  case  it  was 
pror»er  to  find  that  the  defendant  was  not  a  burgess  or  freeman;  otherwise 
what  was  not  found  was  always  talcen  not  to  be  proved."  See,  also,  Mar- 
ten V.  Jenkin,  2  Strange,  1145  (1741),  where  the  special  verdict  failed  to 
find  a  fact  necessary  to  the  defense;  Hook  v.  Pagee,  2  Munf.  (Va.)  379 
(1811). 


Sec.  1)  THE   BURDBxX   OF   PROOIT  3 

GRAVES  V.  SHORT. 
(Court  of  Queen's  Bench,  159S.     Cro.  Eliz.  61G.)« 

Error  of  a  judgment  in  the  Common  Pleas  in  a  formedon.  The 
errors  assigned  were,  first,  in  fait.  That  the  parties  being  at  issue, 
whether  a  feoffment  were  made,  &c.  and  the  jurors  at  the  Nisi  Prius 
being  gone  together  to  confer,  &c.  William  Malevory,  one  of  the  ju- 
rors, showed  to  the  residue  of  the  jurors  an  escrow  in  writing  pro 
petentibus  quod  non  fuit  dat,  in  evidence  per  partes  praedictas,  per 
quod  they  found  the  verdict  for  the  demandant.  Upon  this  error  as- 
signed it  was  demurred  in  law.  And,  after  argument  at  the  Bar,  the 
Court  resolved,  that  it  was  not  any  error,  nor  could  be  alledged  for 
error;  for  it  doth  not  appear,  that  it  was  evidence  given  to  the  juror  by 
any  of  the  parties,  or  by  any  other  in  behalf  of  the  plaintiff;  but  it 
shall  be  intended,  that  he  showed  it  of  himself ;  and  that  it  was  a  piece 
of  evidence  which  he  had  about  him  before,  and  showed  it  to  inform 
himself  and  his  fellows.  And  as  he  might  declare  it  as  a  witness,  that 
he  knew  it  to  be  true,  so  he  might  show  any  thing  which  he  knew :  * 
and  therefore  it  is  not  like  to  11  Hen.  4,  pi.  33,  and  35  Hen,  6,  title 
"Examination."     *     ♦     * 

Judgment  affirmed.  M 

WATTS   V.   BRAINS. 
(Court  of  Queen's  Bench,  IGOO.     Cro.  Eliz.  778.) 

The  plaintiff  brought  an  appeal  of  murder  for  the  death  of  her 
husband ;  to  which  the  defendant  pleaded  not  guilty.  Upon  evidence 
at  the  Bar  it  appeared,  that  two  days  before  her  husband's  death,  he 
and  the  defendant  fighting,  upon  a  quarrel  then  betwixt  them,  the  de- 
fendant was  hurt  in  that  fray ;  and  the  third  day  after,  the  plaintiff's 
husband  passing  by  the  defendant's  shop,  the  defendant  pursued  him 
suddenly,  and  the  husband's  back  being  towards  him,  so  as  he  per- 
ceived him  not,  the  defendant  struck  him  upon  the  calf  of  his  leg, 
whereof  he  instantly  died.  The  defendant  to  excuse  himself  affirmed, 
that  he  who  was  slain,  when  he  came  by  his  shop,  smiled  upon  him, 
and  wryed  his  mouth  at  him,  and  therefore,  for  this  mocking  of  him, 
he  pursued- him.    It  was  much  inforced  by  the  defendant's  counsel,  tliat 

3  Part  of  the  case  is  omitted. 

4  Holt,  C.  J.,  in  Wright  v.  Crump,  7  Mod.  1  (1702):  "If  a  jury  give  a  ver- 
dict upon  their  own  knowledge,  they  ought  to  tell  the  court  so;  but  the  fair 
way  has  been,  ^or  such  of  the  jury  as  had  knowledge  of  the  matter,  before 
they  are  sworn,  to  tell  the  thing  to  the  court,  and  be  sworn  as  a  witness." 
For  the  practice  of  swearing  a  juror  as  a  wiincss,  see  Dunbar  y.  Parks,  post, 
207.  That  the  Jury  could  not  receive  information  privately  from  mere  wit- 
nesses, see  Metcalfe  v.  Deane,  Cro.  Eliz.  ISO  (1590),  post,  205,  where  a  new 
trial  was  awarded  because  of  such  misconduct 


4  THE   COURT  AND  THE  JURY  (Cll.   1 

it  was  a  new  cause  of  quarrel ;  and  so  the  stroke  is  not  upon  any  preced- 
ent malice,  and  therefore  it  is  not  murder.  But  all  the  Court  sever- 
ally delivered  their  opinions,  that  if  one  make  a  wry  or  distorted 
mouth,  or  the  like  countenance  upon  another,  and  the  other  immediate- 
ly pursues  and  kills  him,  it  is  murder:  for  it  shall  be  presumed  to 
be  malice  precedent ;  and  that  such  a  slight  provocation  was  not  suffi- 
cient ground  or  pretence  for  a  quarrel ;  and  so  delivered  the  law 
to  the  jury,  that  it  was  murder,  although  what  the  defendant  pretend- 
ed had  been  true. 

Whereupon  the  jury  going  from  the  Bar,  notwithstanding  the  evi- 
dence was  pregnant  against  the  defendant,  eight  of  them  agreed  to 
find  him  not  guilty ;  but  the  other  four  withstood  them,  and  would  not 
find  it  but  to  be  murder.  On  the  next  day  morning,  tv^^o  of  the  four 
agreed  with  the  eight,  to  find  him  not  guilty ;  and  afterwards  the  oth- 
er two  consented  in  this  manner,  that  they  should  bring  in  and  offer 
their  verdict  not  guilty;  and  if  the  Court  disliked  thereof,  that  then 
they  all  should  change  the  verdict,  and  find  him  guilty.  Upon  this 
agreement  they  came  to  the  Bar,  and  the  foreman  pronounced  the 
verdict,  that  the  defendant  was  not  guilty.  The  Court  much  mislik- 
ing  thereof,  being  contrary  to  their  direction,  examined  every  one 
of  them  by  the  poll,  whether  that  was  his  verdict?  and  ten  of  the 
first  part  of  the  pannel  severally  affirmed  their  verdict,  that  the  de- 
fendant was  not  guilty;  but  the  two  last  affirmed  how  they  agreed, 
and  discovered  the  whole  manner  of  their  agreement :  whereupon  they 
were  sent  back  again,  and  returned,  and  found  the  defendant  guilty. 

For  this  practice,  Harris,  the  foreman,  was  afterwards  fined  100 
marks ;  and  the  other  seven,  who  agreed  with  him  at  the  first,  every 
of  them  was  fined  £40.  The  other  two,  who  agreed  with  the  eight, 
although  they  affirmed  that  it  was  because  they  could  not  endure  or 
hold  out  any  longer,  yet  because  they  did  not  discover  the  practice, 
being  examined  by  poll,  but  affirmed  the  verdict,  they  were  fined  each 
of  them  at  i20.  and  all  of  tliem  imprisoned.  The  other  two  were  dis- 
missed, yet  blamed  for  such  a  manner  of  consenting  in  abuse  of  the 
Court.     And  afterwards  the  defendant  was  adjudged  to  be  hanged. 


SLADE'S  CASE. 

(Court  of  King's  Bench,  1648.     Style,  138.) 

The  Court  was  moved  for  judgment  formerly  stayed  upon  a  cer- 
tificate made  by  Baron  Atkins,  that  the  verdict  passed  against  his 
opinion.  Bacon,  Justice,  said,  judgments  have  been  arrested  in  the 
Common  Pleas,  upon  such  certificates.  Hales,  of  counsel  with  the  de- 
fendant, prayed,  that  this  judgment  might  be  arrested,  and  that  there 
might  be  a  new  trial,  for  that  it  hath  been  done  heretofore  in  like 
cases.     But  Roll,  Justice,  held,  it  ought  not  to  be  stayed,  though  it 


Sec.  1)  THE   BURDEN   OP  PROOF  5 

have  been  done  in  the  Common  Pleas,  for  it  was  too  arbitrary  for  them 
to  do  it,  and  you  may  have  your  attaint  '^  against  the  jury,  and  there  is 
no  other  remedy  in  law  for  you ;   but  it  were  good  to  advise  the  party 

6  "A  Writ  of  Attaint:  which  lioth  to  inquire  whether  a  Jury  of  twelve 
men  gave  a  false  verdict;  that  so  the  judgment  following  thereupon  may  be' 
reversed:  and  this  must  be  brought  in  the  lifetime  of  him  for  whom  the 
rerdict  was  given,  and  of  two  at  least  of  the  jurors  who  gave  it.  This  lay, 
at  the  common  law,  only  upon  writs  of  assise;  and  seems  to  have  been  co- 
eval with  that  institution  by  king  Henry  II  at  the  instance  of  his  chief  justice 
Glanvil:  being  probably  meant  as  a  check  upon  the  vast  power  then  re- 
posed in  the  recognitors  of  assise,  of  finding  a  verdict  according  to  their  own 
personal  knowledge,  without  the  examination  of  witnesses.  And  even  here 
it  extended  no  farther  than  to  such  instances,  where  the  issue  was  joined 
upon  the  very  point  of  assise  (the  heirship,  disseisin,  etc.)  and  not  on  any 
collateral  matter;  as  villenage,  bastardy,  or  any  other  dLsputed  fact.  In 
these  cases  the  assise  was  said  to  be  turned  into  an  inquest  or  jury,  (as- 
sisa  vertitur  in  juratem)  or  that  the  assise  should  be  taken  in  modum  jura- 
ts et  non  in  modum  assisae;  that  is,  that  the  issue  should  be  tried  by  a  com- 
mon jury  or  inquest,  and  not  by  recognitors  of  assise:  and  then  I  apprehend 
that  no  attaint  lay  against  the  inquest  or  jury  that  determined  such  col- 
lateral issue.  Neither  do  I  find  any  mention  made  by  our  ancient  writers, 
of  such  a  process  obtaining  after  the  trial  by  inquest  or  jury,  in  the  old 
Norman  or  feodal  actions  prosecuted  by  writ  of  entry.  Nor  indeed  did  any 
attaint  lie  in  trespass,  debt,  or  other  action  personal,  by  the  old  common 
law:  because  those  were  always  determined  by  common  inquests  or  juries. 
At  length  the  statute  of  Westm.  I,  3  Edw.  I,  c.  38,  allowed  an  attaint  to  be 
sued  upon  inquests,  as  well  as  assises,  which  were  taken  upon  any  plea  of 
land  or  of  freehold.  But  this  was  at  the  king's  discretion,  and  is  so  under- 
stood by  the  author  of  Fleta,  a  writer  contemporai-y  with  the  statute ;  though 
Sir  Edward  Coke  seems  to  hold  a  different  opinion.  Other  subsequent  stat- 
utes introduced  the  same  remedy  in  all  pleas  of  trespass,  and  the  statute  34 
Edw.  Ill,  c.  7,  extended  it  to  all  pleas  whatsoever,  personal  as  well  as  real: 
except  only  the  writ  of  right,  in  such  cases  where  the  mise  or  issue  is  join- 
ed on  the  mere  right,  and  not  on  any  collateral  question.  For,  though  the 
attaint  seems  to  have  been  generally  allowed  in  the  reign  of  Henry  the  Sec- 
ond, at  the  first  introduction  of  the  grand  assise  (which  at  that  time  might 
consist  of  only  twelve  recognitors),  yet  subsequent  authorities  have  holden, 
that  no  attaint  lies  on  a  false  verdict  given  upon  the  mere  right,  either  at 
common  law  or  by  statute ;  because  that  is  determined  by  the  grand  assise, 
appealed  to  by  the  party  himself,  and  now  consisting  of  sLxteeu  jurors. 

The  jury  who  are  to  try  this  false  verdict  must  be  twenty-four,  and  are 
called  the  grand  jury;  for  the  law  wills  not  that  the  oath  of  one  jury  of 
twelve  men  should  be  attainted  or  set  aside  by  an  equal  number,  nor  by 
less  indeed  than  double  the  former.  *  *  *  And  he  that  brings  the  at- 
taint can  give  no  other  evidence  to  the  grand  jury,  than  what  was  originally 
given  to  the  petit.  For  as  their  verdict  is  now  trying,  and  the  question  is 
whether  or  no  they  did  right  upon  the  evidence  that  appeared  to  them,  the 
law  adjudged  it  the  highest  absurdity  to  produce  any  subsequent  proof  upon 
such  trial,  and  to  condemn  the  prior  jurisdiction  for  not  believing  evidence 
which  they  never  knew.  But  those  against  whom  it  is  brought  are  allowed, 
in  affirmance  of  the  first  verdict,  to  produce  new  matter;  because  the  petit 
jury  luay  have  formed  their  verdict  upon  evidence  of  their  own  knowledge, 
which  never  appeared  in  court.  If  the  grand  jury  found  the  verdict  a  false 
one,  the  judgment  by  the  common  law  was,  that  the  jurors  should  lose  their 
liberara  legem  and  become  forever  infamous ;  should  forfeit  their  goods  and 
the  profits  of  their  lands;  should  themselves  be  imprisoned,  and  their  wives 
and  children  thrown  out  of  doors ;  should  have  their  houses  razed,  their 
trees  extirpated,  and  their  meadows  ploughed;  and  that  the  plaintiflf  should 
be  restored  to  all  that  he  lost  by  reason  of  the  unjust  verdict.  But  as  the 
severity  of  this  punishment  had  it's  usual  effect,  in  preventing  the  law  from 
being  executed,  therefore  by  the  statute  11  Hen.  VII,  c.  24,  revived  by  23 


6  THE   COURT   AND  THE  JURY  (Ch.   1 

to  suffer  a  new  trial  for  better  satisfaction.  And  let  the  defendant 
take  four  days  from  hence  to  speak  in  arrest  of  judgment  if  the 
postea  be  brought  in,  if  not,  then  four  days  from  the  time  it  shall  be 
brought  in. 


FITZ-HARRIS  v.  EOIUN. 

(Court  of  King's  Bench,  1662.     1  Lev.  87.) 

Error  of  a  judgment  in  the  Palace  Court  in  assumpsit,  where  to 
prove  the  consideration,  an  arrest  was  to  be  proved  by  the  plaintiff; 
and  for  that  he  did  not  produce  the  writ,  the  defendant  demurred  on 
the  evidence;  and  thereupon  judgment  was  given  for  the  plaintiff; 
and  now  to  reverse  the  judgment  it  was  said  for  the  plaintiff  in  error, 
that  the  King's  writs  are  matters  of  record,  and  are  not  to  be  proved 
but  by  themselves ;  and  it  was  agreed  by  the  Court  that  the  writ  ought 
ta  have  been  produced  in  evidence,  but  by  the  demurrer  it  is  confessed, 
the  arrest  being  matter  of  fact,  though  it  be  to  be  proved  by  a  matter 
of  record,  and  the  jury  might  of  tlieir  own  knowledge  know  that  there 
was  a  writ,  Dyer  239.  Plowd.  Com.  Scholastica's  case.  And  by  the 
demurrer  on  the  evidence,  all  matters  of  fact  are  confessed  that  the 
jury  could  know  of  their  own  conusance;  and  the  judgment  was  af- 
firmed. 


ANONYMOUS. 

(Court  of  King's  Bench,  1665.     1  Keb.  864.) 

Ex  motione  recordatoris  Wild,  the  Court  on  certificate  of  a  Judge, 
that  verdict  was  given  contrary  to  evidence,  would  not  allow  the'sher- 
iff  should  bring  in  the  book  of  freeholders  to  the  Secondary,  for  the 
ill  example;  but  ordered  the  sheriff  should  retorn  a  good  jury  in  the 
new  trial.    Hyde,  Chief  Justice,  conceived  jurors  ought  to  be  fined  if 

Hen.  VIII,  c.  3,  and  made  perpetual  by  13  Eliz.  c.  25,  an  attaint  is  allowed  to 
be  brought  after  the  death  of  the  party,  and  a  more  moderate  punishment  was 
inflicted  upon  attainted  jurors;  viz.  perpetual  infamy,  and,  if  the  cause 
of  action  were  above  £40.  value,  a  forfeiture  of  £20.  apiece  by  the  jurors ;  or, 
if  under  £40.,  then  £5.  apiece;  to  be  divided  between  the  king  and  the  party 
injured.  So  that  a  man  may  now  bring  an  attaint  either  upon  the  statute  or 
at  common  law,  at  his  election ;  and  in  both  of  them  may  reverse  the  former 
judgment.  But  the  practise  of  settuig  aside  verdicts  upon  motion,  and 
granting  new  trials,  has  so  superseded  the  use  of  both  sorts  of  attaints,  that 
I  have  not  observed  any  instance  of  an  attaint  in  our  books,  much  later  than 
the  sixteenth  century.  By  the  old  Gothic  constitution  indeed,  no  certificate 
of  a  judge  was  allowed  in  matters  of  evidence;  to  countervail  the  oath  of 
the  jury:  but  their  verdict,  however  erroneous,  was  absolutely  final  and 
conclusive.  Yet  there  was  a  proceeding,  from  whence  our  attaint  may  be 
derived.  If,  upon  a  lawful  trial  before  a  superior  tribunal,  they  were  found 
to  have  given  a  false  verdict,  they  w.ere  fined,  and  rendered  infamous  for 
the  future."     3  Blackstone's  Commentaries,  402. 


Sec.  1)  THE  BURDEN   OP    I'ROOP  7 

they  would  go  against  the  hare  and  direction,  take  bit  in  mouth  and 
go  headstrong  against  the  Court ;  and  said,  that  by  the  grace  of  God 
he  would  have  it  tried,  seeing  the  attaint  is  now  fruitless.* 


BUSHELL'S  CASE. 

(Court  of  Common  Pleas,  1G70.     Vaughan,  135.) 

To  a  writ  of  habeas  corpus  the  sheriff  returned  that  the  prisoners 
were  held  under  an  order  fining  and  committing  them  as  members  of 
a  jury  for  acquitting  Penn  and  Mead  on  a  charge  of  unlawful  as- 
sembly, against  the  manifest  evidence  and  contrary  to  the  direction 
of  the  court  in  matter  of  law.'' 

The  Chii^f  Justice  [Vaughan]  :  We  come  now  to  the  next  part  of 
the  retorn,  viz.  That  the  jury  acquitted  those  indicted  against  the  di- 
rection of  the  court  in  matter  of  law,  openly  given  and  declared  to 
them  in  court. 

1.  The  words,  That  the  jury  did  acquit  against  the  direction  of  the 
court  in  matter  of  law,  literally  taken,  and  de  piano,  are  insignificant, 
and  not  intelligible;  for  no  issue  can  be  joined  of  matter  in  law,  no 
jury  can  be  charged  with  the  trial  of  matter  in  law  barely,  no  evidence 
ever  was,  or  can  be  given  to  a  jury  of  what  is  law  or  not;  nor  no  such 
oath  can  be  given  to,  or  taken  by  a  jury,  to  try  matter  in  law,  nor  no 
attaint  can  He  for  such  a  false  oath. 

Therefore  we  must  take  off  this  veil  and  color  of  words,  which 
make  a  show  of  being  something,  and  in  truth  are  nothing. 

If  the  meaning  of  these  words,  finding  against  the  direction  of 
the  court  in  matter  of  law,  be,  that  if  the  judge,  having  heard  the  evi- 
dence given  in  court,  (for  he  knows  no  other)  shall  tell  the  jury  upon 
this  evidence.  The  law  is  for  the  plaintifif,  or  for  the  defendant,  and 
you  are  under  the  pain  of  fine  and  imprisonment  to  find  accordingly, 
then  the  jury  ought  of  duty  so  to  do:  Every  man  sees  that  the  jury  is 
but  a  troublesome  delay,  great  charge,  and  of  no  use  in  determining 
right  and  wrong,  and  therefore  the  trials  by  them  may  be  better  abol- 
ished than  continued;  which  were  a  strange  new-found  conclusion, 
after  a  trial  so  celebrated  for  many  hundreds  of  years. 

For  if  the  judge,  from  the  evidence,  shall  by  his  own  judgment  first 
resolve  upon  any  trial  what  the  fact  is,  and  so  knowing  the  fact,  shall 

6  This  practice  of  granting  a  new  trial  did  not  become  well  established 
until  somewliut  later.  Martyn  v.  Jackson,  'ci  Keb.  398  (1G75):  "Ex  motione 
Sytherfield  for  a  new  trial  on  parol  affirmation  of  Hale,  Chief  Justice,  to 
Rainsford,  Justice,  that  the  trial  was  against  evidence.  Twisden  and  Wild 
refused  to  grant  it,  the  jury  being  judges  of  the  fact,  though  verdict  be 
against  evidence,  it's  not  to  be  set  aside  without  a  new  law;  contra  by 
Rainsford,  2  Bulstr.  222,  224  (1614).  Juries  are  wilful  enough,  and  denying 
new  trial  hero,  wili  but  scud  parties  into  the  chancery,  yrt  new  trial  was 
denied."  For  an  application  to  the  Court  of  Chaucery,  see  Mill  v.  Wharton, 
2  Vern.  37S  (1700). 

7  statement  condensed  and  parts  of  opinion  omitted. 


"8  THE   COURT  AND  THE  JURY  (Ch.   1 

then  resolve  what  the  law  is,  and  order  the  jury  penally  to  find  ac- 
cordingly: what  either  necessary  or  convenient  use  can  be  fancied 
of  juries,  or  to  continue  trials  by  them  at  all:     *     *     * 

But  no  case  can  be  offered,  either  before  attaints  granted  in  general, 
or  after,  that  ever  a  jury  was  punished  by  fine  and  imprisonment  by 
the  judge,  for  not  finding  according  to  their  evidence  and  his  direc- 
tion, until  Popham's  time ;  nor  is  there  clear  proof  that  he  ever  fined 
them  for  that  reason,  separated  from  other  misdemeanor.  If  juries 
might  be  fined  in  such  case  before  attaints  granted,  why  not  since? 
For  no  statute  hath  taken  that  power  from  the  judge.  But  since  at- 
taints granted,  the  judges  resolved  they  cannot  fine  where  the  at- 
taint lies,  therefore  they  could  not  fine  before.  Sure  this  latter  age 
did  not  first  discover  that  the  verdicts  of  juries  were  many  times  not 
according  to  the  judges  opinion  and  liking. 

But  the  reasons  are,  I  conceive,  most  clear,  that  the  judge  could  not, 
nor  can,  fine  and  imprison  the  jury  in  such  cases. 

Without  a  fact  agreed,  it  is  as  impossible  for  a  judge  or  any  other 
to  know  the  law  relating  to  that  fact,  or  direct  concerning  it,  as  to  know 
an  accident  that  hath  no  subject. 

Hence  it  follows,  that  the  judge  can  never  direct  what  the  law  is 
in  any  matter  controverted,  without  first  knowing  the  fact;  and  then 
it  follows,  that  without  his  previous  knowledge  of  the  fact,  the  jury 
cannot  go  against  his  direction  in  law,  for  he  could  not  direct. 

But  the  judge,  qua  judge,  cannot  know  the  fact  possibly,  but  from 
the  evidence  which  the  jury  have,  but  (as  will  appear)  he  can  never 
know  what  evidence  the  jury  have,  and  consequently  he  cannot  know 
the  matter  of  fact,  nor  punish  the  jury  for  going  against  their  evidence, 
when  he  cannot  know  what  their  evidence  is. 

It  is  true,  if  the  jury  were  to  have  no  other  evidence  for  the  fact, 
but  v/hat  is  deposed  in  court,  the  judge  might  know  their  evidence,  and 
the  fact  from  it,  equally  as  they,  and  so  direct  what  the  law  were  in 
the  case,  though  even  then  the  judge  and  jury  might  honestly  differ  in 
the  result  from  the  evidence,  as  well  as  two  judges  may,  which  often 
happens. 

But  the  evidence  which  the  jury  have  of  the  fact  is  much  other  than 
that:   for, 

1.  Being  returned  of  the  vicinage  whence  the  cause  of  action  aris- 
eth,  the  law  supposeth  them  thence  to  have  sufficient  knowledge  to 
try  the  matter  in  issue  (and  so  they  must),  though  no  evidence  were 
given  on  either  side  in  court;  but  to  this  evidence  the  judge  is  a 
stranger. 

2.  They  may  have  evidence  from  their  own  personal  knowledge,  by 
which  they  may  be  assured,  and  sometimes  are,  that  what  is  deposed 
in  court  is  absolutely  false;  but  to  this  the  judge  is  a  stranger,  and 
he  knows  no  more  of  the  fact  than  he  hath  learned  in  court,  and  per- 
haps by  false  depositions,  and  consequently  knows  nothing. 


Sec.  1)  THE  BURDEN   OF  PROOF  9 

3.  The  jury  may  know  the  witnesses  to  be  stigmatised  and  infa- 
mous, which  may  be  unknown  to  the  parties,  and  consequently  to  the 

court. 

4.  In  many  cases  the  jury  are  to  have  view  necessarily,  in  many  by 
consent,  for  their  better  information;  to  this  evidence  likewise  the 
judge  is  a  stranger. 

5.  If  they  do  follow  his  direction,  they  may  be  attainted,  and  the 
judgment  reversed,  for  doing  of  that  which  if  they  had  not  done  they 
should  have  been  fined  and  imprisoned  by  the  judge,  which  is  unrea- 
sonable. 

6.  If  they  do  not  follow  his  direction,  and  be  therefore  fined,  yet 
they  may  be  attainted,  and  so  doubly  punished  by  distinct  judicatures 
for  the  same  offence,  which  the  common  law  admits  not.     *     *     * 

7.  To  what  end  is  the  jury  to  be  returned  out  of  the  vicinage  whence 
the  cause  of  action  ariseth?  To  what  end  must  hundredors,  be  of  the 
jury,  whom  the  law  supposeth  to  have  nearer  knowledge  of  the  fact 
than  those  of  the  vicinage  in  general?  To  what  end  are  they  chal- 
lenged so  scrupulously  to  the  array  and  poll  ?  To  what  end  must  they 
have  such  a  certain  freehold,  and  be  probi  et  legales  homines,  and  not 
of  affinity  with  the  parties  concerned?  To  what  end  must  they  have 
in  many  cases  the  view,  for  their  exacter  information  chiefly?  To 
what  end  must  they  undergo  the  heavy  punishment  of  the  villanous 
judgment,  if  after  all  this  they  implicitly  must  give  a  verdict  by  the 
dictates  and  authority  of  another  man,  under  pain  of  fines  and  im- 
prisonment, when  sworn  to  do  it  according  to  the  best  of  their  own 
knowledge  ? 

A  man  cannot  see  by  another's  eye,  nor  hear  by  another's  ear,  no 
more  can  a  man  conclude  or  infer  the  thing  to  be  resolved  by  another's 
understanding  or  reasoning;  and  though  the  verdict  be  right  the  jury 
give,  yet  they  being  not  assured  it  is  so  from  their  own  understanding, 
are  foresworn,  at  least  in  f oro  conscientias. 

9.  It  is  absurd  a  jury  should  be  fined  by  the  judge  for  going  against 
their  evidence,  when  he  who  fineth  knows  not  what  it  is,  as  where 
a  jury  find  without  evidence  in  court  of  either  side,  so  if  the  jury 
find  upon  their  own  knowledge ;  as  the  course  is  if  the  defendant 
plead  solvit  ad  diem  to  a  bond  proved,  and  offers  no  proof,  the  jury 
is  directed  to  find  for  the  plaintiff,  unless  they  know  payment  was  made 
of  their  own  knowledge,  according  to  the  plea. 

And  it  is  as  absurd  to  fine  a  jury  for  finding  against  their  evidence, 
when  the  judge  knows  but  part  of  it;  for  the  better  and  greater  part 
of  the  evidence  may  be  wholly  unknown  to  him;  and  this  may  hap- 
pen in  most  cases,  and  often  doth,  as  in  Graves  and  Short's  Case. 
*     *     * 

That  decantatum  in  our  books,  "Ad  qua^stionem  facti  non  respond- 
ent judices,  ad  qusestionem  legis  non  respondent  juratores,"  literally 
taken,  is  true:    For  if  it  be  demanded.  What  is  the  fact?  the  judge 


10  THE  COURT  AND  THE  JURY  (Ch.  1 

cannot  answer  It;  if  it  be  asked.  What  is  the  law  in  the  case?  the  jury 
cannot  answer  it. 

Therefore  the  parties  agree  the  fact  by  their  pleading  upon  demurrer, 
and  ask  the  judgment  of  the  court  for  the  law. 

In  special  verdicts  the  jury  inform  the  naked  fact,  and  the  court  de- 
liver the  law ;  and  so  is  it  in  demurrers  upon  evidence,  in  arrest  of 
judgments  upon  challenges;  and  often  upon  the  judges  opinion  of 
the  evidence  given  in  court,  the  plaintiff  becomes  nonsuit,  when  if  the 
matter  had  been  left  to  the  jury,  they  might  well  have  found  for  the 
plaintiff.     *     *     * 

The  prisoners  were  discharged." 


ASH  v.  ASH. 
(Court  of  King's  Bench,  1697.     Comb.  357.) 

Assault,  battery,  and  false  imprisonment.  The  Lady  Ash  pretend- 
ed, that  her  daughter  the  plaintiff  was  troubled  in  mind,  and  brought 
an  apothecary  to  give  her  physick,  and  they  bound  her,  and  would 
have  compelled  her  to  take  physick.  She  was  confined  but  about  two 
or  three  hours,  and  the  jury  gave  her  £2000.  damages. 

Sir  Barth.  Shower  moved  for  a  new  trial  for  the  excessiveness  of 
the  damages. 

Holt,  C.  J.  The  jury  were  very  shy  of  giving  a  reason  of  their 
verdict,  thinking  they  have  an  absolute  despotick  power,  but  I  did 
rectify  that  mistake,  for  the  jury  are  to  try  causes  with  the  assist- 

8  The  jury  may  still  make  use  of  a  good  deal  of  information  not  derived 
from  witnesses  at  the  trial.  In  Com.  v.  Peckhara,  2  Gray  (Mass.)  514  (1S54), 
it  was  announced  that  "no  juror  can  be  supposed  to  be  so  ignorant  as  not  to 
know  what  gin  is."  In  Lillibridge  v.  McCanu,  117  Mich.  84,  75  N.  W.  2SS, 
41  L.  R.  A.  381,  72  Am.  St.  Rep.  553  (1898),  the  court  thoughti  no  evidence 
was  needed  to  enable  a  jury  to  say  that  it  was  dangerous  to  smoke  a  pipe 
in  a  barn  filled  with  hay.  In  Graham  v.  Pennsylvania  Co.,  139  Pa.  149,  21 
Atl.  151,  12  L.  R.  A.  293  (1891),  a  case  involving  what  was  claimed  to  be  a 
dangerous  station  platform,  it  was  said  that  "every  juryman  who  ever  got 
in  or  out  of  a  car,  or  went  up  or  down  a  flight  of  steps,  was  as  capable  of 
judging  the  alleged  danger  as  the  witnesses."  In  Head  v.  Hargrave,  105  U. 
S.  45,  26  L.  -Ka.  1028  (1881),  it  was  said:  "So  far  from  laying  aside  their 
own  general  knowledge  and  ideas,  the  jury  should  have  applied  that  knowl- 
edge and  those  ideas  to  the  matters  of  fact  in  evidence  in  determining  the 
weight  to  be  given  to  the  opinions  expressed ;  and  it  was  only  in  that  way 
that  they  could  arrive  at  a  just  conclusion.  While  they  cannot  act  in  any 
case  upon  particular  facts  material  to  its  disposition  resting  in  their  private 
knowledge,  but  should  be  governed  by  the  evidence  adduced,  they  may,  and 
to  act  intelligently,  they  must,  judge  of  the  weight  and  force  of  that  evi- 
dence by  their  own  general  knowledge  of  the  subject  of  inquiry."  In  Rarr 
v.  Kansas  City,  105  Mo.  550,  16  S.  W.  483  (1891),  it  was  said  to  be  the  pe- 
culiar province  of  the  jury,  in  viewing  the  acts  and  circumstances,  "to  meas- 
ure them  by  a  standard  of  prudence  and  care  derived  from  their  own  ex- 
perience of  what  an  ordinarily  prudent  person  would  have  done.     *     ♦     *  " 


Sec.  1)  THE  BURDEN   OF  PROOF  H 

ance  of  the  Judges,  and  ought  to  give  reasons  when  required,  that, 
if  they  go  upon  any  mistake,  they  may  be  set  right,  and  a  new  trial 
was  granted.' 


RICH  dem.  LORD  CULLEN  et  ah  v.  JOHNSON  et  al. 
(Court  of  King's  Bench,  1740.     2  Strange,  1142.) 

In  ejectment  for  mines  the  plaintiff  proved  himself  lord  of  the 
manor,  and  that  he  was  in  possession  thereof.  But  the  same  witness 
proving,  that  the  defendants  had  had  possession  of  the  mines  above 
twenty  years;  the  court  upon  a  trial  at  bar  held  this  no  evidence  to 
avoid  the  statute  of  limitations,  there  being  no  entry  within  twenty 
years  upon  the  mines,  which  are  a  distinct  possession,  and  may  be 
different  inheritances:  and  therefore  directed^"  the  jury  to  find  for 
the  defendants. 

9  In  Smith  dem.  Dormer  v,  Parkhurst,  Andrews,  315  (1738),  it  was  said 
by  counsel,  supporting  a  rule  nisi  for  a  new  trial:  "As  to  the  objection, 
that  the  jury  might  perhaps  go  on  their  own  knowledge;  this,  if  allowed, 
will  put  an  end  to  the  granting  a  new  trial  in  any  ease  whatsoever,  because 
on  such  a  supposition  no  verdict  can  be  said  to  be  found  against  ei^idence. 
A  jury  are  by  their  oaths  obliged  to  go  according  to  evidence,  i.  e.  the  evi- 
dence given  in  court:  And  if  a  juryman  be  prepossessed,  it  is  a  good  cause 
of  challenge;  which  seems  to  be  proof  that  a  juror  ought  not  to  go  by  his 
own  knowledge.  If  a  juror  does  indeed  know  anything  material  in  the 
cause,  he  ought  to  acquaint  the  court  therewith,  and  be  sworn  as  a  wit- 
ness, that  he  may  be  cross-examined.  [Anonymous],  Far.  2.  1  Salk.  405 
[1703].  And  otherwise  he  may  go  upon  insufficient  and  improper  evidence. 
[Metcalfe  v.  Deane]  Cro.  El.  189  [1590] ;  2  Hale's  Hist.  P.  C.  306,  307.  Sup- 
posing therefore  that  here  any  of  the  jury  went  on  their  own  knowledge, 
without  acquainting  the  court  therewith,  it  is  such  a  misbehavior  as  is  a 
sufficient  foundation  for  granting  a  new  trial.  In  Kitchen  and  Manwaring 
(Pas.  12  G.  I,  in  K.  B.)  a  new  trial  was  prayed,  because,  after  the  withdraw- 
ing of  the  jury,  cue  of  them  offered  evidence  to  the  others;  but  it  was 
refused,  because  Powell,  Just.,  who  tried  the  cause,  reported  that  the  verdict 
was  according  to  evidence;  otherwise  a  new  trial  would  have  been  griinted. 
It  cannot  be  said  with  reason  (as  hath  been  objected)  that  the  granting  a 
new  trial  is  an  imputation  of  perjury  to  the  jury ;  for  they  may  well  be  mis- 
taken as  to  matter  of  fact,  as  the  judges  (who  are  sworn  as  well  as  jurors) 
may  err  in  point  of  law;  and  their  judgments  are  reversible  by  writs  of 
error.  And  as  to  what  has  been  said,  that  the  granting  a  new  trial  may 
occasion  perjury;  this  is  no  solid  objection,  for  that  the  court  ought  to  do 
right  whatever 'may  be  the  consequence." 

10  In  Chichester  v.  Philips,  T.  Raymond,  404  (16S0),  a  bill  of  exceptions 
was  taken  to  the  refusal  of  the  judge  to  direct  that  a  record  was  conclusive, 
but  it  was  held  that  the  party  should  have  demurred  to  the  evidence.  In 
Wilkinson  v.  Kitchin,  1  Ld.  Raymond,  S9  (B.  R.  1G07),  the  following  state- 
ment appears:  "And  afterwards  it  being  proved  in  this  case  that  the  de- 
fendant confessed  that  he  had  disposed  of  this  monoy  in  brit>es,  the  jury  by 
direction  (of  Lord  Holt)  gave  a  verdict  for  the  plaintiff."-  The  same  year 
(1(397)  in  Ash  v.  Ash,  Comb.  357,  Lord  Holt  denied  the  "despotic  power"  of 
a  jury,  and  granted  a  new  trial.  But  it  seems  rather  improbable  tliat  he 
gave  a  peremptory  direction  in  the  Wilkinson  Case  to  find  for  the  plaintiff  on 
oral  proof  of  an  admission  by  the  defendant,  though  at  that  period  peculiar 
notions  prevailed  as  to  the  binding  effect  of  confessions.  Five  years  later, 
in  Wright  v.  Crump,  7  Mod.   1,  he  apparently   concedes  the  power  of  the 


12  THE  COURT  AND  THE  JURY  (Ch.  1 

COCKSEDGE  v.  FANSHAW. 
(Court  of  King's  Bench,  1779.     1  Doug.  118.) 

This  was  an  action  for  money  had  and  received.  The  plaintiff's 
claim  was  based  on  an  alleged  custom.  There  had  been  two  previous 
trials  in  which  the  plaintiff  had  obtained  the  verdict.  On  the  last  trial 
the  defendant  demurred  to  the  plaintiff's  evidence,  and  the  case  was 
heard  in  banc  on  this  demurrer.^'- 

Lord  Mansfield.  The  foundation,  upon  which  the  plaintiff  rests 
his /title,  is  this;  that,  by  immemorial  usage,  to  which  there  has  been 
no  interruption  since  the  time  of  Richard  I.  freemen- factors  have  a 
right  to  take,  to  their  own  use,  that  part  of  the  farthing  duty  which  is 
paid  for  corn  consigned  to  them.  The  defendant  denies  the  fact,  and 
says,  there  is  no  such  usage  or  custom.  I  speak  to  the  fact  now; 
the  legal  objection  I  will  consider  by  and  by.  But  this  is  the  fact  upon 
which  the  parties  are  at  issue;  and  this  is  to  be  tried  by  the  jury. 
Nobody  else  can  try  it;  because  it  is  a  conclusion  of  fact  from  the 
evidence.  Almost  all  the  objections  that  have  been  made,  are  such 
as  were  very  proper  to  be  stated  to  a  jury,  to  induce  them  to  doubt  of 
the  fact  of  such  immemorial  usage ;  to  induce  them  to  conclude  that  it 
began  in  fraud,  or  mistake ;  that  it  could  not  begin  in  the  way  in  which 
it  is  claimed;  that  such  an  usage  could  not  possibly  be  immemorial: 
and,  on  the  second  trial,  all  this  was  strongly  put  to  the  jury.  But, 
what  is  now  brought  before  the  court  on  this  demurrer?  Not  a  ques- 
tion, whether  the  evidence  was"  sufficient  to  satisfy  the  jury  of  the  fact 
of  the  custom,  for,  by  the  demurrer,  the  defendant  admits  every  fact 
which  the  jury  could  have  found  upon  the  evidence.  The  only  ques- 
tion before  the  court,  is,  Whether,  supposing  the  fact  to  be  as  the 
plaintiff  contends,  and  that,  immemorially,  without  any  exception  since 
the  time  of  Richard  I.  the  usage  has  been  for  the  freemen-factors  to 
receive  the  farthings,  such  usage  could,  by  any  possibility,  have  a 
legal  commencement?    *    *    * 

AsHHURST,  Justice.  I  am  of  the  same  opinion.  The  question  now 
before  us,  is  precisely  what  was  decided  on  the  last  motion  for  a  new 
trial.  The  opinion  of  the  court  then  was,  that  the  custom  might  have 
a  legal  commencement.  As  to  the  evidence,  there  is  certainly  enough 
to  have  warranted  the  jury  in  inferring,  that  the  usage  had  existed  as 
far  back  as  the  time  of  memory.  There  was  sufficient  to  be  left  to  a 
j,ury,  and  that  is  all  that  is  requisite. 

jury  to  act  on  private  Isnowledge".  In  1701,  in  College  v.  Levett,  1  Ld.  Ray- 
mond, 472,  the  same  judge  apparently  directed  a  verdict  for  plaintiff  on  the 
ground  that  the  defense  attempted  to  be  proved  under  the  general  issue  was 
not  sufficient  in  law.  In  1725,  in  Syderbottom  v.  Smith,  1  Strange,  649, 
Chief  Justice  Eyre  appears  to  have  directed  a  verdict  for  defendant  on  fail- 
ure of  proof. 

11  Statement  condensed  and  part  of  opinion  of  Mansfield,  J.,  and  all  of 
opinion  of  Willes,  J.,  omitted. 


Sec.  1)  THE  BURDEN   OP  PROOF  13 

BuLLER,  Justice.  Though  Mr.  Davenport  divided  his  argument  into 
five  parts,  it  seems  to  me,  that  there  are  but  two  questions  in  the  cause. 
The  first,  What  is  the  nature  of  a  demurrer  to  evidence?  the  second. 
Whether  the  custom  set  forth  in  this  demurrer-book,  as  stated  by  the 
plaintiff's  counsel,  be,  or  be  not,  good  in  law?  With  respect  to  the 
first,  I  think  Mr.  Davenport  has  gone  a  great  way  too  far.  It  is  the 
province  of  a  jury,  alone,  to  judge  of  the  truth  of  facts,  and  the  cred- 
ibility of  witnesses ;  and  the  party  cannot,  by  a  demurrer  to  evidence, 
or  any  other  mean§,  take  that  province  from  them,  and  draw  such  ques- 
tion ad  aliud  examen.  1  think  the  plain  and  certain  rule  is  this:  The 
demurrer  admits  the  truth  of  all  facts,  which,  upon  the  evidence  stated, 
might  be  found  by  the  jury  "in  favour  of  the  party  offering  the  evi- 
dence. Mr.  Davenport  puts  the  case  of  a  special  verdict,  and  says, 
the  reason  for  a  demurrer  to  evidence  is,  that  the  party  demurring  does 
not  chuse  to  trust  the  jury.  In  a  certain  degree  that  is  true ;  but  the 
reason  of  not  trusting  the  jury  is,  because  they  may,  if  they  please, 
refuse  to  find  a  special  verdict,  and  then  the  facts  never  appear  on  the 
record.  But  whether  the  case  comes  before  the  court  on  a  demurrer 
to  evidence,  or  on  a  special  verdict,  the  law  is  the  same.  Now,  if  this 
cause  had  been  put  into  the  shape  of  a  special  verdict,  what  must  have 
been  stated  on  the  record?  The  jury  could  not  find  all  the  evidence  set 
forth  in  the  demurrer,  but  must  have  pronounced  upon  the  fact, 
whether  or  not  such  an  immemorial  custom  had  existed,  and  then  it 
would  have  been  for  the  court  to  decide,  whether  such  a  custom  was 
good  in  law.  I  agree  with  Mr.  Wood  in  his  definition  of  a  demurrer 
to  evidence;  and  I  am  clear  that  there  was  sufficient  to  be  left  to  a 
jury,  and,  therefore,  on  the  first  question,  there  seems  to  me  to  be  no 
doubt  at  all.  As  to  the  second,  though  I  have  no  doubt  in  my  own 
mind,  yet  I  have  known  so  much  of  the  cause  before,  that  I  purposely 
avoid  giving  any  opinion  upon  it. 

Judgment  for  the  plaintiff.^* 


COMPANY  OF  CARPENTERS,  BRICKMAKERS,  BRICKLAY- 
ERS, TYLERS,  AND  PLAISTERERS,  ETC.,  OF 
SPIREWSBURY  v.  HAYWARD. 

(Court  of  King's  Bench,  1780.     1  Doug.  374.) 

This  was  an  action  on  the  case,  against  a  carpenter,  for  the  breach 
of  a  custom,  which  was  laid  to  be.  That  none  but  members  of  the 
company,  (being  a  corporation  by  prescription,)  or  their  apprentices, 

12 After  the  ruling  in  Gibson  v.  Hunter,  2  H.  Blackstone,  187  (1793),  that 
where  the  evidence  was  not  direct  and  certain  the  party  demurring  must 
expressly  admit  the  facts  which  the  evidence  tended  to  prove,  demurrers 
to  the  evidence  largely  fell  into  disuse,  and  motions  to  direct  the  verdict 
or  to  enter  a  nonsuit  took  their  place.  Finally  it  was  ruled  in  BulKeley  v. 
Butler,  2  B.  &  C.  -IIU  (1824),  that  the  refusal  to  direct  a  verdict  might  be 
reviewed  on  bill  of  exceptions. 


14  THE  COURT  AND  THE  JURY  -    (Ch.  1 

or  journeymen,  should  exercise,  in  Shrewsbury,  or  within  a  certain 
district  round  that  town,  any  of  the  trades  mentioned  in  the  title  of 
the  company.  The  cause  was  tried  at  the  last  assizes  for  Shropshire, 
before  Heath,  Serjeant,  and  a  verdict  found  for  the  plaintiffs.  On 
Thursday,  the  13th  of  April,  Howorth  obtained  a  rule  to  shew  cause, 
why  a  nonsuit  should  not  be  entered,  or  a  new  trial  granted ;  and  the 
case  came  on  to  be  argued,  this  day,  by  Bearcroft,  for  the  plaintiffs, 
and  Howorth,  for  the  defendant. 

1.  The  ground  for  the  nonsuit  was,  that  the  plaintiffs  had  not  proved 
the  existence  of  such  a  company  as  that  described  on  the  record. 
The  evidence  on  this  head  consisted  of  entries  of  admissions,  (some 
as  far  back  as  the  reign  of  Henry  8.)  of  persons,  some  into  the  car- 
penters' company,  some  into  the  bricklayers'  company,  some  into  the 
plaisterers'  company,  etc. ;  of  instances  of  fines  paid  for  having  work- 
ed in  those  trades,  without  being  free  of  the  carpenters'  company,  of 
the  bricklayers'  company,  etc. ;  and  of  the  testimony  of  one  witness 
(who  was  only  twenty- four  years  of  age)  who  said,  he  had  been  em- 
ployed to  call  meetings  of  the  company,  and  that  they  were  called  by 
the  aggregate  name  stated  in  the  declaration.  The  Judge  told  the  jury, 
that  the  companies  might  be  distinct  corporations  for  some  purposes, 
and  yet  form  but  integral  parts  of  one  great  corporate  body;^  that 
such  a  corporate  body  might  legally  exist ;  and  whether,  in  fact,^  it  did 
exist,  was  a  question  for  their  decision.  For  the  defendant  it  was 
objected  at  the  trial,  and  now,  tliat  the  evidence  given  was  only  proof, 
at  most,  of  separate  incorporated  companies,  there  being  no  instances 
of  admissions  into  the  aggregate  body;  no  common  seal;  nor  any 
proof  of  any  corporate  parole  act  done  by  them.  The  evidence  of  the 
witness  was  said  to  be  of  so  recent  a  nature,  that  it  ought  not  to  have 
had  any  weight. 

Lord  Mansfield."  1.  It  was  properly  left  to  the  jury  to  consider, 
whether  the  evidence  produced  was  sufficient  to  shew,  that  there  was 
such  a  company  ;  for  that  was  a  mere  question  of  fact ;  and  they  were 
to  decide  on  its  existence,  and  whether  it  was  ^originally  created  by  a 
charter  from  the  crown,  or  was  only  a  voluntary  society.  There  was 
evidence  of  its  existence  as  a  corporation.  2.  The  witnesses  rejected 
were  clearly  interested  in  the  question.  If  the  company  had  failed 
in  establishing  the  custom,  they  would  have  been  discharged  from  ac- 
tions to  which  they  are  liable  for  the  breach  of  it. 

WiivLiiS,  and  Ashhurst,  Justices,  of  the  same  opinion. 

BuLLSR,  Justice.  1.  Whether  there  be  any  evidence,  is  a  question 
for  the  Judge.  Whether  sufficient  evidence,  is  for  the  jury.  2.  The 
objection  to  the  witness  produced  for  the  defendant  was  certainly  de- 
cisive: nor  is  it  true,  that  he  could  have  had  no  other  sort  of  witness- 
es.    The  employers  might  have  been  witnesses. 

The  rule  discharged. 

13  Statement  condcnsod. 


Sec.  1)  THE   BURDEN   OP   PROOF  15 

REX  V.  ALMON. 

(Court  of  King's  Bench,  1770.     5  Burrows.  2686.) 

The  defendant  having  been  convicted  of  pubHshing  a  Hbel,  (Junius's 
letter,)  in  one  of  the  magazines  called  the  London  Museum ;  which 
was  bought  at  his  shop,  and  even  professed  to  be  "Printed  for  him." 

His  counsel  moved,  on  Tuesday,  19th  June,  1770,  for  a  new  trial; 
upon  the  foot  of  the  evidence  being  insufficient  to  prove  any  criminal 
intention  in  Mr.  Almon,  or  even  the  least  knowledge  of  their  being 
sold  at  his  shop. 

On  Wednesday,  27th  June,  1770,  it  came  on  again;    and 

Serjeant  Glynn  argued  that  the  proof  against  Mr.  Almon  appeared 
therefore  to  be  defective:  there  was  nothing  to  constitute  criminality, 
or  induce  punishment. 

That  after  the  jury  had  been  out  about  two  hours,  one  of  them 
(Mr.  Mackworth)  proposed  a  doubt  "Whether  the  bare  proof  of  the 
sale  in  Mt.  Almon's  shop,  without  any  proof  of  privity,  knowledge, 
consent,  approbation,  or  malus  animus,  in  Mr.  Almon  himself,  was 
sufficient  in  law  to  convict  him  criminally  of  publishing  a  libel." 

Mr.  Mackworth  understood  his  lordship's  answer  to  this  doubt  to 
be  this — "That  this  was  conclusive  evidence."  Otherwise,  Mr.  Mack- 
worth was  convinced  in  his  own  mind,  that  the  defendant  ought  not 
to  be  found  guilty  upon  this  evidence ;  nor  would  he  have  found  him 
guilty.  He  certainly  gave  his  verdict  under  a  mistake.  If  he  had  ap- 
prehended that  the  jury  were  at  liberty  to  exercise  their  own  judgment, 
he  would  have  acquitted  the  defendant.  The  serjeant  prayed  that  Mr, 
Mackworth's  affidavit  might  be  read. 

Lord  Mansfield.    You  know,  it  can't  be  read. 

Mr.  Justice  Aston.  A  juryman's  affidavit  with  regard  to  his  senti- 
ments in  pomt  of  law,  at  the  trial,  ought  not  to  be  admitted;  what- 
ever may  be  the  case  of  his  affidavit  tending  to  rectify  a  mistake  in 
fact.^* 

The  Court  were  of  opinion,  that  none  of  the  matters  urged  on  be- 
half of  the  defendant,  nor  all  of  them  added  together,  were  reasons 
for  granting  a  new  trial ;  whatever  weight  they  might  have  in  extenu- 
ation of  his  offence,  and  in  consequence  lessening  his  punishment. 
For,  they  were  exceedingly  clear  and  unanimous  in  opinion,  that  this 
pamphlet  being  bought  in  the  shop  of  a  common  known  bookseller 
and  publisher,  importing  by  its  title-page  to  be  printed  for  him,  is  a 
sufficient  prima  facie  evidence  of  its  being  published  by  him:  not  in- 
deed conclusive,  because  he  might  have  contradicted  it,  if  the  facts 
would  have  borne  it,  by  contrary  evidence.  But  as  he  did  not  offer  any 
evidence  to  repel  it,  it  must  (if  believed  to  be  true)  stand  good  till  an- 
swered, and  be  considered  as  conclusive,  till  contradicted. 

1*  Statement  condensed,  and  concurring  opinions  of  Aston,  Willos,  and 
Asliliurst,  JJ.,  omitted. 


16  THE  COURT  AND  THE  JURY  (Ch.  1 

Lord  Mansfield  said  and  repeated  that  Mr.  Mackworth  had  un- 
derstood him  perfectly  right :  and  he  was  very  glad  to  find  that  there 
was  no  doubt  of  what  he  had  said.  The  substance  of  it  was,  that  in 
point  of  law,  the  buying  the  pamphlet  in  the  public  open  shop  of  a 
known  professed  bookseller  and  publisher  of  pamphlets,  of  a  person 
acting  in  the  shop,  prima  facie  is  evidence  of  a  publication  by  the  mas- 
ter himself:  but  that  it  is  liable  to  be  contradicted,  where  the  fact 
will  bear  it,  by  contrary  evidence  tending  to  exculpate  the  master,  and 
to  shew  that  he  was  not  privy  nor  assenting  to  it  nor  encouraging  it,. 
That  this  being  prima  facie  evidence  of  a  publication  by  the  master 
himself,  it  stands  good  till  answered  by  him:  and  if  not  answered  at 
all,  it  thereby  becomes  conclusive  so  far  as  to  be  sufficient  to  convict 
him.  That  proof  of  a  public  exposing  to  sale  and  selling,  at  his  shop 
by  his  servant,  was  prima  facie  sufficient;  and  must  stand  till  con- 
tradicted or  explained  or  exculpated  by  some  other  evidence;  and  if 
not  contradicted  explained  or  exculpated,  would  be  in  point  of  evi- 
dence sufficient  or  tantamount  to  conclusive.  Mr.  Mackworth's  doubt 
seemed  to  be  "Whether  the  evidence  was  sufficient  to  convict  the  de- 
fendant, in  case  he  believed  it  to  be  true."  And  in  this  sense  I  an- 
swered it.  Prima  facie,  'tis  good ;  and  remains  so,  till  answered.  If 
it  is  believed,  and  remains  unanswered,  it  becomes  conclusive.  If  it 
be  sufficient  in  point  of  law,  and  the  juryman  believes  it,  he  is  bound 
in  conscience  to  give  his  verdict  according  to  it. 

In  practice,  in  experience,  in  history,  in  the  memory  of  all  persons 
living,  this  is  (I  believe)  the  first  time  that  it  was  ever  doubted  "That 
this  is  good  evidence  against  a  bookseller  or  publisher  of  pamphlets." 
The  constant  practice  is,  to  read  the  libel,  as  soon  as  ever  it  has  been 
proved  to  be  bought  at  the  defendant's  shop.  This  practice  shews 
that  it  is  considered  as  already  proved  upon  the  defendant:  for,  it 
could  not  be  read  against  him,  before  it  had  been  proved ^'^  upon  him. 

If  I  am  mistaken.  Lam  entirely  open  to  alter  my  opinion,  upon  be- 
ing convinced  that  it  is  a  wrong  one :  but,  at  present,  I  take  this 
point  to  be  as  much  established,  as  that  an  eldest  son  is,  (in  general) 
heir  to  his  father.  And  being  evidence  prima  facie,  it  stands  (if  be- 
lieved) till  contrary  proof  is  brought  to  repel  it. 

Rule  discharged. 


DAVIS  v.  HARDY. 
(Court  of  King's  Bench,  1827.     6  Barn.  &  C.  225.) 

Case  for  malicious  prosecution  of  the  plaintiff  on  a  charge  of  em- 
bezzlement. 

At  the  close  of  the  plaintiff's  case,  the  defendant's  counsel  ob- 
jected that  as  Davis  had  received  the  amount  of  the  chaise-hire,  and 
had  not  paid  it  either  to  the  proprietor  or  to  Hardy,  and  had  not 

15  But  see  The  King  v.  Stone,  6  Term  Rep.  51i7  (1790)  post,  108. 


Sec.  1)  THE   BT7RDEN   OF   PROOF  17 

mentioned  to  the  latter  that  he  had  received  it,  there  was  probable 
cause  for  preferring  the  indictment,  and  that  the  plaintiff  must  there- 
fore be  nonsuited.  The  learned  judge  thought  that  there  was  sufficient 
proof  of  want  of  probable  cause ;  and  the  defendant  then  proceeded 
with  his  case,  and  called  as  a  witnes^Slainer,  the  proprietor  of  the 
chaise.  He  stated,  that  in  1823  Hardy  was  his  customer,  and  that 
Davis,  on  the  25th  of  May,  1823,  ordered  the  chaise  in  his  (Hardy's) 
name  to  go  to  Taunton :  he  did  not  see  Davis  for  a  month  or  two 
afterwards,  but  when  he  did  see  him,  he  asked  him  when  he  meant 
to  pay  him  the  money  he  owed  him.  Davis  said  he  owed  him  for  some 
post-chaise  hire  of  his  own;  to  which  Stainer  replied,  "li  you  cannot 
pay  me  for  what  you  owe  me  yourself,  pay  me  for  the  job  to  Taun- 
ton, or  I  will  tell  Mr.  Hardy."  Davis  then  requested  Stainer  not  to 
tell  Mr.  Hardy,  for  it  would  do  him  a  great  deal  of  injury.  Stainer 
saw  Davis  again  in  about  a  month,  when  Davis  promised  to  pay  him ; 
he  stated  further,  that  he  did  not  tell  Hardy  that  the  chaise  had  been 
ordered  in  his  name  until  he  heard  that  Davis  had  been  suspended 
upon  some  charges  that  had  been  presented  against  him,  and  on  cross- 
examination  as  to  the  time  when  he  had  been  paid  by  Hardy,  he 
said  first  it  was  a  week  or  two  after  the  examination,  then  a  very 
short  time  before  the  indictment,  then  a  day  or  two  before  the  in- 
vestigation. Gaselee,  J.,  said,  that  as  it  then  appeared  that  Davis 
had  desired  Stainer  not  to  communicate  to  Hardy  that  the  chaise-hire 
had  not  been  pai'd,  he  was  of  opinion  that  that  circumstance,  coupled 
with  the  fact  of  Davis's  not  having  mentioned  to  Hardy  his  having 
received  it  from  the  assignee,  (though  not  sufficient  to  support  the 
indictment,)  afforded  a  probable  cause  for  preferring  it.  The  coun- 
sel for  the  plaintiff'  then  insisted  that  it  ought  to  be  left  to  the  jury 
to  find  whether  they  believed  Stainer's  evidence.  The  learned  judge 
said  that  there  was  no  contradictory  evidence,  as  to  the  fact  of  Davis 
having  desired  Stainer  to  conceal  from  Hardy  that  the  chaise-hire 
had  not  been  paid;  and  he  refused  to  leave  any  question  to  the  jury, 
and  nonsuited  the  plaintiff.  A  rule  nisi  for  setting  aside  the  nonsuit 
had  been  obtained  in  last  Easter  term,  upon  the  ground  that  it  ought 
to  have  been  left  to  the  jury  to  decide  whether  they  believed  Stainer's 
evidence  or  not.^® 

Abbott,  C.  J.  I  think  that  the  nonsuit  in  this  case  was  proj)er,  and 
that  the  rule  for  setting  it  aside  must  be  discharged.  The  question  for 
our  consideration  is  not,  whether  Davis  was  guilty  of  the  charge  pre- 
fei"red  against  him,  nor  whether  the  indictment  was  preferred  from 
an  improper  motive ;  but  the  question  is,  whether  Hardy  the  pros-| 
ecutor  had  a  reasonable  or  probable  cause  for  preferring  the  chargel 
against  Davis;  and  I  am  of  opinion,  upon  the  evidence  given  at  the 
trial,  that  there  was  probable  cause  for  his  making  that  charge.     The 

16  Statement  condensed. 
HiNT.Ev.— 2 


18  THE  COURT  AND  THE  JURY  (Ch.  1 

facts  are  these:  Davis  hired  the  chaise  in  the  name  of  Hardy,  and 
received  from  the  assignee  of  the  bankrupt  the  amount  of  the  chaise- 
hire;  he  did  not  pay  it  to  the  innkeeper  who  let  the  chaise,  nor  to 
Hardy,  in  whose  name  it  was  hired,  nor  did  he  ever  mention  to  the 
latter  that  he  had  received  the  amount.  Upon  a  charge  being  prefer- 
red against  him,  he  was  examined  before  the  magistrates,  and  one  of 
the  magistrates  was  called  as  a  witness  on  the  part  of  the  plain- 
tiff, and  proved  that  he  admitted  most  of  the  facts  above  stated.  That 
being  the  case  upon  the  part  of  the  plaintiff,  the  learned  Judge  was 
of  opinion  that  there  was  sufficient  prima  facie  evidence^'^  of  the  want 
of  probable  cause  for  preferring  the  indictment,  and  he  refused  to 
nonsuit  the  plaintiff.  Stainer  the  innkeeper,  who  was  the  proprietor  of 
the  chaise,  was  then  called  as  a  witness  on  the  part  of  the  defendant 
He  proved  that  the  chaise-hire  was  not  paid  to  him;  that  he  applied 
to  Davis  twice  for  it;  and  that  upon  his  threatening,  that  unless  he 
was  paid  he  would  tell  Mr.  Hardy,  Davis  requested  him  not  to  tell 
Mr.  Hardy  that  it  was  not  paid,  as  it  would  do  him  a  great  injury. 
Now,  if  that  fact,  which  was  proved  by  Stainer,  had  been  proved  in 
the  course  of  the  plaintift''s  case,  there  can  be  no  doubt  that  it  would 
have  been  evidence  of  a  probable  cause  for  preferring  the  charge :  but 
it  is  said,  that  it  ought  to  have  been  submitted  to  the  jury  as  a  question 
of  fact,  whether  Davis  ever  did  request  Stainer  not  to  inform  Hardy 
that  he,  Davis,  had  received  the  money.  But  where  a  witness  is  un- 
impeached  in  his  general  character,  and  uncontradicted  by  testimony 
on  the  other  side,  and  there  is  no  want  of  probability  in  the  facts  which 
he  relates,  I  think  that  a  judge  is  not  bound  to  leave  his  credit  to  the 
jury,  but  to  consider  the  facts  he  states  as  proved,  and  to  act  upon 
them  accordingly.  I  think,  therefore,  that  the  Judge  was  well  war- 
ranted in  coming  to  the  conclusion  in  this  case,  that  there  was  a  prob- 
able cause  for  preferring  the  indictment,  and  this  rule  must  therefore 
be  discharged. 

Bailey,  J.  I  think  that  in  this  case  there  was  sufficient  evidence  of 
probable  cause,  and  such  evidence,  too,  as  a  jury  ought  to  be  directed 
to  proceed  upon.  If  there  is  nothing  in  the  demeanor  of  a  witness,  or 
in  the  story  he  tells,  to  impeach  his  credit,  and  he  is  not  contradicted 
by  testimony  on  the  other  side,  it  is  not  a  case  for  a  jury  to  deliberate 
upon.  H  the  case  had  been  submitted  to  the  jury,  and  they  had  disbe- 
lieved this  witness,  I  think  that  we  should  have  been  bound  to  send 
the  case  down  to  a  new  trial. 

Rule  discharged.^* 

17  When  the  question  of  probable  cause  is  submitted  to  the  .iury,  the  plain- 
tiff has  the  burden  of  fouviucing  them  of  the  want  of  probable  cause.  Abrath 
V.  North  Eastern  Ry.  Co.,  L.  11.  11  Q.  B.  D.  440  (1SS3).  In  an  action  for 
false  imprisonment,  the  right  to  arrest  on  reasonable  suspicion  is  treated  as 
an  affirmative  defense.     Ocean  Steamship  Co.  v.  Williams,  60  Ga.  251  (1S82). 

18  See  same  result  in  McCormack  v.  Standard  Oil  Co.,  GO  N.  J.  Law,  243, 
37  Atl.  617   (1897) ;    Menominee  River  Sash  &  Door  Co.  v.  Milwaukee  &  N. 


Sec.  1)  THE  BURDEN   OP  PROOF  19 

MITCHELL  V.  JENKINS. 

(Court  of  Kiug's  Bench,  lSo3.     5  Barn.  &  Adol.  .5S8.) 

Case  for  malicious  prosecution  of  a  civil  action  in  which  the  defend- 
ant had  caused  the  plaintiff  to  be  arrested  on  a  demand  for  £45., 
though  he  was  aware  of  a  set-off  to  the  amount  of  il6. 

The  learned  judge  was  of  opinion  that,  as  there  existed  a  set-off, 
which  reduced  Jenkins'  demand,  Mitchell  ought  not  to  have  been  ar- 
rested for  more  than  the  balance ;  and  that  Jenkins  therefore  had  no 
reasonable  or  probable  cause  for  arresting  him  for  the  sum  of  £45. 
As  to  the  question  of  malice,  he  said  there  were  two  kinds  of  malice — 
malice  in  law  and  malice  in  fact;  and  that  in  this  case  there  was 
malice  in  law,  inasmuch  as  the  act  of  causing  Mitchell  to  be  arrested 
for  a  larger  sum  than  was  due  was  wrongful ;  and  that  the  only  ques- 
tion for  the  consideration  of  the  jury  was  the  amount  of  damages. 
The  jury  found  a  verdict  for  the  plaintiff,  damages  i20.  A  rule  nisi 
having  been  obtained  for  a  new  trial,  on  the  ground  that  the  question 
whether  Jenkins  acted  maliciously  ought  to  have  been  left  to  the  jury, 
Follett  now  shewed  cause. ^° 

Denman,  C.  J.  Every  arrest  by  a  creditor  for  more  than  is  due  is, 
in  some  sense,  a  wrongful  act.  By  statute,  if  it  be  made  without  rea- 
sonable or  probable  cause,  though  with  an  entire  absence  of  malice, 
the  party  arresting  may  be  deprived  of  his  costs,  and  at  common  law, 
if  the  party  arrested  has  suffered  damage  to  a  greater  extent  than  those 
costs,  he  may,  if  the  arrest  was  also  made  maliciously,  bring  his  action 
on  tlie  case.  In  that  action,  however,  it  is  still  incumbent  on  the  plain- 
tiff to  allege  and  to  prove  mialice  as  an  independent  fact;  though  it 
may  in  some  instances  be  fairly  inferred  by  the  jury  from  the  arrest 
itself,  and  the  circumstances  under  which  it  is  made,  without  any 
other  proof.  They,  however,  are  to  decide,  as  a  matter  of  fact,  whether 
there  be  malice  or  not.  I  have  always  understood  the  question  of  rea- 
sonable or  probable  cause  on  the  facts  found  to  be  a  question  for  the 
opinion  of  the  Court,  and  malice  to  be  altogether  a  question  for  the 
jury.  Here,  the  question  of  malice  having  been  wholly  withdrawn 
from  the  consideration  of  the  jury,  there  ought  to  be  a  new  trial. 

Parke,  J.  I  am  also  of  opinion  that  there  ought  to  be  a  new  trial, 
on  the  ground  that  the  learned  Judge  withdrew'  altogether  from  the 
consideration  of  the  jury  the  question  of  malice.  I  have  always  un- 
derstood, since  the  case  of  Johnstone  v.  Sutton,  1  T.  R.  510,  which 

Ry.,  91  Wis.  447,  65  N.  W.  176  (1895) ;  Woodstock  v.  Canton,  91  Me.  02,  39 
Atl.  281  (1897).  In  some  cases  a  verdict  cannot  be  directed  ou  uncontradicted 
testimony,  because  there  may  be  a  question  of  credibility,  wliere  tlie  witness 
is  interested  or  biased.  Koehler  v.  Adler,  78  N.  Y.  287  (1879).  In  a  few  Juris- 
dictions it  appears  to  be  held  that  there  is  a  question  of  credibility  in  all 
cases  of  oral  testimony.  Giles  v.  Giles,  204  Mass.  383,  90  N.  E.  595  (1910). 
i»  Statement  condensed  and  concurring  opinion  of  Taunton,  J.,  omitted. 


20  THE  COURT  AND  THE  JURY  (Ch.  1 

was  decided  long  before  I  was  in  the  profession,  that  no  point  of  law 
was  more  clearly  settled  than  that  in  every  action  for  a  malicious  pros- 
ecution or  arrest,  the  plaintiff  must  prove  what  is  averred  in  the  dec- 
laration, viz.,  that  the  prosecution  or  arrest  was  malicious  and  without 
reasonable  or  probable  cause :  if  there  be  reasonable  or  probable  cause, 
no  malice,  however  distinctly  proved,  will  make  the  defendant  liable ; 
but  when  there  is  no  reasonable  or  probable  cause,  it  is  for  the  jury  to 
infer  malice  from  the  facts  proved.  That  is  a  question  in  all  cases  for 
their  consideration,  and  it  having  in  this  instance  been  withdrawn  from 
them,  it  is  impossible  to  say  whether  they  might  or  might  not  have 
come  to  the  conclusion  that  the  arrest  was  malicious.  It  was  for  them 
to  decide  it,  and  not  for  the  Judge.  I  can  conceive  a  case,  where  there 
are  mutual  accounts  between  parties,  and  where  an  arrest  for  the 
whole  sum  claimed  by  the  plaintiff  would  not  be  malicious ;  for  exam- 
ple, the  plaintiff  might  know  that  the  set-off  was  open  to  dispute,  and 
that  there  was  reasonable  ground  for  disputing  it.  In  that  case,  though 
it  might  afterwards  appear  that  the  set-off  did  exist,  the  arrest  would 
not  be  malicious.  The  term  "malice"  in  this  form  of  action  is  not  to 
be  considered  in  the  sense  of  spite  or  hatred  against  an  individual,  but 
of  malus  animus,  and  as  denoting  that  the  party  is  actuated  by  improper 
and  indirect  motives.  That  would  not  be  the  case  where,  there  being 
an  unsettled  account,  with  itfems  on  both  sides,  one  of  the  parties, 
believing  bona  fide  that  a  certain  sum  was  due  to  him,  arrested  his 
debtor  for  that  sum,  though  it  afterwards  appeared  that  a  less  sum 
was  due ;  nor  where  a  party  made  such  an  arrest,  acting  bona  fide  un- 
der a  wrong  notion  of  the  law  and  pursuant  to  legal  advice.  The 
question  of  malice  having  in  this  case  been  wholly  withdrawn  from 
the  jury,  I  think  the  rule  for  a  new  trial  must  be  made  absolute. 

Patte:son,  J.  The  whole  argument  for  the  defendant  may  be 
shortly  summed  up  thus :  The  question  of  malice  ought  to  have  been 
submitted  to  the  jury,  who  might  have  inferred  it  from  the  want  of 
probable  cause ;  but  they  were  not  bound  of  necessity  so  to  do.  Here 
it  was  not  left  to  the  jury  to  infer  malice:  if  the  jury  are  to  be  told 
that  where  a  want  of  probable  cause  is  proved,  malice  must  neces- 
sarily be  inferred,  it  will,  in  future,  be  only  necessary  in  every  case 
to  prove  want  of  probable  cause ;  whereas,  it  is  essential  for  a  plain- 
tiff' to  prove  facts  from  which  the  Judge  may  decide  that  there  is 
want  of  probable  cause,  and  the  jury  that  tliere  is  malice. 

Rule  absolute. 


TOOMEY  v.  LONDON,  B.  &  S.  C.  RY.  CO. 

(Court  of  Common  Pleas,  1857.     3  C.  B.  [N.  S.]  146.) 

This  was  an  action  on  the  gase  for  damages  on  account  of  personal 
injuries  alleged  to  have  been  caused  by  the  negligence  of  tjie  defendant 
in  respect  to  the  condition  of  its  station. 


Sec.  1)  THE   BURDEN   OP  PROOF  21 

The  cause  was  tried  before 'Cresswell,  J.,  at  the  first  sitting  at  West- 
minster in  this  term.  The  facts  were  as  follows  :  The  plaintiff,  a  poor 
and  illiterate  person  who  carried  on  the  employment  of  a  hawker,  went 
to  the  Forest  Hill  station  of  the  London,  Brighton,  and  South  Coast 
Railway,  for  the  purpose  of  proceeding  to  London  by  the  10:30  p.  m. 
train.  Whilst  waiting  there,  he  inquired- of  a  person  on  the  platform, 
unconnected  with  the  railway,  where  he  should  find  a  urinary :  this 
person  told  him  to  go  to  the  right :  he  did  so,  and  found  two  doors,  up- 
on one  of  which  was  painted  the  words  "For  gentlemen,"  and  upon  the 
other  the  words  "Lamp-room ;"  there  being  a  light  over  the  former, 
but  none  over  the  latter.  The  plaintiff,  being  in  a  hurry,  and  unable  to 
read,  opened  the  wrong  door,  stepped  forward,  and  fell  down  some 
steps,  breaking  two  of  his  ribs,  and  otherwise  seriously  hurting  himself. 
There  was  no  evidence  as  to  the  description  of  the  steps  down  which 
the  plaintiff  fell,  nor  as  to  the  state  in  which  the  door  of  the  lamp-room 
was  ordinarily  kept :  but  the  plaintiff's  son  stated,  that,  when  he  went 
some  time  after  the  accident  to  look  at  the  place,  he  found  the  door 
locked. 

On  the  part  of  the  defendants,  it  was  submitted  that  there  was  no      i 
evidence  to  go  to  the  jury  of  negligence,  and  that  the  accident  was 
attributable  entirely  to  the  plaintiff's  own  want  of  caution  in  going 
hastily  and  in  the  dark  through  a  strange  door. 

The  learned  judge  was  of  this  opinion,  and  the  plaintiff  was  non- 
suited, with  leave  to  move  to  enter  a  verdict  for  i35  (agreed  damages), 
if  the  court  should  be  of  opinion  that  there  was  evidence  which  ought 
to  have  been  submitted  to  the  jury.^" 

Williams,  J.  I  am  of  opinion  that  there  should  be  no  rule  in  this 
case.  I  think  there  was  no  evidence  of  negligence  on  the  part  of  the 
company  or  their  servants  which  ought  to  have  been  submitted  to  the 
jury.  It  is  not  enough  to  say  that  there  was  some  evidence ;  for, 
every  person  who  has  had  any  experience  in  courts  of  justice  knows 
very  well  that  a  case  of  this  sort  against  a  railway  company  could 
only  be  submitted  to  a  jury  with  one  result.  A  scintilla  of  evidence,  or 
a  mere  surmise  that  there  may  have  been  negligence  on  the  part  of  the 
defendants,  clearly  would  not  justify  the  judge  in  leaving  the  case  to 
the  jury ;  there  must  be  evidence  upon  which  they  might  reasonably  and 
properly  conclude  that  there  was  negligence.  All  that  appeared,  was 
that  the  plaintiff  inquired  of  a  stranger  the  way  to  the  urinal,  and, 
being  told  to  go  in  a  particular  direction  where  there  were  two  doors, 
unfortunately  opened  the  wrong  one,  and  through  his  own  careless- 
ness fell  down  some  steps.  If  there  had  been  any  evidence  to  show 
:hat  these  steps  were  more  than  ordinarily  dangerous,  that  possibly 
might  have  led  to  a  different  conclusion.  But  all  that  appears,  is,  that 
the  door  in  question  led  down  some  steps  into  a  room  which  was  used 
for  the  purposes  of  the  company,  and  not  for  the  convenience  of  the 

2  0  statement  condensed. 


22  THE  COURT  AND  THE  JURY  (Ch.  1 

public.  I  cannot  say  that  there  was  suth  evidence  of  negligence  in  the 
defendants  as  the  learned  judge  was  bound  to  leave  to  the  jury. 

WiLLES,  J.  I  am  entirely  of  the  same  opinion.  In  order  to  estab- 
lish a  case  of  negligence  against  the  defendants,  it  was  incumbent  on 
the  plaintiff  to  prove  some  fact  which  was  more  consistent  with  neg- 
ligence than  with  the  absence  of  it.  There  was  nothing  of  the  sort 
proved  here.  There  was  nothing  to  show  that  the  door  and  the  steps 
beyond  were  more  than  ordinarily  dangerous  ;  and  it  was  necessary  and 
proper  that  something  of  the  sort  should  be  there  for  the  convenient 
use  of  the  station  by  the  company.  It  would  be  difficult  so  to  arrange 
every  part  of  a  station  as  to  render  it  impossible  for  careless  persons 
to  meet  with  injury.  I  think  the  plaintiff  failed  to  make  out  that  he 
sustained  the  injury  complained  of  through  any  negligence  of  the 
company  or  their  servants. 

Rule  refused.^^ 


WAKELIN  V.  LONDON  &  S.  W.  RY.  CO. 

(House  of  Lords,  1886.     L.  R.  12  App.  Cas.  41.) 

Appeal  from  a  decision  of  the  Court  of  Appeal. 

The  action  was  brought  by  the  administratrix  of  Henry  Wakelin 
jn  behalf  of  herself  and  her  children  under  Lord  Campbell's  Act, 
9  &  10  Vict.  c.  93. 

The  statement  of  claim  alleged  that  the  defendant's  line  between 
Chiswick  vStation  and  Chiswick  Junction  crossed  a  public  footway,  and 
that  on  the  1st  of  May,  1882,  the  defendants  so  negligently  and  un- 
skillfully  drove  a  train  on  the  line  across  the  footpath  and  so  neg- 
lected to  take  precautions  in  respect  of  the  train  and  the  crossing  that 
the  train  struck  and  killed  one  Henry  Wakelin  the  plaintiff's  husband 
whilst  lawfully  on  the  footpath. 

The  statement  of  defence  admitted  that  on  that  day  the  plaintiff's 
husband  whilst  on  or  near  the  footpath  was  struck  by  a  train  of  the 
defendants,  and  so  injured  that  he  died,  but  denied  the  alleged  negli- 
gence; did  not  admit  that  the  deceased  was  lawfully  crossing  the  line 
at  the  time  in  question ;   and  alleged  that  his  death  was  caused  by  his 

21  A  few  years  before,  the  same  court  in  Jewell  v.  Parr,  13  C.  B.  909  (1853), 
stated  the  rule  as  follows:  "Applying  the  maxim  'de  minimis  non  curat  lex,' 
when  we  say  that  there  is  no  evidence  to  go  to  the  jury,  we  do  not  mean 
that  there  is  literally  none,  but  that  there  is  none  which  ought  reasonably 
to  satisfy  a  jury  that  the  fact  sought  to  be  proved  is  established.  There  may 
be  evidence  upon  which  a  jury  may  properly  proceed,  although  the  contrary 
is  possible;  for  instance,  when  the  question  is  whether  a  certain  document 
is  in  tlio  handwriting  of  A.  B.,  and  a  witness  conversant  with  the  handwrit- 
ing of  that  person  states  that  he  believes  it  was  written  by  him,  it  is  con- 
sistent with  that  evidence  that  the  document  may  not  be  in  the  handwriting 
of  A.  B.,  and  yet  the  jury  would  he  well  warranted  in  coming  to  the  con- 
clusion that  it  was,  even  though  there  might  be  witnesses  on  the  other  side 
to  pledge  their  belief  that  it  was  not." 


Sec.  1)  THE  BURDEN   OF  PROOF  23 

own  negligence  and  that  he  might  by  the  exercise  of  reasonable  cau- 
tion have  seen  the  train  approaching  and  avoided  the  accident. 

At  the  trial  before  Manisty,  J.,  and  a  special  jury  in  Middlesex  in 
December,  1883,  the  following  evidence  was  given  on  behalf  of  the 
plaintiff.  It  appeared  from  the  defendants'  answers  to  interrogatories 
that  the  crossing  was  a  level  crossing  open  to  all  foot  passengers; 
that  the  approaches  to  the  crossing  on  each  side  of  the  line  were  guard- 
ed by  hand  gates ;  that  there  was  a  slight  curve  at  the  crossing ;  that 
assuming  the  deceased  to  have  been  crossing  the  line  from  the  down 
side  and  standing  inside  the  hand  gates,  but  not  on  the  line,  he  could 
nave  seen  a  train  approaching  on  the  down  side  at  a  distance  of 
nearly  if  not  quite  half  a  mile,  but  that  when  standing  in  the  centre 
of  the  line  he  could  have  seen  a  train  approaching  on  the  down  side 
at  a  distance  of  more  than  one  mile;  that  the  body  of  the  deceased 
was  found  on  the  down  side  of  the  line  and  that  he  was  run  upon  and 
killed  by  a  down  train ;  that  the  engine  carried  the  usual  and  proper 
head  lights  which  were  visible  at  the  distances  above  mentioned ;  that 
the  company  did  not  give  any  special  signal  or  take  any  extraordinary 
precautions  while  their  trains  were  travelling  over  the  crossing;  that 
a  watchman  in  the  company's  employ  was  on  duty  from  8  a.  m.  to  8  p. 
m.  to  take  charge  of  the  gates  and  crossing  and  amongst  other  duties 
to  provide  for  tlie  safety  of  foot  passengers. 

Oral  evidence  was  given  that  from  the  cottage  where  the  deceased 
lived  it  would  take  about  ten  minutes  to  walk  to  the  crossing,  that 
he  left  his  cottage  on  the  evening  of  the  1st  of  May  after  tea,  and 
that  he  was  never  seen  again  till  his  body  was  found  the  same  night 
on  the  down  line  near  the  crossing.  There  was  no  evidence  as  to  the 
circumstances  under  which  he  got  onto  the  line.  Witnesses  for  the 
plaintiff  gave  evidence  (not  very  intelligible)  as  to  the  limited  number 
of  yards  at  which  an  approaching  train  could  be  seen  from  the  cross- 
ing, and  as  to  obstructions  to  the  view. 

The  defendants  called  no  witnesses,  and  submitted  that  there  was 
no  case.  Manisty,  J.,  left  the  case  to  the  jury,  who  returned  a  verdict 
for  the  plaintiff  for  £800.  The  Divisional  Court  (Grove,  J.,  Huddles- 
ton,  B.,  and  Hawkins,  J.)  set  aside  the  verdict  and  entered  judgment 
for  the  defendants.  The  Court  of  Appeal  (Brett,  M.  R.,  and  Bo  wen 
and  Fry,  L.  JJ.)  on  the  16th  of  May,  1884,  affirmed  this  decision.  In 
the  course  of  his  judgment,  Brett,  M.  R.,  said  that  in  his  opinion  the 
plaintiff  in  this  case  was  not  only  bound  to  give  evidence  of  negligence 
on  the  part  of  the  defendants  which  was  a  cause  of  the  death  of  tlie 
deceased,  but  was  also  bound  to  give  prima  facie  evidence  that  the 
deceased  was  not  guilty  of  negligence  contributing  to  the  accident,  and 
that  by  reason  of  the  plaintiff  having  been  unable  to  give  any  evidence 
of  the'  circumstances  of  the  accident  she  had  failed  in  giving  evidence 
of  that  necessary  part  of  her  prima  facie  case." 

22Accordiiig  to  the  I.aw  Times  Report.  Brett,  M.  R.,  had  said  in  the  Court 
of  Appeal:     "According,'  to  the  English  law  the  cause  of  action   In   sneh  a 


24  THE  COURT  AND  THE  JURY  fCh.  1 

From  this  decision  the  plaintiff  appealed. 

Lord  Halsbury,  L.  C.^'  My  Lords,  it  is  incumbent  upon  the  plain- 
tiff in  this  case  to  establish  by  proof  that  her  husband's  death  has  been 
caused  by  some  negligence  of  the  defendants,  some  negligent  act,  or 
some  negligent  omission,  to  which  the  injury  complained  of  in  this  case, 
the  death  of  the  husband,  is  attributable.  That  is  the  fact  to  be  proved. 
If  that  fact  is  not  proved  the  plaintiff  fails,  and  if  in  the  absence  of 
direct  proof  the  circumstances  which  are  established  are  equally 
consistent  with  the  allegation  of  the  plaintiff  as  with  the  denial  of  the 
defendants,  the  plaintiff  fails,  for  the  very  simple  reason  that  the 
plaintiff  is  bound  to  establish  the  affirmative  of  the  proposition.  "Ei 
qui  affirmat  non  ei  qui  negat  incumbit  probatio."  I  am  not  certain 
that  it  will  not  be  found  that  the  question  of  onus  of  proof  and  of 
what  onus  of  proof  the  plaintiff  undertook,  with  which  the  Court  of 
Appeal  has  dealt  so  much  at  large,  is  not  rather  a  question  of  subtlety 
of  language  than  a  question  of  law. 

If  the  simple  proposition  with  which  I  started  Is  accurate,  it  is 
manifest  that  the  plaintiff,  who  gives  evidence  of  a  state  of  facts 
which  is  equally  consistent  with  the  wrong  of  which  she  complains 
having  been  caused  by — in  this  sense  that  it  could  not  have  occurred 
without — her  husband's  own  negligence  as  by  the  negligence  of  the 
defendants,  does  not  prove  that  it  was  caused  by  the  defendants' 
negligence.  She  may  indeed  establish  that  the  event  has  occurred 
through  the  joint  negligence  of  both,  but  if  that  is  the  state  of  the 
evidence  the  plaintiff  fails,  because  "in  pari  delicto  potior  est  con- 
ditio defendentis."  It  is  true  that  the  onus  of  proof  may  shift  from 
time  to  time  as  matter  of  evidence,  but  still  the  question  must  ulti- 
mately arise  whether  the  person  who  is  bound  to  prove  the  affirmative 
of  the  issue,  i.  e.,  in  this  case  the  negligent  act  done,  has  discharged 
herself  of  tliat  burden.  I  am  of  opinion  that  the  plaintiff  does  not  do 
this  unless  she  proves  that  the  defendants  have  caused  the  injury  in 
the  sense  which  I  have  explained. 

In  this  case  I  am  unable  to  see  any  evidence  of  how  tliis  unfortunate 
calamity  occurred.  One  may  surmise,  and  it  is  but  surmise  and  not 
evidence,  that  the  unfortunate  man  was  knocked  down  by  a  passing 
train  while  on  the  level  crossing;  but  assuming  in  the  plaintiff's  fa- 
vour that  fact  to  be  established,  is  there  anything  to  show  that  the 

case  was  not  that  the  accident  was  caused  by  the  negligence  of  the  defend- 
ant, for  if  the  plaintiff  was  guilty  of  contributory  negligence,  there  was  no 
cause  of  action.  The  cause  of  action  was  that,  as  between  the  plaintiff  and 
defendant,  the  accident  was  caused  solely  by  the  negligence  of  the  defendant 
without  any  contributory  negligence  of  the  plaintiff.  It  was  for  the  plain- 
tiff to  give  prima  facie  evidence  of  his  cause  of  action,  and  if  he  omitted  to 
give  evidence  of  any  material  part  of  it.  he  must  be  nonsuited.  He  must 
therefore  negative  contributory  negligence  on  his  part."  Wakelin  v.  Loudon 
&  South  Weistern  Ry.  Co.,  55  L.  T.  R.  709  (1886). 

2  3  Part  of  the  opinions  of  Lord  Halsbury  and  Lord  Fitzgerald  and  all  of 
opinion  of  Lord  Blackburn  omitted. 


Sec.  1)  THE   BURDEN   OF  PROOF  25 

train  ran  over  the  man  rather  than  that  the  man  ran  against  the 
train  ?     *     *     * 

The  body  of  the  deceased  man  was  found  in  the  neighborhood  of 
the  level  crossing  on  the  down  line,  but  neither  by  direct  evidence  nor 
by  reasonable  inference  can  any  conclusion  be  arrived  at  as  to  tht 
circumstances   causing  his   death. 

It  has  been  argued  before  your  Lordships  that  we  must  take  the 
facts  as  found  by  the  jury.  I  do  not  know  what  facts  the  jury  are  sup- 
posed to  have  found,  nor  is  it,  perhaps,  very  material  to  inquire,  be- 
cause if  they  have  found  that  the  defendants'  negligence  caused  the 
death  of  the  plaintiff's  husband,  they  have  found  it  without  a  frag- 
ment of  evidence  to  justify  such  a  finding. 

Under  these  circumstances,  I  move  that  the  judgment  appealed 
from  be  affirmed,  and  the  appeal  dismissed. 

Lord  Watson.  My  Lords,  in  the  view  which  I  take  of  the  evidence 
adduced  at  the  trial  before  Manisty,  J.,  it  may  not  be  absolutely  nec- 
essary to  say  anything  in  regard  to  the  onus  which  attaches  to  the 
plaintiff  in  this  and  similar  cases.  I  shall  neverthless  express  my 
opinion  upon  the  point,  because  it  was  discussed  in  the  judgments  de- 
livered in  the  Court  of  Appeal,  and  has  been  fully  and  ably  argued  at 
your  Lordships'  bar. 

It  appears  to  me  that  in  all  such  cases  the  liability  of  the  defendant 
company  must  rest  upon  these  facts — in  the  first  place  that  there  was 
some  negligent  act  or  omission  on  the  part  of  the  company  or  their 
servants  which  materially  contributed  to  the  injury  or  death  com- 
plained of,  and,  in  the  second  place,  that  there  was  no  contributory 
negligence  on  the  part  of  the  injured  or  deceased  person.  But  it  does 
not,  in  my  opinion,  necessarily  follow  that  the  whole  burden  of  proof 
is  cast  upon  the  plaintiff.  That  it  lies  with  the  plaintiff  to  prove  the 
first  of  these  propositions  does  not  admit  of  dispute.  Mere  allega- 
tion or  proof  that  the  company  were  guilty  of  negligence  is  altogether 
irrelevant ;  they  might  be  guilty  of  many  negligent  acts  or  omissions, 
which  might  possibly  have  occasioned  injury  to  somebody,  but  had 
no  connection  whatever  with  the  injury  for  which  redress  is  sought, 
and  therefore  the  plaintiff  must  allege  and  prove,  not  merely  that  they 
were  negligent,  but  that  their  negligence  caused  or  materially  con- 
tributed to  the  injury, 

I  am  of  opinion  that  the  onus  of  proving  affirmatively  that  there  was 
contributory  negligence  on  the  part  of  the  person  injured  rests,  in  the 
first  instance,  upon  the  defendants,  and  that  in  the  absence  of  evi- 
dence tending  to  that  conclusion,  the  plaintiff  is  not  bound  to  prove 
the  negative  in  order  to  entitle  her  to  a  verdict  in  her  favour.  That 
opinion  was  expressed  by  Lord  Hatherley  and  Lord  Penzance  in  the 
Dublin,  Wicklow  &  Wexford  Railway  Company  v.  Slattery,  3  App. 
Cas.  1169,  1180.  I.  agree  with  these  noble  Lords  in  thinking  that, 
whether  the  question  of  such  contributory  negligence  arises  on  a  plea 
of  "not  guilt}',"  or  is  made  the  subject  of  a  counter  issue,  it  is  sub- 


26  THE  COURT  AND  THE  JURY  (Ch.  1 

stantially  a  matter  of  defence,  and  I  do  not  find  that  the  other  noble 
Lords,  who  took  part  in  the  decision  of  Slattery's  Case,  said  anything 
to  the  contrary.  In  expressing  my  own  opinion,  I  have  added  the 
words  "in  the  first  instance,"  because  in  the  course  of  the  trial  the 
onus  may  be  shifted  to  the  plaintiff  so  as  to  justify  a  finding  in  the 
defendants'  favour  to  which  they  would  not  otherwise  have  been  en- 
titled. 

The  difficulty  of  dealing  with  the  question  of  onus  in  cases  like  the 
present  arises  from  the  fact  that  in  most  cases  it  is  well  nigh  impossi- 
ble for  the  plaintiff  to  lay  his  evidence  before  a  jury  or  the  Court 
without  disclosing  circumstances  which  either  point  to  or  tend  to  rebut 
the  conclusion  that  the  injured  party  was  guilty  of  contributory  neg- 
ligence. If  tlic  plaintiff's  evidence  were  sufficient  to  show  that  the 
negligence  of  the  defendants  did  materially  contribute  to  the  injury, 
and  threw  no  light  upon  the  question  of  the  injured  party's  negligence, 
then  I  should  be  of  opinion  that,  in  the  absence  of  any  counter-evi- 
dence from  the  defendants,  it  ought  to  be  presumed  that,  in  point  of 
fact,  there  was  no  such  contributory  negligence.  Even  if  the  plaintiff's 
evidence  did  disclose  facts  and  circumstances  bearing  upon  that  ques- 
tion, which  were  neither  sufficient  per  se  to  prove  such  contributory 
neghgence,  nor  to  cast  the  onus  of  disproving  it  on  the  plaintiff,  I 
should  remain  of  the  same  opinion.  Of  course  a  plaintiff  who  comes 
into  Court  with  an  unfounded  action  may  have  to  submit  to  the  in- 
convenience of  having  his  adversary's  defence  proved  by  his  own  wit- 
nesses; but  that  cannot  aft'ect  the  question  upon  whom  the  onus  lies 
in  the  first  instance.  As  Lord  Hatherly  said  in  Dublin,  Wicklow  & 
Wexford  Railway  Company  v.  Slattery,  3  App.  Cas.  1169:  "If  such 
contributory  negligence  be  admitted  by  the  plaintiff,  or  be  proved  by 
the  plaintiff's  witnesses  while  establishing  negligence  against  the  dcr 
fendants,  I  do  not  think  there  is  anything  left  for  the  jury  to  decide, 
there  being  no  contest  of  fact." 

In  the  present  case,  I  think  the  appellant  must  fail,  because  no  at- 
tempt has  been  made  to  bring  evidence  in  support  of  her  allegations  up 
to  the  point  at  which  the  question  of  contributory  negligence  becomes 
material.  The  evidence  appears  to  me  to  show  that  the  injuries  which 
caused  the  death  of  Henry  Wakelin  were  occasioned  by  contact  with 
an  engine  or  a  train  belonging  to  the  respondents,  and  I  am  willing 
to  assume,  although  I  am  by  no  means  satisfied,  that  it  has  also  been 
proved  that  they  were  in  certain  respects  negligent.  The  evidence  goes 
no  further.  It  affords  ample  materials  for  conjecturing  that  the 
death  may  possibly  have  been  occasioned  by  that  negligence,  but  it 
furnishes  no  data  from  which  an  inference  can  be  reasonably  drawn 
that  as  a  matter  of  fact  it  was  so  occasioned. 

I  am  accordingly  of  opinion  that  the  order  appealed  from  must  be 
affirmed. 

Lord  Fitzge:rald.  *  *  *  It  is  not  necessary  for  me  to  ada 
another  word,  and  I  would  refrain  from  doing  so  if  there  had  not 


Sec.  1)  THE  BURDEN  OP   PROOF  27 

been  some  reasons  given  both  in  the  Divisional  Court  and  in  the  Court 
of  Appeal  which  I  am  not  prepared  to  assent  to  without  further  con- 
sideration. I  understand  the  Master  of  the  Rolls  to  have  laid  down 
that  the  plaintiff  in  such  a  case  is  bound  to  establish,  first,  negli- 
gence on  the  part  of  the  defendants;  second,  that  such  negligence 
caused  the  injury  of  which  the  plaintiff  complains;  and  further,  if 
not  involved  in  number  2,  that  the  plaintiff  was  bound  on  his  case  to 
give  affirmative  evidence  of  the  negative  proposition  that  he  did  not 
negligently  contribute  to  the  accident.  The  latter  proposition  was  not 
very  much  pressed  in  argument  before  us.  It  is  not  necessary  for 
your  Lordships  to  come  to  any  decision  on  it,  but  I  desire  to  guard  my- 
self against  being  supposed  now  to  assent  to  it.     *     *     * 

Before  the  passing  of  Lord  Campbell's  Act,  9  &  10  Vict.  c.  93,  In  a 
common  law  action  for  an  injury  alleged  to  have  been  caused  by  the 
negligence  of  the  defendant,  and  when  that  most  convenient  plea 
"not  guilty"  was  permitted,  I  always  understood  that  if  the  defendant 
relied  as  a  defence  on  contributory  negligence,  though  he  was  permit- 
ted to  establish  it  under  "not  guilty,"  yet  the  issue  lay  on  him,  and  I 
am  not  aware  that  any  different  rule  has  been  established  since  the 
passing  of  that  statute,  or  since  the  practice  has  been  adopted  of  put- 
ting in  special  defences,  whether  the  action  was  at  common  law  for  a 
personal  injury  or  under  the  statute  for  a  wrongful  act  causing  the 
death.  The  plaintiff  does  not  in  the  statement  of  claim  allege  in  terms 
the  absence  of  contributory  negligence,  and  the  defendant  if  he  relies 
on  it  does  so  affirmatively  by  special  defence,  as  in  the  case  now  be- 
fore us :  "The  defendants  further  say  that  the  death  of  the  said  Henry 
Wakelin  was  caused  by  his  own  negligence,  and  that  he  might  and 
could  by  the  exercise  of  reasonable  care  and  caution  have  seen  the 
train  approaching  and  avoided  the  accident." 

It  has  been  truly  said  that  the  propositions  of  negligence  and  con- 
tributory negligence  are  in  such  cases  as  that  now  before  your  Lord- 
ships so  interwoven  as  that  contributory  negligence,  if  any,  is  general- 
ly brought  out  and  estabhshed  on  the  evidence  of  the  plaintiffs'  wit- 
nesses. In  such  a  case,  if  there  is  no  conflict  on  the  facts  in  proof, 
the  judge  may  withdraw  the  question  from  the  jury  and  direct  a  ver- 
dict for  the  defendant,  or  if  there  is  conflict  or  doubt  as  to  the  proper 
mference  to  be  deduced  from  the  facts  in  proof,  then  it  is  for  the  jury 
to  decide.  But  if  the  plaintiff  can  establish  his  case  in  proof  without 
disclosing  any  matters  amounting  to  contributory  negligence  or  from 
which  it  can  be  reasonably  inferred,  then  the  defendant  is  left  to  give 
such  evidence  as  he  can  to  sustain  that  issue. 

It  may  be  that  the  practice  of  the  law  has  in  this  respect  been  al- 
tered, or  ought  to  be  established  on  the  basis  pointed  out  by  the  Mas- 
ter of  the  Rolls,  but  as  yet  that  has  not  been  shown  to  our  satisfaction. 

There  is  another  proposition  in  the  judgment  of  the  Master  of  the 
Rolls  relating  to  the  same  subject-matter  expressed  thus:  "But  al- 
though the  plaintiff  had  given  in  the  first  instance  prima  facie  evi- 


28  THE  COURT  AND  THE  JURY  (Cll.  1 

dence  of  an  absence  of  negligence  on  his  part,  if  the  defendant  brought 
forward  evidence  which  was  contradictory  of  that,  then  you  came 
again  with  the  burden  of  proof  upon  the  plaintiff,  because,  if  upon  the 
conflict  of  that  evidence,  part  of  which  was  given  by  the  plaintiff  and 
part  by  the  defendant,  the  jury  or  the  tribunal  which  had  to  try  the 
fact  is  left  in  doubt  whether  the  plaintiff  was  or  was  not  negligent, 
contributing  to  the  accident,  the  verdict  and  judgment  must  be  for 
the  defendant,  because  the  burden  of  proof  lies  wholly  on  the  plain- 
tiff." If  the  noble  and  learned  Master  of  the  Rolls  means  that  if  the 
evidence  is  such  that  the  jury  might  reasonably  come  to  a  conclusion 
in  favour  of  the  plaintiff  or  might  reasonably  draw  a  contrary  infer- 
ence the  case  is  to  be  withdrawn  from  the  decision  of  the  jury  and  a 
verdict  and  judgment  go  for  the  defendant,  I  desire  to  say  that  I  am 
not  to  be  taken  as  acquiescing  in  that  proposition. 

1  am  of  opinion  that  the  order  of  the  Court  of  Appeal  should  be 
affirmed. 

Appeal  dismissed.** 

2  4  For  the  various  conflicting  views  on  this  subject  In  England,  see  Davey 
V.  Railway,  12  Q.  B.  70  (1883);  Bridges  v.  Railway,  L.  R.  7  H.  L.  C.  213 
(1873);  Railway  v.  Slattery,  3  App.  Cas.  1155  (1878). 

In  the  United  States  there  is  the  same  conflic|:- Lamar,  J.,  in  Central  Ver- 
mont Ry.  Co.  V.  White,  238  U.  S.  507,  35  Sup.  t!t-.  865,  59  L.  Ed.  1433,  Ann. 
Cas.  19166,  252  (1915),  says:  "But  it  is  a  misnomer  to  say  that  the  question 
as  to  the  burden  of  proof  as  to  contributory  negligence  is  a  mere  matter  of 
state  procedure.  For,  in  Vermont,  and  in  a  few  other  states,  proof  of  plain- 
tiff's freedom  from  fault  is  a  part  of  the  very  substance  of  his  case.  He 
must  not  only  satisfy  the  jury  (1)  that  he  was  injured  by  the  negligence  of 
the  defendant,  but  he  must  go  further  and,  as  a  condition  of  his  right  to 
recover,  must  also  show  (2)  that  he  was  not  guilty  of  contributory  negli- 
gence. In  those  states  the  plaintiff  is  as  much  under  the  necessity  of  prov- 
ing one  of  these  facts  as  the  other;  and  as  to  neither  can  it  be  said  that 
the  burden  is  imposed  by  a  rule  of  procedure,  since  it  arises  out  of  the  gen- 
eral obligation  imposed  upon  every  plaintiff,  to  establish  all  of  the  facts 
necessary  to  make  out  his  cause  of  action.  But  the  United  States  courts 
have  uniformly  held  that  as  a  matter  of  general  law  the  burden  of  proving 
contributory  negligence  is  on  the  defendant.  The  Federal  courts  have  en- 
forced that  principle  even  in  trials  in  states  which  hold  that  the  burden 
in  on  the  plaintiff.  Washington  &  G.  Railroad  v.  Gladmon,  15  Wall.  401  (1), 
407,  408,  21  L.  Ed.  114  (1872) ;  Hough  v.  Texas  &  P.  Railway  Co.,  100  U.  S. 
225,  25  L.  Ed.  612  (1879) ;  Inland  &  S.  Coasting  Co.  v.  Tolson,  139  U.  S.  551 
(4),  557,  11  Sup.  Ct.  653,  35  L.  Ed.  270  (1891);  Washington  &  G.  R.  Co.  v. 
Harmon,  147  U.  S.  581,  13  Sup.  Ct.  557,  37  L.  Ed.  284  (1893) ;  Hemingway  v. 
111.  Cent.  R.  R.,  114  Fed.  843,  52  C.  C.  A.  477  (1902).  Congress  in  passing  the 
federal  Employers'  Liability  Act  evidently  intended  that  the  federal  statute 
should  be  construed  in  the  light  of  these  and  other  decisions  of  federal  courts, 
Such  construction  of  the  statute  was,  in  effect,  approved  in  Seaboard  Air 
Line  Ry.  v.  Moore,  228  U.  S.  434,  33  Sup.  Ct.  580,  57  L.  Ed.  907  (1913).  There 
was,  therefore,  no  error  In  failing  to  enforce  what  the  defendant  calls  the 
Vermont  rule  of  procedure  as  to  the  burden  of  proof." 

In  Lane  v,  Crombie,  12  Fick.  (Mass.)  177  (1831),  it  was  held  that  the 
burden  was  on  the  plaintiff  to  establish  freedom  from  contributory  fault. 
In  Illinois  the  same  rule  was  adopted,  on  the  authority  of  Lane  v.  Crombie. 
in  Aurora  Branch  Ry.  Co.  v.  Grimes,  13  111.  585  (1852).  The  same  rule  ap- 
pears to  prevail  in  New  York.  Wieland  v.  President,  etc.,  of  Delaware  &  H. 
Canal  Co.,  167  N.  Y.  19,  60  N.  E.  2.34,  82  Am.  St.  Rep.  707  (1901).  But 
see  section  841b,  Code  Civ.  Proc.  (Amended  in  1913),  placing  the  burden  on 


Sec.  1)  THE   BURDEN   OF   PROOF  29 


ELLIOTT  V.  CHICAGO,  M.  &ST.  P.  RY.  CO. 

(Supreme  Court  of  the  United  States,  1S93.     150  U.  S.  245,  14  Sup.  C?t.  85, 

37  L.  Ed.  10G8.) 

Mr.  Justice  BrEwER.^'  The  question  in  this  case  is  as  to  the  liability 
of  the  company  for  the  death  of  John  ElHott.  The  company  made 
three  defenses:  (1)  That  it  was  guilty  of  no  negligence;  (2)  that,  if 
there  were  any  negligence,  it  was  that  of  a  fellow  servant ;  and  (3) 
that  Elliott  was  guilty  of  contributory  negligence.  The  supreme  court 
of  the  territory,  in  its  opinion  filed  when  the  case  was  first  in  that  court, 
considered  the  last  two  defenses  as  sustained,  and,  because  thereof,  re- 
versed the  judgment  in  favor  of  the  plaintiff.  All  of  them  have  been 
presented  and  fully  argued  in  this  court,  but,  as  we  consider  the  third 
sufficient,  it  is  unnecessary  to  notice  tlie  first  two.  We  are  of  opinion 
that  the  deceased  was  guilty  of  contributory^^  negligence,  such  as  to 
bar  any  recovery.  jT^is  true  that  questions  of  negligence  and  contribu- 
tory negligence  are  ordinarily  questions  of  fact  to  be  passed  upon 
by  a  jury ;  yet,  when  the  undisputed  evidence  is  so_  conclusive  that 
the  court  would  be  compelled  to  set  aside  a  verdict  returned  in  op- 
position to  it,  it  may  withdraw  the  case  from  the  consideration  of  the 
jury,  and  direct  a  verdicTTf  Railroad  Co.  v,  Houston,  95  U.  S.  697, 
24  L.  Ed.  542;  Schofield  v.  Railroad  Co.,  114  U.  S.  615,  5  Sup.  Ct. 
1125,  29  L.  Ed.  224;  Railroad  Co.  v.  Converse,  139  U.  S.  469,  11  Sup. 
Ct.  569,  35  L.  Ed.  213;  Aerkfetz  v.  Humphreys,  145  U.  S.  418,  12 
Sup.  Ct.  835,  36  L.  Ed.  758. 

What,  then,  are  the  facts  concerning  the  accident?  It  took  place 
at  a  station  called  '"Meckling,"  a  hamlet  of  two  or  three  houses,  and  of 
so  little  importance  that  at  the  time  the  company  had  no  station  agent 
there.  The  main  track  of  the  defendant's  road  ran  eastward  and 
westward  in  a  straight  line,  and  the  ground  was  level.  On  the  north 
side  of  this  track  was  a  siding,  728  feet  in  length  from  switch  to  switch, 
and  distant  from  the  main  track  at  the  maximum  16  feet.  This  siding 
was  tlie  only  extra  track  at  the  place.  About  ICX)  feet  east  from  the 
west  switch  was  the  depot,  on  the  south  of  the  track,  and  some  10 
feet  therefrom.  Two  hundred  feet  east  of  that  was  a  small  car  house, 
sixteen  feet  from  the  track.     These  were  the  only  buildings  on  the 

the  defeijdant  in  actions  for  causing  death.  In  Sackheim  v.  Pigueron,  215 
2s.  Y.  62,  109  N.  E.  109  (1915),  this  statute  was  applied  to  a  cause  of  action 
which   arose  before  the  amendment. 

2  6  Statement  and  part  of  opinion  omitted. 

2  8  In  the  federal  courts  the  defendant  has  the  burden  of  establishing  con- 
tributory negligence  when  it  becomes  a  question  for  the  jury.  Central  Ver- 
mont Ry.  Co.  V.  White,  23S  U.  S.  507,  35  Sup.  Ct.  865,  59  L.  Ed.  1433,  Ann. 
Cas.  191GB.  252  (1915).  In  accordance  with  the  ruling  in  the  principal  case, 
a  verdict  niav  be  directed  for  defendant  on  any  other  affirmative  defense. 
Oscauvan  v.  Winchester  Repeating  Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539 
(1880),  illegality;  Wallner  v.  Chicago  Cousol.  Traction  Co.,  245  111.  148,  91 
N.  E.  1053  (1910),  accord  and  satisfaction. 


30  THE  COURT  AND  THE  JURY  (Cll.  1 

depot  grounds.  No  cars  were  standing  on  the  track  or  siding.  The 
day  was  clear,  and  there  was  nothing  to  prevent  the  deceased  from 
seeing  all  that  was  going  on.  He  was  foreman  of  a  section  gang,  and 
had  been  working  on  this  track  for  10  or  more  years.  In  expectation 
of  a  coming  freight  train,  his  men  had  placed  their  hand  car  on  the 
siding.  The  train  was  due  at  8 :25  a.  m.,  but  was,  perhaps,  five  or  ten 
minutes  late.  It  came  from  the  west,  and  at  this  station  made  a  double 
flying  switch.  This  was  accomplished  by  uncoupling  the  train  at  two 
places,  thus  breaking  it  into  three  sections.  The  first  section,  consist- 
ing of  the  engine  and  18  cars,  moved  along  the  main  track,  but,  be- 
fore the  balance  of  the  train  reached  the  switch,  (its  speed  having  been 
checked  by  brakes,)  that  was  turned  so  that  two  cars  (constituting 
the  second  section,  and  under  the  control  of  a  brakeman)  passed  onto 
the  siding.  The  rear  section  having  been  still  further  checked  by 
brakes,  the  switch  was  reset,  so  that  it  passed  onto  the  main  track, 
following  the  first  section.  The  rear  section  consisted  of  a  flat  car,  a 
box  car,  a  caboose,  and  an  empty  passenger  coach,  and  was  under 
the  care  of  the  conductor  and  one  brakeman.  As  the  second  section 
was  thrown  by  the  flying  switch  onto  the  siding,  two  of  the  men  started 
to  push  the  hand  car  towards  the  east,  so  as  not  to  be  struck  by  the 
approaching  freight  cars.  The  deceased,  at  the  time  the  first  section 
passed  the  car  house,  was  standing  some  sixteen  feet  west  thereof, 
and  four  or  five  feet  from  the  track,  talking  with  one  of  his  men. 
After  a  short  conversation,  the  latter  started  towards  the  depot,  while 
the  deceased  walked  eastward  along  the  track  until  he  had  passed  a 
few  feet  beyond  the  car  house,  when  he  started  hastily  towards  the 
siding.  His  attention  had  apparently  been  called  by  the  approach  of  the 
two  cars  on  the  siding  to  the  hand  car,  for  he  ma'de  some  call  to  the 
men  who  were  pushing  that  hand  car.  He  crossed  the  main  track  diag- 
onally, his  face  turned  eastward.  The  rear  section,  coming  along  from 
the  west,  struck  and  crushed  him.  This  rear  section,  when  it  passed 
the  depot,  was  moving  slowly,  not  faster  than  a  walk,  as  one  of  the 
witnesses  testified.  That  it  was  moving  quite  slowly  is  evident  from 
the  fact  that  it  came  to  a  stop  after  two  cars  and  the  caboose  had  passed 
over  the  body  of  the  deceased,  and  this  though  no  special  effort  was 
made  to  check  them  after  the  deceased  had  been  struck,  the  conduc- 
tor and  brakeman  on  that  section  being  unaware  of  the  accident. 
When  he  started  to  cross  the  track  this  approaching  section  was  not 
to  exceed  25  or  30  feet  from  him. 

It  thus  appears  that  the  deceased,  an  experienced  railroad  man,  on  a 
bright  morning,  and  with  nothing  to  obstruct  his  vision,  started  along 
and  across  a  railroad  track,  with  which  he  was  entirely  familiar,  with 
cars  approaching  and  only  25  or  30  feet  away,  and,  before  he  gets 
across  that  track,  is  overtaken  by  those  cars  and  killed.  But  one  ex- 
planation of  his  conduct  is  possible,  and  that  is  that  he  went  upon  the 
track  without  looking  to  see  whether  any  train  was  coming.     Such 


Sec.  1)  '  THE   BURDEN   OF   PROOF  31 

omission  has  been  again  and  again,  both  as  to  travelers  on  the  high- 
way and  employes  on  the  road,  affirmed  to  be  negligence.  The  track 
itself,  as  it  seems  necessary  to  iterate  and  reiterate,  is  itself  a  warning. 
It  is  a  place  of  danger.  It  can  never  be  assumed  that  cars  are  not  ap- 
proaching on  a  track,  or  that  there  is  no  danger  therefrom.  It  may 
be,  as  is  urged,  that  his  motive  was  to  assist  in  getting  the  hand  car 
out  of  the  way  of  the  section  moving  on  the  siding.  But  whatever  his 
motive,  the  fact  remains  that  he  stepped  onto  the  track  in  front  of 
an  approaching  train,  without  looking  or  taking  any  precautions  for 
his  own  safety. 

This  is  not  a  case  in  which  one,  placed  in  a  position  of  danger 
through  the  negligence  of  the  company,  confused  by  his  surroundings, 
makes  perhaps  a  mistake  in  choice  as  to  the  way  of  escape,  and  is 
caught  in  an  accident,  for  here  the  deceased  was  in  no  danger.  He 
was  standing  in  a  place  of  safety  on  the  south  of  the  main  track.  He 
went  into  a  place  of  danger  from  a  place  of  safety,  and  went  in  without 
taking  the  ordinary  precautions  imperatively  required  of  all  who  place 
themselves  in  a  similar  position  of  danger. 

The  trial  court  was  right  in  holding  that  he  was  guilty  of  contribu- 
tory negligence.  So,  without  considering  the  other  questions  presented 
in  the  record,  the  judgment  will  be  afiirmed.     *     *     *  ^^ 

27  Chapman,  J.,  in  Denny  v.  Williams,  5  Allen  (Mass.)  1  (1S62):  "The 
question  whether  the  jury  have  found  a  verdict  for  the  plaintiff  against  the 
weight  of  the  evidence  is  not  before  us.  That  question  could  not  be  raised 
in  any  wav  except  by  a  motion  for  a  new  trial.  If  there  was  any  evidence 
which  it  was  proper  to  submit  to  a  jury,  the  judge  was  right  in  submitting 
it  to  them,  and  the  exception  must  be  overruled.  It  is  only  in  a  very  limited 
class  of  cases  that  such  a  question  can  be  brought  to  this  court  by  exceptions. 
They  are  cases  where  the  evidence  is  insufficient  in  law  to  support  a  verdict. 
Commonwealth  v.  Packard,  5  Gray  (Mass.)  101  (1855);  Chase  v.  Breed,  5 
Gray  (Mass.)  440  (1855);  Commonwealth  v,  Merrill,  14  Gray  (Mass.)  417, 
77  Am.  Dec.  336  (ISGO) ;  Polley  v.  Lenox  Iron  Works,  4  Allen  (Mass.)  329 
(1862).  In  such  cases,  a  refusal  of  the  judge  to  instruct  the  jury  that  the 
evidence  is  insufficient  is  a  good  ground  of  exception.  It  is  not  necessary 
that  there  should  be  absolutely  no  evidence.  The  rule,  as  stated  in  Browne 
on  the  St.  of  Frauds,  c.  15,  §  321,  is  sustained  by  the  authorities  cited: 
'Whether  there  has  been  a  delivery  and  acceptance  sufficient  to  satisfy  the 
statute  of  frauds  is  a  mixed  question  of  law  and  fact.  But  it  is  for  tOie 
court  to  withhold  the  facts  from  the  jury,  when  they  are  not  such  as  can 
afford  any  ground  for  finding  an  acceptance;  and  tliis  includes  cases  whore, 
though  the  court  might  admit  that  there  was  a  scintilla  of  evidence  tending 
to  show  an  acceptance,  they  would  still  feel  bound  to  set  aside  a  verdict 
finding  an  acceptance  upon  that  evidence.'  What  this  scintilla  is,  needs  to 
be  stated  a  little  more  definitely ;  otherwise  it  may  be  understood  to  include 
all  cases  where,  on  a  motion  for  a  new  trial,  a  verdict  would  be  set  aside, 
as  against  the  weight  of  the  evidence.  It  would  be  impossible  to  draw  a 
line  theoreticallv,  because  evidence  in  its  very  nature  varies  from  the  weak- 
est to  the  strongest,  by  imperceptible  degrees.  But  the  practical  line  of  dis- 
tinction is,  that  if  the  evidence  is  such  that  the  court  would  .set  aside  any 
number  of  verdicts  rendered  upon  it,  toties  quoties,  then  the  cause  should  be 
taken  from  the  jury,  by  instructing  them  to  find  a  verdict  for  the  defendant. 
On  the  other  hand,  if  the  evidence  is  such  that,  though  one  or  two  ver- 
dicts rendered  upon  it  would  be  set  aside  on  motion,  yet  a  second  or  third 
verdict  would  be  suffered  to  stand,  the  cause  should  not  be  taken  from  the 


32  THE  COURT  AND  THE  JURY  (Ch.  1 

McDonald  v.  metropolitan  st.  ry.  co. 

(Court  of  Appeals  of  New  York,  1901.     167  N.  Y.  66,  60  N.  E.  282.) 

Martin,  J.  This  action  was  for  personal  injuries  resulting  in  the 
death  of  the  plaintiff's  intestate,  and  was  based  upon  the  alleged  neg- 
ligence of  the  defendant.  An  appeal  was  allowed  to  this  court  upon 
the  ground  of  an  existing  conflict  in  the  decisions  of  different  de- 
partments of  the  appellate  division  as  to  when  a  verdict  may  be  direct- 
ed where  there  is  an  issue  of  fact,  and  because  in  this  case  an  erro- 
neous principle  was  asserted,  which,  if  allowed  to  pass  uncorrected, 
would  be  likely  "to  introduce'  confusion  into  the  body  of  the  law." 
Sciolina  v.  Preserving  Co.,  151  N.  Y.  50,  45  N.  E.  371.  The  court 
having  directed  a  verdict,  the  appellant  is  entitled  to  the  most  favor- 
able inferences  deducible  from  the  evidence,  and  all  disputed  facts  are 
to  be  treated  as  established  in  her  favor.  Ladd  v.  Insurance  Co.,  147 
N.  Y.  478,  482,  42  N.  E.  197;  Higgins  v.  Eagleton,  155  N.  Y.  466, 
50  N.  E.  287;  Ten  Eyck  v.  Whitbeck,  156  N.  Y.  341,  349,  50  N.  E. 
963;  Bank  v.  Weston,  159  N.  Y.  201,  208,  54  N.  E.  40,  45  L.  R.  A. 
547.  If  believed,  the  testimony  of  the  plaintiff's  witnesses  was  sufff- 
cient  to  justify  the  jury  in  finding  the  defendant  negligent,  and  the 
plaintiff's  intestate  free  from  contributory  negligence.  The  evidence 
of  the  defendant  was  in  many  respects  in  direct  conflict,  and,  if  cred- 
ited, would  have  sustained  a  verdict  in  its  favor.  Whether  the  de- 
fendant was  negligent,  the  plaintiff's  intestate  free  from  contributory 
negligence,  and  the  amount  of  damages,  were  submitted  to  the  jury. 
It,  however,  having  agreed  upon  a  general  verdict,  and  failed  to  an- 
swer the  questions  submitted,  the  trial  judge  withdrew  them,  and  di- 
rected a  verdict  for  the  defendant.  Upon  the  verdict  so  directed,  a 
judgment  was  entered.  Subsequently  an  appeal  was  taken  to  the  ap- 
pellate division,  where  it  was  affirmed,  and  the  plaintiff  has  now  ap- 
pealed to  this  court. 

Although  there  was  a  direct  and  somewhat  severe  conflict  in  the 
evidence,  the  questions  of  negligence  and  contributory  negligence  were 
clearly  of  fact,  and  were  for  the  jury,  and  not  for  the  court,  unless 
the  right  of  trial  by  jury  has  been  partially,  if  not  wholly,  abolished. 
It  was  assumed  below  that  the  plaintiff's  evidence  established  a  case 
which,  undisputed,  was  sufficient  to  warrant  a  verdict  in  her  favor. 
But  the  court  said  that  at  the  close  of  the  defendant's  evidence  the 
plaintiff's  case  had  been  so  far  overcome  that  a  verdict  in  her  favor 
would  have  been  set  aside  as  against  the  weight  of  evidence.  Upon 
that  alleged  condition  of  the  proof  it  held  that  the  trial  court  might 

jury,  but  should  be  submitted  to  them  under  instructions.  This  rule  throws 
upon  the  court  a. duty  which  may  sometimes  be  very  delicate;  but  it  seems 
to  be  the  only  practicable  rule  which  the  nature  of  the  case  admits." 

For  the  rule  govex-ning  setting  a  verdict  aside  as  against  tlie  evidence,  see 
Metropolitan  Ry.  Co.  v.  Moore,  121  U.  S.  558,  7  Sup.  Ct.  1334,  30  L.  Ed.  1022 
<1S87)  :  Jones  v.  Spencer,  77  L.  T.  R.  536  (1S97). 


Sec.  1)  THE   BURDER   OF   PROOF 


33 


have  properly  submitted  the  case  to  the  jury  if  it  saw  fit,  but  that  it 
was  not  required  to,  as  the  verdict  might  have  been  thus  set  aside. 
The  practical  result  of  that  decision,  if  sustained,  is  in  every  close  case 
to  vest  in  the  trial  court  authority  to  determine  questions  of  fact,  al- 
though the  parties  have  a  right  to  a  jury  trial,  if  it  thinks  that  the 
weight  of  evidence  is  in  favor  of  one,  and  it  directs  a  verdict  in  his 
favor.  There  have  been  statements  by  courts  which  seem  to  lend  some 
justification  to  that  theory,  but  we  think  no  such  broad  principle  has 
been  intended,  and  that  no  such  rule  can  be  maintained  either  upon 
principle  or  authority.  The  rule  that  a  verdict  may  be  directed  when- 
ever the  proof  is  such  that  a  decision  to  the  contrary  might  be  set 
aside  as  against  the  weight  of  evidence  would  be  both  uncertain  and 
delusive.  There  is  no  standard  by  which  to  determine  when  a  verdict 
may  be  thus  set  aside.  It  depends  upon  the  discretion  of  the  court. 
The  result  of  setting  aside  a  verdict  and  the  result  of  directing  one 
are  widely  different,  and  should  not  be  controlled  by  the  same  con- 
ditions or  circumstances.  In  one  case  there  is  a  retrial;  in  the  other 
the  judgment  is  final.  One  rests  in  discretion;  the  other  upon  legal 
right.  One  involves  a  mere  matter  of  remedy  or  procedure;  the  oth- 
er determines  substantive  and  substantial  rights.  Such  a  rule  would 
have  no  just  principle  upon  which  to  rest. 

While  in  many  cases,  even  where  the  evidence  is  sufficient  to  sus- 
tain it,  a  verdict  may  be  properly  set  aside,  and  a  new  trial  ordered, 
yet  that  in  every  such  case  the  trial  court  may,  whenever  it  sees  fit, 
direct  a  verdict,  and  thus  forever  conclude  the  parties,  has  no  basis  in 
the  law,  which  confides  to  juries,  and  not  to  courts,  the  determination 
of  the  facts  in  this  class  of  cases.  We  think  it  cannot  be  correctly 
said  in  any  case  where  the  right  of  trial  by  jury  exists,  and  the  evi- 
dence presents  an  actual  issue  of  fact,  that  the  court  may  properly  di- 
rect a  verdict.  So  long  as  a  question  of  fact  exists,  it  is  for  the  jury, 
and  not  for  the  court.  If  the  evidence  is  insufficient,  or  if  that  which 
has  been  introduced  is  conclusively  answered,  so  that,  as  a  matter  of 
law,  no  question  of  credibility  or  issue  of  fact  remains,  then,  the  ques- 
tion being  one  of  law,  it  is  the  duty  of  the  court  to  determine  it.  But 
whenever  a  plaintiff  has  established  facts  or  circumstances  which 
would  justify  a  finding  in  his  favor,  the  right  to  have  the  issue  of  fact 
determined  by  a  jury  continues,  and  the  case  must  ultimately  be  sub- 
mitted to  it.  The  credibility  of  witnesses,  the  effect  and  weight  of 
conflicting  and  contradictory  testimony,  are  all  questions  of  fact,  and 
not  questions  of  law.  If  a  court  of  review,  having  power  to  examine 
the  facts,  is  dissatisfied  with  a  verdict  because  against  the  weight  or 
preponderance  of  evidence,  it  may  be  set  aside ;  but  a  new  trial  must 
be  granted  before  another  jury,  so  that  the  issue  of  fact  may  be  ul- 
timately determined  by  the  tribunal  to  which  those  questions  are  con- 
fided. If  tliere  is  no  evidence  to  sustain  an  opposite  verdict,  a  trial 
court  is  justified  in  directing  one,  not  because  it  would  have  authority 

IIINT.EV.— 3 


24  THH  COURT  AND  THE  JURY  (Cll.  1 

to  set  aside  an  opposite  one,  but  because  there  was  an  actual  defect  of 
proof ;  and  hence,  as  a  matter  of  law,  the  party  was  not  entitled  to 
recover.  Colt  v.  Railroad  Co.,  49  N.  Y.  671 ;  Bagley  v.  Bowe,  105  N. 
N.  Y.  171,  179,  11  N.  E.  386,  59  Am.  Rep.  488. 

We  have  recently  considered  the  question  involved  in  the  case  at 
bar,  have  practically  reaffirmed  the  doctrine  of  the  foregoing  cases, 
and  have  reviewed  the  cases  upon  which  the  court  below  seems  to  have 
based  its  decision.  Fealey  v.  Bull,  163  N.  Y.  397,  57  N.  E.  631.  The 
learned  judge  who  delivered  the  opinion  in  that  case  plainly  demon- 
strated that  the  doctrine  enunciated  by  the  court  below  has  no  actual 
support  in  Linkauf  v.  Lombard,  137  N.  Y.  417,  33  N.  E.  472,  20  L. 
R.  A.  48,  33  Am.  St.  Rep.  743,  and  Hemmens  v.  Nelson,  138  N.  Y. 
517,  34  N.  E.  342,  20  L.  R.  A.  440.  He  shows  that  in  those  cases  there 
was  no  sufficient  evidence  to  sustain  the  verdicts,  and  that,  if  there 
had  been,  this  court  would  have  had  no  jurisdiction  to  reverse.  His 
examination  further  discloses  that  the  reversal  in  the  Einkauf  Case 
was  upon  the  ground  that  the  proof  amounted  at  most  to  a  mere  sur- 
mise, and  that  in  the  Hemmens  Case  the  principle  that,  if  there  is  any 
evidence  upon  a  question  of  fact,  it  should  be  submitted  to  the  jury, 
was  asserted.  The  clearness  and  ability  with  which  the  question  was 
discussed  by  him  render  it  unnecessary  to  further  consider  it  at  this 
time.  We  are  of  the  opinion  that  a  plain  issue  of  fact  was  presented 
for  the  jury;  that  the  court  erred  in  directing  a  verdict;  that  the 
judgment  and  order  should  be  reversed,  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 

Parkeir,  C.  J.,  and  Bartlett,  Vann,  Cullen,  and  WernEr,  JJ., 
concur.    Gray,  J.,  dissents. 

Judgment  reversed,  etc.^' 


WINANS  et  al.  v.  ATTORNEY  GENERAL. 
(House  of  Lords.     [1904]  App.  Cas.  287.) 

William  Louis  Winans  was  born  in  the  United  States  in  1823.  In 
1859  he  came  to  England  and  lived  there  in  various  places  until  his 
death  in  1897.  By  his  will  he  bequeathed  an  annuity  to  a  relative,  and 
the  question  in  this  appeal  was  whether  he  was  at  his  death  domiciled 
in  England.  If  he  was,  legacy  duty  was  payable ;  otherwise  not.  The 
Attorney  General  having  filed  an  information  against  the  appellants 
(who  were  the  executors)  to  recover  the  duty,  Kennedy  and  Philli- 
more,  JJ.,  held  that  the  testator  was  at  his  decease  domiciled  in  Eng- 
land and  that  the  duty  was  payable.  This  decision  was  affirmed  by  the 
Court  of  Appeal  (Collins,  M.  R.,  and  Stirling  and  Mathew,  L.  JJ.) 

2 8 Accord:  Dublin  Ry.  Co.  v.  Slattery,  3  App.  Cas.  (H.  of  L.)  1155  (1S7S) ; 
Phillips  V.  Phillips,  93  Io\Ya,  615,  61  N.  W.  1071  (1895) ;  Bailev  v.  Robison, 
233  111.  614,  84  N.  E.  060  (1908). 

Compare  Hite  v.  Metropolitan  St.  Ry.  Co.,  130  Mo.  132,  31  S.  W,  262,  32 
S.  W.  33,  51  Am.  St.  Rep.  555  (1895). 


Sec.  1)  THE   BURDEN   OF   PROOF  35 

Hence  this  appeal.  The  arguments  turned  entirely  on  the  true  infer- 
ence of  fact  to  be  drawn  from  the  evidence,  which  is  fully  stated  in 
Lord  Macnagh ten's  judgment. 

Earl  of  Hai.sbury,  L.  C.  My  Lords,  the  short  question  here  is 
whether  Mr.  Winans  was  at  the  time  of  his  death  domiciled  in  this 
country.  So  far  as  it  is  a  question  of  law  it  is  simple  enough  to  state, 
but  when  the  law  has  been  stated  a  difficult  and  complex  question  of 
fact  arises  which  it  is  almost  always  very  hard  to  solve. 

Now  the  law  is  plain,  that  where  a  domicil  of  origin  is  proved  it  lies 
upon  the  person  who  asserts  a  change  of  domicil  to  establish  it,  and  it 
is  necessary  to  prove  that  the  person  who  is  alleged  to  have  changed  his 
domicil  had  a  fixed  and  determined  purpose  to  make  the  place  of  his 
new  domicil  his  permanent  home.  Although  many  varieties  of  ex- 
pression have  been  used,  I  believe  the  idea  of  domicil  may  be  quite 
adequately  expressed  by  the  phrase — Was  the  place  intended  to  be  the 
permanent  home?  Now  Mr.  Winans  was  an  American  citizen;  he 
resided  in  Russia  for  some  time;  he  had  various  residences  in  Eng- 
land, and  great  sporting  leases  in  Scotland.  He  married  in  St.  Peters- 
burg a  Guernsey  lady.  He  had  property  in  the  United  States,  and  he 
originally  came  to  England  upon  the  recommendation  of  his  medical 
man.  He  lived  a  very  long  time  in  England,  and  if  I  were  satisfied 
that  he  intended  to  make  England  his  permanent  home  I  do  not  think 
it  would  make  any  difference  that  he  had  arrived  at  the  determination 
to  make  it  so  by  reason  of  the  state  of  his  health,  as  to  which  he  was 
very  solicitous.  It  would  be  enough  that  for  obvious  reasons  he  had 
determined  to  make  England  his  permanent  home.  But  was  that  his 
determination  ?  I  confess  I  am  not  able  very  confidently  to  answer  that 
question  either  way.  I  have  been  in  considerable  doubt,  when  I  view 
his  whole  career,  whether  he  ever  intended  finally  to  remain  here. 
He  had  invented  cigar-shaped  boats,  in  which  he  took  a  deep  interest 
as  inventor,  and  also  as  one  who  meant  to  travel  back  to  his  own  coun- 
try when  his  boats  succeeded. 

It  may  be  that  your  Lordships  do  not  think  that  he  was  likely  to 
succeed,  but  it  may  confidently  be  asserted  that  the  inventor  thor- 
oughly believed  that  he  would  succeed.  It  is  true  that  great  reliance 
might  not  only  be  placed  upon  his  great  acquisition  of  sporting  areas 
in  Scotland,  but,  on  the  other  hand,  they  were  treated  by  him  rather  as 
profit-making  investments  than  because  he  himself  was  devoted  to 
sport;  but  even  in  this,  as  in  some  other  parts  of  his  conduct,  it  is 
difficult  to  say  that  a  certain  inference  could  be  deduced  from  what  he 
did.  Being  a  man  of  enormous  wealth,  he  never  made  such  a  home 
for  himself  or  his  family  as  one  would  have  expected  if  he  had  really 
meant  to  remain  permanently  in  England.  Like  all  questions  of  fact 
dependent  upon  a  variety  of  smaller  facts,  it  is  possible  to  treat  this 
or  that  evidence  as  conclusive,  and  dift'erent  minds  will  attribute  dif- 
ferent degrees  of  importance  to  the  same  facts. 


36  THE  COURT  AND  THE  JURY  (Ch.  1 

I  must  admit  that  I  have  regarded  the  whole  history  of  Mr.  Winans' 
life  differently  at  different  stages  of  the  argument,  and  the  conclusion 
I  have  come  to  is  that  I  cannot  say  that  I  can  come  to  a  satisfactory 
conclusion  either  v^'ay ;  but  then  the  law  relieves  me  from  the  embar- 
rassment which  would  otherwise  condemn  me  to  the  solution  of  an  in- 
soluble problem,  because  it  directs  me  in  my  present  state  of  mind  to 
consider  upon  whom  is  the  burden  of  proof.  Undoubtedly  it  is  upon 
the  Crown,  and,  as  I  cannot  bring  myself  to  a  conclusion,  either  way, 
whether  Mr.  Winans  did  or  did  not  intend  to  change  his  domicil,  his 
domicil  of  origin  must  remain,  and  I,  therefore,  am  of  opinion  that  the 
judgment  of  the  Court  of  Appeal  ought  to  be  reversed. 

Orders  of  the  Court  of  Appeal  and  of  the  Queen's  Bench  Division 
reversed.'" 


PELITIER  V.  CHICAGO,  ST.  P.,  M.  &  O.  RY.  CO. 

(Supreme  Court  of  Wisconsin,  1S94.    88  Wis.  521,  60  N.  W.  250.) 

WiNSLOW,  J.^°  *  *  *  'pj^g  instructions  applicable  to  the  fourth 
question  and  to  which  plaintiff  excepted  will  be  given  at  length.  After 
instructing  the  jury  that  the  burden  of  proof  with  reference  to  cer- 
tain questions  was  on  the  plaintiff,  the  court  said :  "You  are  in- 
structed that  it  is  incumbent  on  the  party  upon  whom  the  burden  of 
proof  rests,  to  establish  the  existence  of  a  fact  in  controversy,  to  sat- 
isfy you  by  a  preponderance  of  evidence  that  such  fact  does  exist; 
otherwise,  you  should  find  to  the  contrary — that  is  to  say,  you  should 
carefully  weigh  all  the  evidence  produced  by  both  parties  bearing  on 
any  such  controversy,  and  determine  upon  which  side  such  evidence 
preponderates,  if  you  can.  If  the  same  is  so  evenly  balanced  that  you 
cannot  determine  on  which  side  the  same  preponderates,  or  if  you 
conclude  that  the  preponderance  of  evidence  is  against  the  party  on 
whom  the  burden  of  proof  rests,  or  if,  notwithstanding  there  is  to 
your  minds  a  preponderance  of  evidence  tending  to  establish  a  fact  in 
controversy,  you  are  yet  not  satisfied  of  its  existence,  your  finding 
should  be  against  tlie  party  on  whom  the  burden  of  proof  rests.  Such 
finding  should  be  in  favor  of  the  side  on  which  the  burden  of  proof 
rests  only  when  you  are  satisfied  that  the  preponderance  of  evidence  in 
respect  to  the  controversy  tends  to  establish  the  existence  of  the  fact 
involved,  and  you  are  satisfied  to  a  reasonable  certainty  that  the  fact 
does  exist  which  such  preponderance  of  evidence  tends  to  establish. 
You  are  further  instructed  that  the  term  'preponderance  of  evidence,' 
as  here  used,  does  not  necessarily  mean  the  greatest  number  of  wit- 
nesses. It  frequently  happens  that  tliere  are  more  witnesses  on  one 
side  of  a  controversy  than  on  the  other,  yet  the  greatest  weight  of  evi- 

2  9  Concurring  opinion  of  Lord  Macnaghten  and  dissenting  opinion  of  Lord 
Lindley  omitted. 

•''"  Statement  and  part  of  opinion  omitted. 


Sec.  1)  THE  BURDEN   OF   PROOF  37 

dencc  is  on  the  side  of  the  lesser  number  of  witnesses ;  and  in  all  such 
cases  it  is  the  weight  of  evidence  that  counts,  and  should  govern  the 
finding  of  a  jury.  Keep  in  mind  what  is  here  said  in  regard  to  the  de- 
gree of  certainty  to  which  you  should  arrive  in  respect  to  the  exist- 
ence of  a  fact  in  controversy  in  order  to  warrant  a  finding  in  favor  of 
the  party  on  whom  the  burden  of  proof  rests,  and  the  explanation  of 
the  term  'preponderance  of  evidence,'  and  apply  the  same  to  each 
question  submitted."     ♦     *     * 

The  errors  which  appellant  claims  in  these  instructions  will  be  con- 
sidered in  their  order. 

1.  It  is  claimed  that  it  was  error  to  say  that  the  jury  must  be  sat- 
isfied by  the  preponderance  of  the  evidence,  to  a  reasonable  certainty, 
that  a  fact  existed  before  they  could  find  such  fact ;  and  it  is  said  that 
this  expression  means  practically  the  same  as  the  expression  "satis- 
fied beyond  a  reasonable  doubt."  The  expression  used  by  the  court 
was  criticised  in  Allen  v.  Murray,  87  Wis.  41,  57  N.  W.  979,  but  it  did 
not  become  necessary  to  pass  upon  it  in  that  case.  We  have  examined] 
the  question,  and  are  satisfied  that  the  instruction  is  not  erroneous.  \ 
In  the  case  of  Beery  v.  Railway  Co.,  73  Wis.  197,  40  N.  W.  687,  an 
instruction  that  the  jury  must  feel  "reasonably  certain"  of  a  fact 
on  which  plaintiff's  case  depended  was  held  correct;  and  it  was  said 
that  this  did  not  mean  that  the  proof  must  be  clear  and  most  satisfac- 
tory, but  only  that  "the  preponderance  of  the  evidence  must  convince 
their  judgment  of  the  truth  of  the  fact  found."  In  Gores  v.  Graff, 
77  Wis.  174,  46  N.  W.  48,  an  instruction  to  the  effect  that  there  need 
only  be  "a  fair  preponderance  of  the  evidence  tending  to  show  the 
existence  of  a  fact"  was  distinctly  disapproved;  and  it  was  held  that 
the  instruction  should  have  been  that,  "if  the  jury  were  satisfied  by  a 
preponderance  of  the  evidence  that  all  the  facts  essential  to  a  recov- 
ery were  proved,  they  should  find  for  the  plaintiff'." 

The  instruction  in  question  here  seems  to  be  entirely  justified  by  the 
doctrines  laid  down  in  these  two  cases.  It  is  very  pertinently  said  by 
Mr.  Justice  Lyon  in  the  last-named  case  that  "there  may  have  been  • 
a  preponderance  of  evidence  tending  to  prove  such  facts,  or  some  or 
all  of  them,  and  yet  the  evidence  be  quite  insufiicient  to  prove  those 
facts."  A  verdict  in  favor  of  the  party  who  has  the  burden  of  proof 
in  any  case  is  a  solemn  determination  that  certain  facts  exist.  Should 
such  a  determination  be  made  merely  because  the  evidence  upon  one 
side  is  a  trifle  weightier  than  that  upon  the  other,  when  the  evidence 
is  so  unsatisfactory  that  the  judgment  of  the  jury  is  not  satisfied,  nor 
the  reason  convinced  of  the  existence  of  the  facts  ?  We  think  not. 
The  expression  frequently  used  by  the  trial  courts  and  frequently  an- 
nounced by  appellate  courts  is  that  the  minds  of  the  jury  must  be  sat- 
isfied or  convinced  by  the  preponderance  of  the  evidence  of  the  ex- 
istence of  a  fact.    Whitney  v.  Clifford,  57  Wis.  156,  14  N.  W.  927. 

\\  hen  the  mind  is  satisfied  or  convinced  of  the  existence  of  a  fact, 
is  not  the  mind  reasonably  certain  of  the  fact?     It  seems  to  us  that 


38  THE  COURT  AND  THE  JURY  (Ch.  1 

this  question  must  be  answered  in  the  affirmative.  Expressions  may 
be  found  in  text-books  and  decisions  to  the  effect  that  a  mere  pre- 
ponderance of  the  evidence  is  all  that  is  required  in  civil  cases,  but  it 
will  be  found  that  this  principle  is  generally  laid  down  in  contradis- 
tinction with  the  rule  of  proof  in  criminal  cases.^^  Whitney  v.  Clif- 
ford, supra.  In  a  general  way  this  statement  of  the  rule  is  correct, 
but  that  does  not  make  the  amplification  of  the  rule  as  given  in  this 
case  incorrect.  Telford  v.  Frost,  76  Wis.  172,  44  N.  W.  835,  was  much 
relied  on  by  appellant,  but  examination  of  the  case  clearly  shows  tha,t 
the  question  here  raised  was  not  there  presented.  The  only  question 
there  presented  was  as  to  the  correctness  of  the  general  charge  that 
the  verdict  must  be  in  accord  with  the  greater  weight  of  evidence,  and 
no  request  was  made  to  charge  the  jury  more  specifically.  Upon  prin- 
ciple and  authority,  therefore,  we  hold  that  the  charge  of  the  court 
upon  this  subject,  though  expressed  more  strongly  and  emphatically 
than  is  usual  or  perhaps  advisable,  was  not  error.  *  *  * 
Judgment  afiirmed.^^ 


BARFIELD  v.  BRITT. 
(Supreme  Court  of  North  Carolina,  1854.     47  N.  C.  41,  62  Am.  Dec.  190.) 

The  declaration  was  for  words  spoken,  charging  the  plaintiff  with 
murder  by  secretly  poisoning  one  Jacob  Britt.  The  v/ords  were  proved 
within  time,  and  the  case  turned  upon  the  plea. of  justification.  The 
defendant  offered  the  dying  declarations  of  Jacob  Britt,  charging  the 
plaintiff  with  the  crime  imputed  to  him  by  the  words  of  the  defendant, 
which  were  objected  to  by  the  plaintiff's  counsel,  but  admitted  by 
the  Court.     For  this  the  plaintiff  excepted. 

The  plaintiff's  counsel  asked  the  Court  to  instruct  the  jury  that  to 
establish  the  plea  of  justification,  the  jury  should  have  the  same  co- 
gency of  proof  as  if  the  plaintiff  were  on  trial  for  his  life  under  the 
criminal  charge  of  murder.     This,  the  Court,  however,  refused;    and 

31  At  an  early  period  a  greater  degree  of  certainty  appears  to  liave  been 
required  in  some  criminal  cases  than  in  civil  cases  generally.  In  Regina  v. 
Muscot,  10  Modern,  192  (1714),  Parker,  Chief  Justice,  in  summing  up  the 
evidence,  said,  inter  alia:  "There  is  this  difference  between  a  prosecution 
for  perjury  and  a  hare  contest  about  property,  that  in  the  latter  case  the 
matter  stands  indifferent,  and  therefore  a  credible  and  probable  witness  shall 
turn  the  scale  in  favour  of  either  party;  but  in  the  former,  presumption  is 
ever  to  be  made  in  favour  of  innocence,  and  the  oath  of  the  party  will  have 
a  regard  paid  to  it,  until  disproved.  Therefore  to  convict  a  man  of  per- 
jury a  probable,  a  credible  witness  is  not  enough ;  but  it  must  be  a  strong 
and  clear  evidence,  and  more  numerous  than  the  evidence  given  for  the  de- 
fendant; for  else  there  is  only  oath  against  oath." 

Somewhat  later  the  rule  requiring  the  jury  to  be  satisfied  beyond  a  rea- 
sonable doubt  in  order  to  convict  came  to  be  applied  to  all  strictly  criminal 
prosecutions. 

8  2  See,  also,  Haskins  v.  Hasklns,  9  Gray   (Mass.)  390  (1857). 


Sec.  1)  THE  BURDEN   OP  PROOF  39 

instructed  the  jury  that  a  preponderance  of  evidence,  as  in  a  civil  case, 
was  all  that  was  necessary.    For  this,  plaintiff  further  excepted. 

Verdict  for  defendant.    Judgment  and  appeal. 

Battle,  J.^^  Two  questions  are  presented  by  the  bill  of  exceptions : 
First.  Whether  in  the  issues  joined,  upon  the  plea  of  justification, 
ffie  dying  declarations  of  Jacob  Britt  could  be  given  in  evidence  by 
the  defendant,  to  prove  the  truth  of  the  words  for  which  the  action 
was  brought?  Secondly.  Whether  his  Honor  was  right  in  refusing  to 
instruct  the  jury  that  the  defendant  must  sustain  his  plea  by  the  same 
cogency  of  proof  as  would  be  required  against  the  plaintiff,  were  he 
on  trial  for  his  life,  under  a  charge  of  murder ;  but  on  the  contrary, 
saying  to  them  that  a  preponderance  of  evidence,  as  in  a  civil  case,  was 
all  that  was  necessary.     *     *     * 

As  the  plaintiff  is  entitled  to  a.  venire  de  novo  for  the  error  in  ad- 
mitting improper  testimony,  we  might  abstain  from  expressing  an 
opinion  upon  the  second  question ;  but  as  that  question  may  and  prob- 
ably will  be  raised  upon  the  next  trial,  we  will,  for  the  guidance 
of  the  parties,  state  now  the  view  which  we  have  taken  of  it.  We 
think  his  Honor  was  clearly  right  in  declining  to  give  the  instruction 
prayed  :  "that  to  sustain  the  plea  of  justification,  it  was  necessary  that 
the  jury  should  have  the  same  cogency  of  proof  they  would  require 
in  case  the  plaintiff  were  on  trial  for  his  life."  To  such  an  instruc- 
tion the  case  of  Kincade  v.  Bradshaw,  10  N.  C.  63,  was  directly  oppos- 
ed; it  being  held  there,  that  in  an  action  for  slander,  in  charging  a 
plaintiff  with  perjury,  the  defendant  is  not  bound,  in  support  of  his 
plea  of  justification,  to  produce  such  evidence  as  would  be  requisite  to 
convict  the  plaintiff,  if  he  were  on  trial  for  the  offence.  Taylor,  C.  J., 
in  delivering  the  opinion  of  the  court,  concludes  the  argument  thus : 
"It  cannot,  therefore,  be  a  correct  rule  that  a  jury  should  require  the 
same  strength  of  evidence  to  find  the  fact  controverted  in  a  civil  case, 
which  they  would  require  to  find  a  man  guilty  of  a  crime;  but  the 
crime  of  perjury  stands  upon  peculiar  grounds  and  requires  more  evi- 
dence to  produce  conviction  than  crimes  in  general :  one  witness  is  not 
sufficient,  because  then  there  would  be  only  one  oath  against  another. 
A  man  knowing  another  to  have  committed  perjury,  may  forbear  to 
prosecute  him,  for  the  very  reason  that  there  is  but  one  witness  by 
whom  the  crime  can  be  proved:  Shall  he,  therefore,  be  deprived  of  his 
justification  if  sued  in  an  action  of  slander,  although  he  might  be  fur- 
nished with  convincing  evidence  of  the  truth  of  the  words  ?  Both  rea- 
son and  authority  answer  in  the  negative."  The  authority  relied  on 
was  the  case  of  the  Queen  v.  Muscot,  10  Mod.  Rep.  192,  where  the 
Chief  Justice,  Parker,  expressed  himself  in  similar  terms. 

After  declining  to  give  the  instructions  prayed,  his  Honor  told  the 
jury  "that  a  preponderance  of  evidence,  as  in  a  civil  case,  was  all  that 
was  necessary."    If  the  very  language  used  by  his  Honor  is  correctly 

r' 
8  3  Part  of  oidnion  omitted. 


40  THE  COURT  AND  THE  JURY  (Ch.  1 

set  forth,  it  must  be  confessed  that  it  is  not  very  perspicuous,  and  on 
that  account  not  much  calculated  to  enlighten  the  minds  of  the  jury. 
The  case  on  trial  was  a  civil  case,  and  it  could  afford  the  jury  very 
little  assistance  to  make  it  the  standard  of  itself.  But  we  suppose  that 
the  words  "any  other"  were  omitted  by  mistake  in  making-  out  the 
transcript,  and  that  a  fair  interpretation  of  the  charge,  taken  in  con- 
nection with  the  refusal  to  give  that  which  was  asked,  is,  that  the 
party  upon  whom  lay  the  onus  proband i  must  produce  such  a  prepon- 
derance of  testimony  as  must  satisfy  the  jury  of  the  truth  of  his  al- 
legation, as  he  would  have  to  do  in  any  other  civil  case.  If  this  be  the 
meaning  of  the  charge,  it  is  directly  sustained  by  the  case  of  Neal  v. 
Fesperman,  decided  at  the  last  June  Terai,  46  N.  C.  446.  In  that  case 
the  Court  say  in  conclusion  "how  far  in  favorem  vitae  this  matter  is 
to  be  extended  so  as  to  require  the  court  in  a  capital  case,  when  the 
evidence  of  guilt  is  direct,  to  charge  the  jury  that  they  must  be  satis- 
fied beyond  a  rational  doubt,  that  is,  that  they  should  not  have  a  ration- 
al doubt  of  the  truth  of  the  evidence,  or  the  credibility  of  the  witness- 
es, we  are  not  now  to  say ;  suffice  it,  in  civil  cases,  if  the  jury  are  satis- 
fied from  the  evidence  that  an  allegation  is  true  in  fact,  it  is  their  duty 
so  to  find,  and  they  should  be  so  instructed."  It  is  unnecessary  to  pur- 
sue the  discussion  further,  as  we  think  we  have  said  enough  to  pre- 
vent the  recurrence  of  an  error,  if  any  was  committed  upon  the  second 
point  made  in  the  case.  For  the  error  committed  in  the  admission  of 
improper  testimony,  there  must  be  a  venire  de  novo. 
Per  Curiam.     Venire  de  novo.^* 


HOLT  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1910.    218  U.  S.  245,  31  Sup.  Ct.  2,  54 

L.  Ed.  1021,  20  Ann.  Cas.  1138.) 

Mr.  Justice  HolmKS  ^®  delivered  the  opinion  of  the  court : 

The  plaintiff  in  error  was  indicted  in  the  circuit  court  for  murder, 

alleged  to  have  been  committed  "within  the  Fort  Worden  Military 

Reservation,  a  place  under  the  exclusive  jurisd'ction  of  the  United 

States."     There  was  a  trial  and  a  verdict  of  guilty,  without  capital 

84  When  the  commission  of  a  crime  was  involved  in  a  civil  case,  it  was 
formerly  thought  necessary  to  establish  it  with  the  same  degree  of  certain- 
ty as  required  in  a  criminal  prosecution.  Thurtell  v.  Beaumont,  1  Bing- 
ham, 339  (1823).  But  the  later  cases  arc  generally  in  accord  with  the  prin- 
cipal case.  Peoples  v.  Evening  News.  51  Mich.  11,  16  N.  W.  185,  G91  (1S83) : 
Edwards  v.  George  Knapp  &  Co.,  97  Mo.  4.32,  10  S.  W.  54  (1888);  Bell  v. 
McGinness,  40  Ohio  St.  204,  48  Am.  Rep.  G73  (1883).  For  a  class  of  civil  cases 
in  which  a  very  strong  showing  appears  to  be  required,  see  Bosvile  v.  At- 
torney General,  L.  R.  12  P.  D.  177  (1887). 

See  Foster  v.  Graff,  287  111.  559,  122  N.  E.  845  (1919),  suggesting  a  possible 
difference,  between  the  certainty  required  to  establish  the  commission  of  a 
crime  by  a  third  person  and  by  a  party  to  the  action. 

8  5  Part  of  opinion  omitted. 


Sec.  1)  THE   BURDEN   OF   PROOF  41 

punishment,  as  allowed  by  statute.  He  was  sentenced  to  imprisonment 
for  life,  and  thereupon  brought  this  writ  of  error.  168  Fed. 
J42      *     *     * 

The  remaining  exceptions  relate  to  the  charge.  One  was  to  a  re- 
fusal to  embody  an  instruction  requested  as  to  reasonable  doubt.  The 
court,  however,  gave  full  and  correct  instructions  on  the  matter,  and 
indeed,  rather  anxiously  repeated  and  impressed  upon  the  jury  the 
clearness  of  the  belief  they  must  entertain  in  order  to  convict.  See 
Dunbar  v.  United  States,  156  U.  S.  185,  199,  39  L.  Ed.  390,  395,  15 
Sup.  Ct.  325 ;  4  Wigmore,  Ev.  §  2497.  Another  exception  was  to  the 
refusal  to  give  an  instruction  that  "the  presumption  of  innocence  starts 
with  the  charge  at  the  beginning  of  the  trial,  and  goes  with  [the  ac- 
cused] until  the  determination  of  the  case.  This  presumption  of  in- 
nocence is  evidence  in  the  defendant's  favor,"  etc.  The  judge  said: 
"The  law  presumes  innocence  in  all  criminal  prosecutions.  We  begin 
with  a  legal  presumption  that  the  defendant,  although  accused,  is  an 
innocent  man.  Not  that  we  take  that  to  be  an  absolute  rule,  but  it  is 
the  principle  upon  which  prosecutions  must  be  conducted;  that  the 
evidence  must  overcome  the  legal  presumption  of  innocence.  And  in 
order  to  overcome  the  legal  presumption,  as  I  have  already  stated, 
the  evidence  must  be  clear  and  convincing,  and  sufficiently  strong  to 
convince  the  jury  beyond  a  reasonable  doubt  that  the  defendant  is 
guilty,"  with  more  to  the  same  effect.  This  was  correct,  and  avoided 
a  tendency  in  the  closing  sentence  quoted  from  the  request  to  mislead. 
Agnew  V.  United  States,  165  U.  S.  36,  51,  52,  41  L.  Ed.  624,  629,  630, 
17  Sup.  Ct.  235.    See  also  4  Wigmore,  Ev.  §  2511. 

After  the  jury  had  been  sent  out,  they  returned  and  asked  the  court 
what  constituted  a  reasonable  doubt.^^  The  court  replied :  ('"A  reason- 
able doubt  is  an  actual  doubt  that  you  are  conscious  of  after  going  over 

3G  In  Com.  V.  Webster,  5  Cush.  Olass.)  295,  52  Am.  Dec.  711,  (ISoO)  Chief 
Justice  Shaw  gave  the  following  detinition  which  has  figured  so  largely  ever 
since:  "Then,  what  is  reasonable  doubt?  It  is  a  term  often  used,  probably 
pretty  well  understood,  but  not  easily  defined.  It  is  not  mere  possible  doubt ; 
because  every  thing  relating  to  human  affairs,  and  depending  on  moral  evi- 
dence, is  open  to  some  possible  or  imaginary  doubt.  It  is  that  state  of  the 
case,  which,  after  the  entire  comparison  and  consideration  of  all  the  evidence, 
leaves  the  minds  of  jurors  in  that  condition  that  they  cannot  say  they  feel 
an  abiding  conviction,  to  a  moral  certainty,  of  the  truth  of  the  charge.  The 
burden  of  proof  is  upon  the  prosecutor.  All  the  presumptions  of  law  inde- 
pendent of  evidence  are  in  favor  of  innocence,  and  every  person  is  presumed 
to  be  innocent  until  lie  is  proved  guilty.  If  upon  such  proof  there  Is  reason- 
able doubt  remaining,  the  accused  is  entitled  to  the  benefit  of  it  by  an  acciuit- 
tal.  For  it  is  not  sufficient  to  establish  a  probability,  though  a  strong  one 
arising  from  the  doctrine  of  chances,  that  the  fact  charged  is  more  likely  to  be 
true  than  the  contrary ;  but  the  evidence  must  establish  the  truth  of  the  fact 
to  a  reasonable  and  moral  certainty,  a  certainty  that  convinces  and  directs 
the  understanding,  and  satisfies  the  reason  and  judgment,  of  those  who  are 
bound  to  act  conscientiously  upon  it.  This  we  take  to  be  proof  beyond  rea- 
sonable doubt;  because  if  tiie  law,  which  mostly  depends  upon  considerations 
of  a  moral  nature,  should  go  further  than  this,  and  require  absolute  certain- 
ty, it  would  exclude  circumstantial  evidence  altogether." 


42  THE  COURT  AND  THE  JURY  (Ch.  1 

in  your  minds  the  entire  case,  giving  consideration  to  all  the  testi- 
mony and  every  part  of  it.  If  you  then  feel  uncertain  and  not  fully 
convinced  that  the  defendant  is  guilty,  and  believe  that  you  are  acting 
in  a  reasonable  manner,  and  if  you  believe  that  a  reasonable  man  in 
any  matter  of  like  importance  would  hesitate  to  act  because  of  such  a 
doubt  as  you  are  conscious  of  having,  that  is  a  reasonable  doubt,  of 
which  the  defendant  is  entitled  to  have  the  benefit."  He  denied  the  no- 
tion that  any  mere  possibility  was  sufficient  ground  for  such  a  doubt, 
and  added  that,  in  the  performance  of  jury  service,  they  should  decide 
controversies  as  they  would  any  important  question  in  their  own  af- 
fairs. This  was  excepted  to  generally,  and  the  court  was  asked  to 
add  that  if  the  jury  found  one  fact  inconsistent  ^'^  with  the  guilt  of  the 
defendant,  they  should  acquit.  The  court  already  had  given  this  in- 
struction in  the  charge,  and  was  not  called  upon  to  repeat  it.  As 
against  a  general  exception,  the  instructions  given  were  correct.  Some 
other  details  in  the  trial  are  criticized,  but  we  have  dealt  with  all  that 
seem  to  us  to  deserve  mention,  and  find  no  sufficient  reason  why  the 
judgment  should  not  be  affirmed. 
,  Judgment  affirmed.^® 


II.  Apportionment  of  the  Burdens 
BERTY  V.  DORMER. 

(Court  of  King's  Bench,  1701.     12  Mod.  526.) 

Issue  directed  out  of  Chancery  was,  whether  land  assigned  for  pay- 
ment of  a  legacy  were  deficient  in  value;  and  issue  was  joined  upon 
the  deficiency,  the  one  alledging  that  it  was  deficient,  and  the  other  that 
it  was  not. 

Per  Curiam.  Though  averring  that  it  was  deficient  is  such  an  af- 
firmative as  implies  a  negative,  yet  it  is  such  an  affirmative  as  turns 
the  proof  on  those  that  plead  it.     If  he  had  joined  the  issue  that  the 

3  7  In  State  v.  Hawley,  63  Conn.  47,  27  Atl.  417  (1S93),  the  defense  relied  on 
was  that  the  homicide  had  been  committed  by  a  third  person,  Flora  Hawley. 
Carpenter,  J.,  in  disapproving  the  instructions  on  this  point,  said:  "It  seems 
to  us  that  the  evidence  tending  to  connect  Flora  Flawley  with  the  commis- 
sion of  the  crime  was  not  submitted  to  the  jury  just  as  it  ought  to  have  been. 
The  jury  may  have  understood  from  the  charge  that,  in  order  to  have  that 
evidence  avail  the  accused,  it  was  necessary  that  they  should  be  satisfied 
beyond  a  reasonable  doubt  that  she  was  guilty  of  the  offense;  whereas  the 
true  question  we  think  is  whether  there  is  such  evidence  tending  to  connect 
her  with  the  crime  as  will  raise  a  reasonable  doubt  whetber  John  Hawley 
was  guilty.  That,  and  not  wbother  Flora  Hawley  was  guilty,  was  the  ma- 
terial question  in  this  part  of  the  case  for  the  jury  to  determine." 

3  8  It  seems  that  in  a  criminal  case  the  court  may  direct  a  verdict  for  de- 
fendant on  the  ground  that  the  evidence  is  not  sufficient  to  establish  guilt 
beyond  a  reasonable  doubt,  though  it  might  have  been  sufficient  in  a  civil 
case.     People  v.  Gluck,  188  N.  Y.  167,  SO  N.  E.  1022  (1907). 


Sec.  1)  THE  BURDEN   OP  PROOF  ^^ 

lands  were  not  of  value,  and  the  other  had  averred  that  they  were, 
the  proof  then  had  lain  on  the  other  side.  If  one  plead  infra  Ktatem, 
which  is  no  more  than  that  he  is  not  of  age,  and  issue  is  thereupon,  he 
that  pleads  the  infra  aetatem  must  prove  it.^" 


DICKSON  et  al.  v.  EVANS. 
(Court  of  King's  Bench,  1794.     6  Term  R.  57.) 

This  was  an  action  upon,  a  promissory  note  of  the  defendant's  pay- 
able to  the  bankrupt.  The  defendant  gave  notice  of  set  off,  that  the 
bankrupt  before  and  at  the  time  of  his  bankruptcy  was  indebted  to 
him  to  a  greater  amount  upon  certain  cash  notes  issued  by  the  bank- 
rupt before  his  bankruptcy,  payable  to  bearer. 

At  the  trial  before  Rooke,  J.,  at  Monmouth,  the  defendant  produced 
such  notes  as  were  mentioned  in  his  set  off,  dated  prior  to  the  bank- 
ruptcy, but  did  not  prove  when  they  came  into  his  hands ;  on  which 
ground  it  was  contended  on  behalf  of  the  plaintiffs  that  the  set  off  was 
not  established,  it  being  incumbent  on  the  defendant  to  shew  that  his 
set  off  existed  at  the  time  of  the  bankruptcy,  for  that  no  debt  accru- 
ing to  him  subsequently  would  avail.  But  Mr.  Justice  Rooke,  being 
of  opinion  that  the  bearer  of  such  notes  was  not  called  upon  to  prove 
when  he  took  them,  that  prima  facie  they  must  be  taken  to  be  fairly 
obtained,  and  must  have  reference  to  the  time  of  the  date,  which  was 
before  the  bankruptcy,  and  that  if  they  had  got  to  the  hands  of  the 
defendant  subsequent  to  the  bankruptcy,  the  onus  probandi  lay  on 
the  assignees,  nonsuited  the  plaintiffs.  A  motion  for  a  new  trial  was 
made  in  Easter  term  last,  which  came  on  to  be  argued  in  Trinity  term 
following:  but  it  stood  over  for  further  consideration,  it  being  un- 
derstood that  there  was  a  similar  case  depending  in  the  Court  of  Ex- 
chequer. At  the  conclusion  of  the  argument  in  Trinity  term  last  Law- 
rence, J.,  obser\'ed,  that  if  the  notes  had  been  made  payable  to  the  de- 
fendant himself,  he  should  have  thought  it  reasonable  evidence  of  their 
having  come  to  his  hands  at  the  time  they  bore  date.  And  now  the  case 
was  spoken  to  again  by 

Erskine  and  Lewis,  who  shewed  cause  against  the  rule. 

Lord  Kenyon,  C.  ].*°  I  am  of  opinion  on  the  words  of  the  act  of 
parliament,  on  the  reason  of  the  thing,  and  on  the  authority  of  decided 
cases,  that  the  rule  should  be  made  absolute  for  setting  aside  the  non- 
suit. The  words  of  the  stat.  5  Geo.  2,  c.  30,  §  28,  are  express,  that  if 
it  shall  appear  to  the  commissioners  that  there  has  been  mutual  credit 
given  by  the  bankrupt,  or  mutual  debts  between  the  bankrupt  and  any 
other  person  at  any  time  before  the  bankruptcy,  the  commissioners 

8  9  Opinion  of  Holt,  C.  J.,  omitted. 
*o  Opinion  of  Grose,  J.,  omitted. 


44  THE  COURT  AND  THE  JURY  (Ch.  1 

shall  state  the  account  &c.  and  what  shall  appear  to  be  due  &c.  shall  be 
claimed  or  paid.  That  act  was  founded  on  good  sense ;  and  it  provides 
that  the  assignees  shall  not  recover  against  a  debtor  of  the  bankrupt 
what  was  due  to  the  bankrupt  on  one  side  of  the  account,  without  also 
taking  into  consideration  the  other  side  of  the  account,  and  seeing  on 
which  side  the  balance  lies.  That  is  the  justice  of  the  case.  But  it 
would  be  most  unjust  indeed  if  one  person,  who  happens  to  be  in- 
debted to  another  at  the  time  of  the  bankruptcy  of  the  latter,  were  per- 
mitted by  any  intrigue  between  himself  and  a  third  person  so  to  change 
his  own  situation  as  to  diminish  or  totally  destroy  the  debt  due  to  the 
bankrupt  by  an  act  ex  post  facto.  In  cases  of  this  sort  the  question 
must  be  considered  in  the  same  manner  as  if  it  had  arisen  at  the  time 
of  the  bankruptcy,  and  cannot  be  varied  by  any  change  of  situation  of 
one  of  the  parties.  It  is  said  however  that  the  rule  by  which  we  are 
to  proceed  in  a  Court  of  law  under  the  statutes  of  set  off  is  a  different 
rule  from  that  by  which  the  commissioners  proceed  under  the  statute 
5  Geo.  2,  c.  30:  but  it  must  be  remembered  that  that  act  proceeded 
on  the  law  of  the  case,  and  applied  the  same  rule  to  the  commission- 
ers of  bankrupt.  The  cases,  which  have  been  decided  on  the  statutes 
of  set  off,  are  uniform.  In  addition  to  the  cases  cited  there  is  that  of 
Lucas  v.  Marsh,  Barnes,  453,  4to.  edit.,  in  which  it  was  held  that  when 
an  indorsed  note  is  set  off  by  the  defendant,  it  must  be  proved  that  it 
was  indorsed  before  the  plea  was  pleaded.  The  whole  of  the  pres- 
ent case  is  resolvable  into  this  question,  on  whom  did  the  onus  prob- 
andi  lie?  That  being  settled,  every  thing  else  follows  of  course. 
Now  the  cases  of  set  off  are  understood  to  be  in  the  nature  of  cross  ac- 
tions ;  and  if  the  defendant,  instead  of  setting  off  these  notes,  had 
brought  his  cross  action  against  the  assignees,  he  must  have  proved 
every  thing  necessar}^  to  constitute  his  demand ;  and  the  time  when 
the  notes  were  indorsed  would  be  one  material  ingredient  in  that 
case;  then,  under  this  set  off  he  must  prove  the  same  things.  If  the 
commissioners  had  refused  to  allow  this  set  off,  and  the  defendant  had 
appHed  to  the  Lord  Chancellor  by  petition,  he  must  have  set  forth  in 
that  petition  that  the  notes  were  indorsed  to  him  prior  to  the  bank- 
ruptcy, and  he  must  also  have  proved  it.  Therefore  the  words  of 
the  statute  of  bankrupts,  the  statutes  of  set  off,  the  decisions  on  the 
different  statutes,  and  the  forms  of  proceeding,  all  lead  to  this  con- 
clusion, that  the  onus  probandi  lay  on  the  defendant,  who  wished  to 
avail  himself  of  the  debt  arising  from  the  possession  of  the  notes,  and 
consequently  that  the  nonsuit  must  be  set  aside. 

AsHHURST,  J.  Much  fraud  and  great  injustice  would  be  introduced 
if  any  other  rule  than  that  laid  down  by  Lord  Kenyon  were  to  pre- 
vail. It  is  a  general  rule  of  evidence  that  in  every  case  the  onus 
probandi  lies  on  the  person  who  wishes  to  support  his  case  by  a  par- 
^y  ticular  fact,  and  of  which  he  is  supposed  to  be  cognizant;  but  it  is 
said  in  this  case  that  it  was  incumbent  on  the  assignees  to  prove  tlic 


Sec.  1)  THE  BURDEN   OF  PROOF  45 

time  when  the  defendant  received  these  notes.  But  the  assignees 
could  have  no  means  of  knowing  that  fact,  whereas  it  must  have  been 
known  to  the.. defendant ;  and  as  the  latter  relied  upon  it  as  the  ground 
of  his  set  off,  and  did  not  prove  it,  the  assignees  were  entitled  to  re- 
cover. 

Per  Curiam.    Rule  absolute. 


WILSON  et  al.  v.  HODGES  et  al. 
(Court  of  King's  Bencb,  1802.     2  East,  312.) 

In  debt  on  recognizance  of  bail,  the  breach  assigned  was,  that  Mich- 
ell  the  principal  had  not  paid  the  damages,  nor  rendered  himself,  &c. 
according  to  the  form  and  effect  of  the  said  recognizance.  Plea; 
that  after  the  judgment,  &c.  and  before  the  suing  out  the  writs  of  scire 
facias,  and  before  the  return  of  the  writ  of  capias  ad  satisfacien- 
dum against  Michell  upon  the  judgment,  he  Michell  died:  concluding 
with  a  verification.  Replication;  that  after  the  giving  the  judgment, 
and  before  the  suing  out  of  the  said  writs  of  scire  facias,  or  either  of 
them,  the  plaintififs  sued  out  a  writ  of  capias  ad  satisfaciendum  against 
Michell,  returnable,  &c.  to  which  the  sheriff  returned  non  est  inventus : 
and  the  plaintiffs  further  say,  that  Michell,  at  the  said  return  of  the 
said  writ  of  capias  ad  satisfaciendum,  and  afterwards,  was  living, 
&c.  which  they  are  ready  to  verify.  Rejoinder;  that  Michell  was 
not  at  the  said  return  of  the  said  writ  of  ca.  sa.  living,  as  the  plaintiffs 
had  replied;   concluding  to  the  country:     on  which  issue  was  joined. 

At  the  trial  before  Le  Blanc,  J.  at  the  sittings  at  Guildhall,  the  only 
question  was.  Whether  the  issue  lay  on  the  defendants  to  prove  the 
death  of  Michell,  or  on  the  plaintiffs  to  prove  that  he  was  alive  at 
the  time  mentioned?  The  learned  Judge  thought  that  the  proof  of 
the  issue  lay  on  the  defendants,  who  averred  the  death  of  the  party, 
and  they  not  being  prepared  with  any  proof  of  the  fact,  the  verdict 
passed  for  the  plaintiffs  on  that  ground.  To  set  aside  which  Erskine 
obtained  a  rule  nisi  in  the  last  term,  on  the  ground  of  a  misdirection, 
as  well  as  on  afifidavit.    Gibbs  was  now  to  have  shewn  cause.     But 

Lord  Ellenborough,  C.  J.,  said,  there  was  no  doubt  but  that  the 
direction  of  the  learned  Judge  was  proper  in  point  of  law.  And  he 
referred  to  the  case  of  Throgmorton  v.  Walton  *^  where  it  was  de- 
cided, that  where  the  issue  is  upon  the  life  or  death  of  a  person  once 

*iThe  following  report  of  this  case  is  given  in  2  Rolle  461  (1625): 
"The  plaintiff  derived  his  title  as  heir  at  law  of  a  sister;    the  defendant 
proves  that  there  were  four  sisters.    And  the  question  was  who  should  prove 
the  sisters  Norton  alive ;    and  upon  this  they  appealed  to  the  Court. 

"Chamberlain  and  Dodrige,  Justices.  He  who  would  prove  them  dead ; 
for  if  it  is  shown  that  they  were  once  alive,  it  will  be  presumed  that  they 
are  alive  if  the  contrary  should  not  be  proved.  ("Si  montre  que  unfoits  in 
vie,  ils  seront  intend  in  vie,  si  le  contrarie  ne  soit  prove.")" 


46  THE  COURT  AND  THE  JURY-  CCh.  1 

shewn  to  be  living,  the  proof  of  the  fact  lies  on  the  party  who  asserts 
the  death ;  for  that  the  presumption  is,  that  the  party  continues  alive 
until  the  contrary  be  shewn. 

However,  as  the  defendants  swore  that  they  had  been  misled  by  an 
opinion  taken,  which  stated  that  the  issue  on  these  pleadings  lay  on  the 
plaintiffs ;  and  as  circumstances  were  deposed  to,  which  went  to  prove 
the  death  of  the  principal  as  stated ; 

The  Court  let  the  defendants  in  to  a  new  trial  on  payment  of  costs. 

Rule  absolute. 


THE  KING  V.  TURNER. 

(Court  of  King's  Bench,  1816.    5  Maule  &  S.  206.) 

Certiorari  to  review  a  conviction  of  the  defendant  by  two  justices 
on  a  charge  of  having  certain  game  in  his  possession,  not  being  a  per- 
son qualified,  etc.  After  setting  out  tlie  information,  the  order  of  the 
justices  recited:  "Whereupon  the  defendant  being  summoned  on  the 
10th  of  February,  in  the  56th  year  aforesaid,  &c.,  appeareth  before  us, 
the  said  J.  M.  and  G.  M.,  one  other  of  the  justices,  &c.,  and  having 
heard,  &c.,  pleads  not  guilty.  Neverthless,  on  the  said  10th  day  of 
'February,  at  &c.,  two  credible  witnesses,  to  wit,  T.  T.  and  W.  S.  upon 
their  oath,  affirm,  in  the  presence  of  the  said  J.  Turner,  that  within 
three  months  next  before  the  said  information,  to  wit,  on  the  said  5th 
of  February,  in  the  56th  year  aforesaid,  at  &c.,  the  said  J.  Turner 
being  a  carrier,  did  have  in  his  custody  and  possession,  in  his  waggon, 
at  the  parish  of  Send  and  Ripley,  in  the  county  aforesaid,  sixteen 
pheasants  and  five  hares,  the  same  not  being  sent  up  or  placed  in  the 
hands  of  said  J.  Turner,  by  any  person  or  persons  qualified  to  kill 
game,  contrary  to  the  form  of  the  statute,  &c.  Whereupon  the  said 
J,  Turner,  being  asked  what  he  hath  to  say  or  offer  in  his  defense, 
produceth  one  witness,  to  wit,  G.  T.,  who,  being  duly  sworn,  deposeth, 
in  the  presence  of  the  said  J.  Turner,  and  also  of  the  said  W.  Taylor, 
that  on  the  said  5th  day  of  February,  at  the  parish  of  The  Holy  Trin- 
ity, in  Guildford  aforesaid,  he  was  present  at,  and  did  aid  and  as- 
sist in  the  packing  and  loading  the  said  waggon  of  the  said  J.  Turner ; 
and  that  at  the  day  and  parish  last  aforesaid,  when  the  said  waggon 
of  the  said  J.  Turner  left  the  warehouse  of  the  said  J.  Turner,  in  the 
said  parish  last  aforesaid,  there  was  not  in  the  custody  and  possession 
of  the  said  J.  Turner,  in  his  said  waggon,  in  the  parish  last  aforesaid, 
any  such  quantity  of  game  as  is  above  laid  to  his  charge,  or  any  game 
whatever ;  and  forasmuch  as  upon  hearing  the  matters,  &c.,  it  appears 
to  us,  the  said  justices,  that  the  said  J.  Turner  is  guilty  of  the  prem- 
ises, it  is  therefore  adjudged  by  us  the  said  justices,  upon  the  testi- 
mony of  the  said  T.  T.  and  W.  S.,  that  the  said  J.  Turner,  on  the  said 
5th  day  of  February,  at  the  parish  of  Send  and  Ripley  aforesaid, 
within  three  months  next  before  the  said  information  was  made  before 


Sec.  1)  THE  BURDEN   OP   PROOr  ^'^ 

me  the  said  J.  M'.  by  the  said  W.  T.  as  aforesaid,  unlawfully  had  in 
his  custody  and  possession,  sixteen  pheasants  and  five  hares,  contrary 
to  the  form  of  the  statute,  &c."    *    *    * 

Secondly,  it  was  objected,  that  it  does  not  appear  that  any  evidence 
was  given  in  support  of  the  information,  negativing  the  qualifications 
mentioned  in  the  statute,  which  is  necessary,  in  order  to  found  the 
jurisdiction  of  the  justices ;  for  if  the  party  be  qualified  in  any  one 
respect,  the  justices  have  no  jurisdiction.  And  herein  a  proceeding  be- 
fore a  justice  differs  from  an  action.  It  seems,  therefore,  that  prima 
facie  evidence,  at  least,  ought  to  be  required;  though  it  must  be  ad- 
mitted, that  in  Rex  v.  Stone,  1  East,  639,  the  Court  were  divided  in 
opinion  upon  this  point.*^ 

Lord  EllEnborough,  C.  J.  The  question  is,  upon  whom  the  onus 
probandi  lies;  whether  it  lies  upon  the  person  who  affirms  a  qualifica- 
tion, to  prove  the  affirmative,  or  upon  the  informer,  who  denies  any 
qualification  to  prove  the  negative.  There  are,  I  think,  about  ten  dif- 
ferent heads  of  qualification  enumerated  in  the  statute  22  &  23  Car. 
2,  c.  25,  §  3,  to  which  the  proof  may  be  applied;  and,  according  to  the 
argument  of  to-day,  eveiy  person  who  lays  an  information  of  this 
sort  is  bound  to  give  satisfactory  evidence  before  the  magistrates  to 
negative  the  defendant's  qualification  upon  each  of  those  several 
heads.  The  argument  really  comes  to  this,  that  there  would  be  a  moral 
impossibility  of  ever  convicting  upon  such  an  information.  If  the 
informer  should  establish  the  negative  of  any  part  of  these  different 
qualifications,  that  would  be  insufficient,  because  it  would  be  said, 
non  liquet,  but  that  the  defendant  may  be  qualified  under  the  other. 
And  does  not,  then,  common  sense  shew,  that  the  burden  of  proof 
ought  to  be  cast  on  the  person,  who,  by  establishing  any  one  of  the 
qualifications,  will  be  well  defended?  Is  not  the  Statute  of  Anne  in 
cft'ect  a  prohibition  on  every  person  to  kill  game,  unless  he  brings 
himself  within  some  one  of  the  qualifications  allowed  by  law;  the 
proof  of  which  is  easy  on  the  one  side,  but  almost  impossible  on  the 
.other?  I  remember  the  decision  of  Rex  v.  Stone;  and  the  arguments 
of  the  learned  Judges,  who  held  the  necessity  of  giving  negative  proof, 
were  undoubtedly  urged  with  great  force ;  but  I  felt  at  the  time,  that 
if  they  were  right,  it  would,  in  most  cases,  be  impossible  to  convict  at 
all.  But  in  Spieres  v.  Parker,  1  T.  R.  144,  I  find  Lord  Manslield  lay- 
ing down  the  rule,  that  in  actions  upon  the  game  laws,  (and  I  see  no 
good  reason  why  the  rule  should  not  be  applied  to  informations  as  well 
as  actions)  the  plaintiff  must  negative  the  exceptions  in  the  enacting 
clause,  though  he  throw  the  burden  of  proof  on  the  other  side.  The 
same  was  said  by  Heath,  J.,  in  Jelfs  v.  Ballard,  1  B.  &  P.  468;  and 
such  I  believe  has  been  the  prevailing  opinion  of  the  profession,  and 
the  practice.  I  am,  therefore,  of  opinion,  that  this  conviction,  which 
specifies  negatively  in  the  information  the  several  qualifications  men- 

♦  2  Statement  coudensed  and  opinion  of  Bayley,  J.,  omitted. 


48  THE  COURT  AND  THE  JURY  (Ch.  1 

tioned  in  the  statute,  is  sufficient,  without  going  on  to  negative,  by  the 
evidence,  those  qualifications. 

HoLROYD,  J.  I  also  am  of  the  same  opinion.  It  is  a  general  rule, 
that  the  affirmative  is  to  be  proved,  and  not  the  negative,  of  any  fact 
which  is  stated,  unless  under  peculiar  circumstances,  where  the  gen- 
eral rule  does  not  apply.  Therefore  it  must  be  shewn,  that  this  is  a 
case  which  ought  to  form  an  exception  to  the  general  rule.  Now  all 
the  qualifications  mentioned  in  the  statute,  are  peculiarly  within  the 
knowledge  of  the  party  qualified.  If  he  be  entitled  to  any  such  estate, 
as  the  statute  requires,  he  may  prove  it  by  his  title  deeds,  or  by  re- 
ceipt of  the  rents  and  profits:  or  if  he  is  son  and  heir  apparent,  or 
servant  to  any  lord  or  lady  of  a  manor  appointed  to  kill  game,  it  will 
be  a  defence.  All  these  quahfications  are  peculiarly  within  the  knowl- 
edge of  the  party  himself,  whereas  the  prosecutor  has,  probably,  no 
means  whatever  of  proving  a  disqualification.  If  this  be  so,  instead 
of  saying  that  the  general  rule  of  law  ought  not  to  apply  to  this  case, 
it  seems  to  be  the  very  case  to  which  the  rule  ought  peculiarly  to  ap- 
ply. The  other  objections  do  not  appear  to  me  to  be  well  founded; 
and,  therefore,  I  think  this  conviction  ought  to  be  affirmed. 

Conviction  affirmed.*^ 


THE  KING  v.  INHABITANTS  OF  TWYNING. 
(Court  of  King's  Bench,  1819.    2  Barn.  &  Aid.  386.) 

Two  justices  removed  Mary  Burns,  the  wife  of  Francis  Burns,  an 
Irishman,  then  absent,  and  James  and  Ann  her  children,  from  the 
township  of  Manchester  to  the  parish  of  Twyning  in  the  county  of 
Gloucester.  The  sessions,  on  appeal,  confirmed  the  order,  subject  to 
the  opinion  of  the  Court  of  King's  Bench,  upon  the  following  case : 

About  seven  years  ago,  the  pauper  Mary  Burns  intermarried  with 
one  Richard  Winter,  with  whom  she  lived  a  few  months,  when  he 
enlisted  for  a  soldier,  went  abroad  on  foreign  service,  and  has  never- 
been  heard  of  since.  In  a  little  more  than  twelve  months  after  his  de- 
parture, the  pauper  Mary,  being  then  settled  in  Twyning,  intermarried 
with  the  said  Francis  Burns,  with  whom  she  has  cohabited  from  the 
time  of  such  marriage  to  the  present  period ;  the  children,  mentioned 
in  the  order  of  removal,  were  born  during  such  cohabitation,  and  are 
the  children  of  the  said  Francis  Burns.  One  of  them  was  born  in  the 
parish  of  Tewksbury,  and  the  other  in  a  parish  in  the  city  of  Worces- 
ter. On  the  part  of  the  appellants  it  was  contended,  that  the  respond- 
ents ought  further  to  have  proved  the  death  of  Richard  Winter,  prior 
to  the  marriage  with  Francis  Burns,  and  that  in  the  absence  of  such 
proof,  the  presumption  of  law  was,  that  he  was  then  alive,  and  that 

4  3  For  comments  on  this  class  of  cases,  see  Doe  v.  Whitehead,  8  Adol.  & 
Ellis.  f)71  (1838) :    Lisbon  v.  Lyman,  49  N.  H.  553  (1870). 


Sec.  1)  THE   BURDEN   OF   TROOF  4!) 

consequently  the  children  must  be  considered  as  illegitimate,  and  set- 
tled where  born,  and  that  as  to  them,  the  order  ought  to  be  set  aside. 

The  sessions  were  of  opinion,  that  there  was  sufficient  evidence  of 
the  non-access  of  Richard  Winter,  and  that  the  burden  of  proof  lay 
upon  the  appellants,  to  shew  that  he  was  alive  at  the  time  of  the  sec- 
ond marriage,  and  confirmed  the  order. 

BaylEy,  J.  *•*  *  *  *  The  facts  of  this  case  are,  that  there  is  a 
marriage  of  the  pauper  with  Francis  Burns,  which  is  prima  facie  valid, 
but  the  year  before  that  took  place,  she  was  the  wife  of  Richard  Win- 
ter, and  if  he  was  alive  at  the  time  of  the  second  marriage,  it  was  il- 
legal, and  she  was  guilty  of  bigamy.  But  are  we  to  presume  that  Win- 
ter was  then  alive?  If  the  pauper  had  been  indicted  for  bigamy,  it 
would  clearly  not  be  sufficient.  In  that  case  Winter  must  have  been 
proved  to  have  been  alive  at  the  time  of  the  second  marriage.  It  is 
contended  that  his  death  ought  to  have  been  proved,  but  the  answer 
is,  that  the  presumption  of  law  is,  that  he  was  not  alive  when  the  con- 
sequence of  his  being  so  is,  that  another  person  has  committed  a  crimi- 
nal act.  I  think,  therefore,  that  the  sessions  decided  right  in  holding 
the  second  marriage  to  have  been  valid,  unless  proof  had  been  given 
that  the  first  husband  was  alive  at  the  time. 

Best,  J.  I  am  also  of  opinion  that  the  sessions  have  decided  correct- 
ly in  this  case.  They  had  a  right  to  presume  that  the  pauper  had  not 
committed  a  crime,  and  if  so,  the  second  marriage  would  be  valid,  un- 
less proof  had  been  given  of  the  first  husband  being  then  alive.  The 
cases  cited  are  very  distinguishable,  they  only  decide  that  seven  years 
after  a  person  has  been  last  heard  of,  you  are  in  all  cases  to  presume 
his  death.  But  they  do  not  shew,  that  where  conflicting  presumptions 
exist,  you  may  not  presume  the  death  at  an  earlier  period.  Now, 
those  conflicting  presumptions  exist  here,  and  I  think  the  sessions 
were  warranted  in  presuming  the  death  of  the  first  husband,  on  the 
ground  that  they  would  not  presume  that  the  woman  had  committed 
bigamy.    I  think,  therefore,  that  their  order  was  right. 

Order  of  sessions  confirmed.** 


THE  KING  V.  INHABITANTS  OF  HARBORNE. 

(Court  of  King's  Bench,  1835.      2  Adol.  &  El.  540.) 

On  appeal  against  an  order  for  the  removal  of  Ann  Smith,  wife  of 
Henry  Smith,  from  the  parish  of  Harborne,  in  the  county  of  Stafford, 
to  the  parish  of  East  Haddon,  in  the  county  of  Northampton ;  the 
sessions  quashed  the  order,  subject  to  the  opinion  of  this  Court  upon 
the  following  case: 

**  Part  of  opinion  omitted. 

■*s  I'or  tbe  prosuuiption  in  favor  of  the  validity  of  the  second  marriage  see 
Rriuham  v.  lluiihson.  173  Cal.  448,  160  Pac.  548  (1916),  and  comments  in  30 
Harvard  Law  Review,  500. 

IIlNT.EV. 


50  THE  COURT  AND  THE  JURY  (Ch.  1 

The  respondents  proved  that  Henry  Smith,  being  settled  in  the  par- 
ish of  East  Haddon,  married  the  pauper  on  the  11th  of  April,  1831, 
and  had  since  deserted  her.  The  appellants  then  proved  that  the  said 
Henry  Smith  had  married  one  Elizabeth  Meadows  on  the  4th  of  Oc- 
tober, 1821 ;  and,  in  order  to  shew  that  she  was  alive  at  the  time  he 
married  the  pauper,  and  consequently  that  such  second  marriage  was 
invalid,  they  called  the  father  of  Elizabeth  Meadows,  who  proved  that 
his  daughter  and  Henry  Smith  continued  to  live  together  till  1825, 
when  he  left  her,  and  she  went  into  the  Northampton  hospital.  The 
witness  had  since  received  several  letters  from  her  dated  from  Van 
Diemen's  Land,  and  he  produced  a  letter  dated  Hobart  Town,  17th 
of  March,  1831,  which  he  proved  to  be  in  her  handwriting.  The  ses- 
sions received  the  letter  in  evidence,  and  quashed  the  order.  The 
question  for  the  opinion  of  this  Court  was,  whether,  upon  the  above 
evidence,  the  sessions  were  justified  in  presuming  that  Smith's  first 
wife  was  alive  at  the  time  of  his  marriage  with  the  pauper. 

Lord  Denman,  C.  J.*®  The  question  is,  whether  the  sessions  were 
justified  in  coming  to  the  conclusion  that  a  party  was  alive  on  the  11th 
of  April,  who  was  alive  on  the  17th  of  March  preceding?  If  she  was 
alive,  there  was  no  marriage,  on  the  11th  of  April;  and  if  there  was 
no  marriage,  there  was  no  settlement  in  East  Haddon.  It  seems  to 
me  that  the  evidence  was  proper,  and  the  conclusion  proper.  There 
was  no  contrary  evidence.  The  only  circumstance  raising  any  doubt  in 
my  mind,  is  the  doctrine  laid  down  by  Bayley,  J.,  in  Rex  v.  Twyning, 
2  B.  &  Aid.  388.  But,  in  that  case,  the  sessions  found  that  the  party 
was  dead ;  and  this  Court  merely  decided,  that  the  case  raised  no  pre- 
sumption upon  which  the  finding  of  the  sessions  could  be  disturbed. 
The  two  learned  Judges,  Bayley,  J.,  and  Best,  J.,  certainly  appear  to 
have  decided  the  case  upon  more  general  grounds :  the  principle,  how- 
ever, upon  which  they  seem  to  have  proceeded,  was  not  necessary  to 
that  decision.  I  must  take  this  opportunity  of  saying,  that  nothing  can 
be  more  absurd  than  the  notion,  that  there  is  to  be  any  rigid  presump- 
tion of  law  on  such  questions  of  fact,  without  reference  to  accompany- 
ing circumstances,  such,  for  instance,  as  the  age  or  health  of  the  par- 
ty. There  can  be  no  such  strict  presumption  of  law.  In  Doe  dem. 
Knight  V.  Nepean,  5  B.  &  Ad.  86,  the  question  arose  much  as  in  Rex 
V.  Twyning,  2  B.  &  Aid.  386.  The  claimant  was  not  barred,  if  the 
party  was  presumed  not  dead  till  the  expiration  of  the  seven  years 
from  the  last  intelligence.  The  learned  Judge  who  tried  the  cause  held 
that  there  was  a  legal  presumption  of  life  until  that  time,  and  directed 
a  verdict  for  the  plaintifif,  because,  if  there  was  a  legal  presumption, 
there  was  nothing  to  be  submitted  to  the  jury.  But  this  Court  held, 
that  no  legal  presumption  existed,  and  set  the  verdict  aside.  That  is 
quite  consistent  with  the  view  which  we  take  in  the  present  case; 
and  Rex  v.  Twyning,  2  B.  &  Aid.  386,  may  be  explained  in  the  same 

*«  Opinion  of  Littledale,  J.,  omitted. 


Sec.  1)  THE  BURDEN   OP  PROOF  51 

way.  I  am  aware  that,  in  this  latter  case,  Bayley,  J.,  founds  his  de- 
cision on  the  ground  of  contrary  presumptions :  but  I  think  that  the 
only  questions  in  such  cases  are,  what  evidence  is  admissible,  and 
what  inference  may  fairly  be  drawn  from  it.  It  may  be  said,  suppose 
a  party  were  shewn  to  be  alive  within  a  few  hours  of  the  second  mar- 
riage, is  there  no  presumption  then?  The  presumption  of  innocence 
cannot  shut  out  such  a  presumption  as  that  supposed.  I  think  no  one, 
under  such  circumstances,  could  presume  that  the  party  was  not  alive 
at  the  actual  time  of  the  second  marriage. 

Williams,  J.  I  am  entirely  of  the  same  opinion.  The  question 
which  the  case  states  for  us  is,  whether  the  sessions  were  justified  in 
presuming  as  they  did.  It  is  argued,  in  opposition  to  the  order  of  ses- 
sions, that  the  question  is,  upon  whom  does  the  onus  probandi  lie? 
and  that,  after  the  settlement  of  Smith,  and  his  marriage,  have  been 
proved  by  the  respondents,  the  onus  is  shifted  upon  the  appellants, 
who  are  then  to  shew  that  Smitli,  at  the  time  of  that  marriage,  was  a 
married  man.  But  still  this  question  remains :  is  there  any  particular 
rule  established  for  deciding  the  fact  of  the  life  of  a  party  on  princi- 
ples unlike  tliose  by  which  other  facts  are  decided?  When  we  are 
told  that  the  life  must  be  proved  by  express  evidence,  I  am  at  a  loss 
to  understand  what  is  meant.  There  w^as  express  evidence:  the 
party  was  alive  within  a  month.  To  be  sure,  death  might  have  inter- 
vened :  that  is  possibility  against  probability ;  for  it  is  a  question  of 
degree.  If  it  be  necessary  to  shew  an  impossibility  that  the  fact 
should  be  otherwise,  what  proof  can  be  given,  short  of  producing  the 
person?  If  the  evidence  given  was  not  enough  would  it  have  been 
enough  to  shew  that  the  party  w^as  alive  three  hours  before  the  time? 
The  sessions  seem  to  me  to  have  acted  quite  rightly.  In  Rex  v.  Twyn- 
ing,  2  B,  &  Aid.  386,  the  question  was,  whether  the  sessions  were  jus- 
tified in  acting  upon  the  presumption  there ;  and  I  have  no  doubt  that 
this  Court  was  right  in  holding  that  there  was  evidence  upon  which 
the  presumption  might  be  founded.  Here,  also,  the  sessions  founded 
their  opinion  upon  a  presumption  which  they  were  entitled  to  make. 

Order  of  sessions  affirmed. 


In  re  LEWES'  TRUST. 

(Court  of  Appeal  iu  Chancery,  1S71.     L.  R.  6  Ch.  App.  Cas.  356.) 

John  Lewes,  by  his  will,  gave  pecuniary  legacies  to  his  son  Thomas 
Lewes,  and  gave  the  residue  of  his  estate  to  Lieut.  Colonel  J.  Lewes. 
John  Lewes  died  on  the  20th  of  Februaiy,  1860.  Thomas  Lewes  left 
England  in  1858,  and  went  to  Australia,  whence  he  wrote  a  letter, 
dated  the  3d  of  January,  1859,  since  which  nothing  had  been  heard 
of  him.  The  legacies  were  paid  into  Court,  and  the  residuary  legatee 
petitioned  for  payment  on  the  ground  that,  in  the  absence  of  proof 
that  the  legatee  survived  the  testator,  the  legacy  must  be  taken  to 


52  THE  COURT  AND  THE  JURY  (Ch.  1 

have  lapsed.  The  Vice  Chancellor  Malins  made  an  order  for  payment 
accordingly,  considering  himself  bound  by  In  re  Phene's  Trusts,  Law 
Rep.  5  Ch.  139.  The  case  is  reported  Id.  11  Eq.  236,  where  the  facts 
are  more  fully  stated. 

The  next  of  kin  of  Thomas  Lewes,  one  of  whom  had  been  appointed 
to  represent  him,  appealed. 

Sir  W.  M.  James,  L.  J.  This  case  is  entirely  covered  by  In  re 
Phene's  Trusts.  The  Vice  Chancellor  says  that  he  is  bound  by  the 
rule  in  that  case,  that  a  legatee  must  establish  his  title  by  affirmative 
proof.  The  rule  of  law  laid  down  in  Doe  v.  Nepean  [5  Barn.  &  Ad. 
86,  and  2  Mees.  &  W.  894]*^  is,  that  where  any  person  has  to  prove  the 
fact  of  death,  he  proves  it  by  presumption  of  law  from  the  lapse  of 
time,  but  when  he  has  to  prove  the  time  of  death,  he  must  prove  it  af- 
firmatively for  there  is  no  presumption  that  the  death  took  place  at  any 
lime  in  that  seven  years.  If  anything  is  to  be  presumed  it  would  be,  ac- 
cording to  Doe  V.  Nepean,  that  the  death  took  place  on  the  first  day  of 
the  seven  years.  Death  is  presumed  from  the  person  not  being  heard 
of  for  seven  years,  and  whoever  has  to  make  out  the  case  of  death  at 
any  particular  time  must  prove  it  by  affirmative  evidence,  and  those 
who  claim  under  a  person  who  is  said  to  have  survived  a  particular 
period  must  prove  the  fact.  Here  the  onus  of  proof  is  on  those  who 
claim  under  the  legatee,  and  they  hav^  not  succeeded.  It  is  impossible 
to  suggest  any  principle  of  common  law  or  common  sense  by  which  it 
can  make  any  difference  whether  the  residuary  legatee  or  the  next  of 
kin  are  the  claimants. 

Sir  G.  Me;i.i,ish,  L.  J.  I  am  of  the  same  opinion.  If  at  the  end  of 
seven  years  a  person  has  not  been  heard  of,  the  presumption  is  that 
he  is  dead,  but  there  is  no  presumption  as  to  when,  during  the  seven 
years  he  died.  The  person  upon  whom  it  rests  to  prove  the  affirma- 
tive, either  that  the  legatee  was  alive  or  that  he  was  dead  at  a  particu- 
lar period,  must  establish  the  proposition  by  distinct  evidence,  and  not 
by  showing  merely  that  he  was  alive  at  the  beginning  of  the  period. 
I  do  not  think  it  signifies  whether  the  petition  is  presented  by  the 
residuary  legatee  or  by  the  representatives  of  the  particular  legatee. 
It  would  be  absurd  to  make  the  determination  of  the  question  depend 
upon  that,  as  the  -executor  might  then  have  to  keep  the  legacy  forever. 
The  question  is  upon  whom  the  onus  really  lies.  The  representatives 
of  the  legatee  have  to  make  out  that  the  legatee  was  alive  at  the  death 

47  In  Doe  V.  Jesson,  G  East,  80  (1805),  Lord  EUenborough  directed  a  jury 
tl\at  there  was  fair  ground  to  presume  death  after  seven  years  absence,  un- 
heard of,  etc.  In  Doe  v.  Nepean.  5  Barn.  &  Ad.  86  (1833),  the  matter  wa.s 
treated  in  much  the  same  way,  viz.,  that  such  facts  furnished  evidence  frou) 
which  a  jury  might  fairly  find  that  death  had  taken  place.  When  the  case 
reached  the  Exchequer  Chamber,  2  Mees.  &  W.  894  (1S37),  the  facts  were 
treated  as  raising  a  legal  presumption.  That  the  rule  does  not  apply  where 
the  absent  person  would  not  naturally  communicate  with  his  former  friendsi 
or  family,  Watson  v.  England,  14  Simmons,  28  (1844).  But  see  Mutual  Ben. 
Life  Ins.  Co.  v.  Martin,  108  Ky.  11,  55  S.  W.  G94  (1900),  where  the  insured 
was  a  fugitive  from  justice. 


Sec.  1)  THE   BURDEN   OF   PROOF  53 

of  the  testator,  for  the  residuary  legatee  can  say  that  he  is  entitled  to 
everything  except  what  is  proved  not  to  come  to  him.  The  rule  is 
now  clearly  established  on  a  right  basis,  and  the  appeal  must  be  dis- 
missed with  costs.*' 


DUKE  OF  NEWCASTLE  v.  HUNDRED  OF  BROXTOWE. 

(Court  of  King's  Bench,  1832.     4  Barn.  &  Adol.  27.3.) 

This  was  an  action  on  the  statute  7  &  8  G.  4,  c.  31,  to  recover  dam- 
ages for  felonious  demolition  in  part  of  Nottingham  Castle,  by  persons 
unlawfully,  riotously,  and  tumultuously  assembled.  Plea,  the  general 
issue.  At  the  trial  before  Vaughan,  B.,  at  the  Summer  assizes  for  Not- 
tingham, two  questions  were  made :  first,  whether  Nottingham  Castle 
was  within  the  hundred  of  Broxtowe;  and,  secondly,  assuming  it  to 
be  so,  on  what  principle  the  compensation  given  by  the  statute  was 
tp  be  calculated. 

1  Upon  the  first  point,  the  plaintiff  gave  in  evidence  letters-patent  of 
the  8  Jac.  1.  whereby  that  king  granted  to  E.  Ferrers  and  F.  Phelps, 
inter  alia,  the  dovehouse  close,  the  brewhouse,  and  the  site,  ground, 
and  foundation  of  the  castle  mills,  described  as  theretofore  being  part 
of  the  possessions  of  the  castle  of  Nottingham ;  secondly,  a  grant  of 
the  18th  of  February,  20  Jac.  1,  whereby  that  king  granted  to  Francis 
Earl  of  Rutland,  inter  alia,  the  cistle  of  Nottingham,  and  the  site, 
circuit,  ambit,  and  precinct  thereof,  and  the  close  called  Dove-cott 
Close  in  Nottingham  Park,  and  a  meadow  called  King's  Meadow,  ly- 
ing in  or  near  the  liberties  or  precincts  of  the  town  of  Nottingham ; 
all  which  were  described  in  the  grant  as  parcel  of  the  lands  and  pos- 
sessions belonging  to  the  king  in  right  of  his  crown  of  England.  The 
plaintiff  then  put  in  a  series  of  documents,  among  which  were  the 
following: — Entries  in  a  book  of  orders  made  at  the  quarter  sessions 
in  April  and  October  1654,  and  January  and  April  1655:  in  these 
it  was  stated,  that  the  castle  and  brewhouse  were  in  the  hundred  of 
Broxtowe,  and  the  inhabitants  of  the  hundred  were  thereby  ordered 
to  maintain  certain  poor  people  living  under  the  castle  and  at  the 
brewhouse,  who  had  been  previously  relieved  out  of  the  general  coun- 
ts For  a  collection  of  American  cases  on  this  point,  see  Butler  v.  Order  of 
Foresters,  2G  L.  R.  A.  (N.  S.)  293  (1909),  annotated;  White  v.  Brotherhood 
of  Locomotive  Firemen,  165  Wis.  418,  162  N.  W.  441   (1917). 

That  there  is  no  presumption  that  the  absent  person  died  unmarried  or 
without  issue,  see  Emerson  v.  White,  29  N.  H.  482  (1854),  where  a  number  of 
the  cases  are  reviewed. 

For  a  peculiar  treatment  of  a  presumption  against  suicide  in  an  action  on 
an  accident  policy,  so  as  to  place  the  burden  on  the  insurer  of  establishing 
the  negative,  that  death  was  not  accidental,  see  Reynolds  v.  Marvland  Cas- 
ualty Co.,  274  Mo.  83,  201  S.  W.  1128  (1918).  Compare  the  dissenting  opinion 
of  Faris,  J.,  in  that  case. 

See  McGowin  v.  Menken,  223  N.  Y.  509,  119  N.  E.  877  (1918),  for  the  bur- 
den oC  proof  of  survivorship  in  an  action  on  a  life  insurance  policy,  where 
the  insured  and  the  primary  beneficiary  perished  in  the  same  accident. 


54  THE  COURT  AND  THE  JURY  (Ch.  1 

ty  stock.  The  first  two  orders  gave  as  a  reason  for  their  having  been 
so  reheved,  that  the  brewhouse  and  yard  were  not  formerly  known  to 
be  of  any  particular  parish,  but  that  they  were  then  known  to  be  in  the 
wapentake  of  Broxtowe,  and  chargeable  therewith  to  the  relief  of  their 
own  poor.  Another  order  of  the  1st  of  January  1660  was  also  given 
in  evidence,  to  shew  that  on  occasion  of  a  robbery  of  A.  R.  in  Notting- 
ham Park,  the  justices,  with  the  consent  of  the  grand  jury,  &c.  to  save 
the  expense  of  an  action,  ordered  the  money  to  be  levied  on  the  hun- 
dred of  Broxtowe,  and  paid  to  the  person  robbed.  It  was  contended 
that  these  orders  were  not  admissible  as  judgments  of  the  Court  of 
quarter  sessions,  because  the  justices  had  no  authority  to  make  them; 
nor  as  evidence  of  reputation,  because  it  was  not  proved  that  the  jus- 
tices resided  in  the  county,  or  had  any  peculiar  knowledge  on  the  sub- 
ject-matter;  and,  further,  because  it  appeared  from  the  orders  them- 
selves, that  at  the  time  when  they  are  made,  it  had  been  matter  of  dis- 
pute whether  the  brewhouse  yard  was  within  the  hundred  or  not.  The 
learned  Judge  thought  they  were  admissible  as  evidence  of  reputation. 

The  learned  Judge  directed  the  jury,  first,  to  find  for  the  plaintiff  if 
they  thought  upon  the  evidence  that  the  castle  was  locally  situate  with- 
in the  hundred  of  Broxtowe ;  and  he  recapitulated  all  the  evidence, 
and  obsei"v^ed,  upon  the  charter  of  Hen.  6,  that  leaving  the  castle  in 
the  county  of  Nottingham,  when  the  town  was  made  a  county  of  it- 
self, did  not  shew  in  what  hundred  the  castle  originally  was,  and  that 
the  orders  of  sessions  and  the  land-tax  duplicates  were  entitled  to  great 
weight,  as  shewing  that,  in  point  of  reputation,  the  castle  had,  for 
two  centuries,  been  considered  part  of  the  hundred ;  and  he  added 
that,  when  things  for  a  great  length  of  time  had  gone  in  a  certain 
course,  it  was  reasonable  to  infer  that  they  had  always  done  so,  un- 
less the  evidence  to  the  contrary  were  certain.  The  question  of  dam- 
ages he  left  generally  to  the  jury.  .They  found  for  the  plaintiff,  dam- 
ages i21,000.     In  the  early  part  of  the  term, 

Wilde,  Serjt.,  moved  for  a  new  trial. ''^ 

Parke,  J.,  now  delivered  the  judgment  of  the  Court. 

In  this  case,  my  Brothers  Taunton  and  Patteson  and  myself,  before 
whom  the  motion  for  a  new  trial  was  made  (my  Lord  Chief  Justice 
not  having  at  that  time  taken  his  seat  on  the  Bench),  are  of  opinion 
that  no  rule  should  be  granted. 

The  first  objection  was,  that  certain  orders  of  sessions,  in  number 
five,  and  made  between  the  years  1654  and  1660,  each  inclusive,  were 
improperly  received  in  evidence. 

These  documents  were  admitted,  not  as  orders  upon  matters  over 
which  the  magistrates  had  jurisdiction,  but  as  evidence  of  reputation; 
and  in  that  point  of  view  we  are  of  opinion  that  they  were  admissible. 
Four  of  them  contain  an  express  statement,  the  fifth  an  implied  one, 
that  the  castle  (or  the  brewhouse,  or  the  park  of  Nottingham  which 

4  9  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  1)  THE   BURDEN   OF   PROOF  55 

belong  to  it)  is  within  the  wapentake  or  hundred  of  Broxtowe:  the 
statement  is  made  by  the  justices  of  the  peace,  assembled  in  sessions, 
who,  though  they  were  not  proved  to  be  resiants  in  the  county  or 
hundred,  must,  from  the  nature  and  character  of  their  offices  alone, 
be  presumed  to  have  sufficient  acquaintance  with  the  subject  to  which 
their  declarations  relate;  and  the  objection  cannot  prevail,  that  they 
were  made  r.fter  a  controversy  upon  that  subject  had  arisen,  because 
there  appears  to  have  been  no  dispute  upon  the  particular  question 
whether  the  castle  and  its  precincts  were  in  the  hundred  of  Broxtowe 
or  not.  These  statements,  therefore,  fall  within  the  established  rule 
as  to  the  admission  of  evidence  of  reputation. 

The  second  objection  was,  that  the  learned  Judge  did  not  present 
the  question  to  the  jury  in  the  manner  in  which  he  ought  to  have  done ; 
not  that  he  misinstructed  them  in  point  of  law,  but  that,  in  observing 
upon  the  facts,  he  ascribed  too  great  weight  to  the  evidence  of  mod- 
ern usage  and  reputation,  and  particularly  to  the  above-mentioned 
orders,  and  too  little  to  the  ancient  documents  produced  on  the  part  of 
the  defendants.  But  we  must  receive  with  very  great  caution  objec- 
tions of  this  nature ;  for  if  we  were  to  yield  to  them  on  all  occasions 
in  which  we  might  disagree  with  some  observation  made  on  particu- 
lar parts  of  the  evidence,  upon  which  it  is  the  province  of  the  jury  to 
decide,  we  should  seldom  have  any  case  which  involved  many  facts 
brought  to  a  termination.  It  is  only  in  those  cases  in  which  we  are 
satisfied  that  the  jury  have  been  led  to  a  v/rong  conclusion  that  we 
ought  to  interfere;  and  we  cannot  possibly  say  that  they  have  been 
induced  to  form  a  wrong  conclusion  in  this.  Without  meaning  to 
say  that  the  learned  Judge  was  wrong  in  attaching  great  weight  to 
these  particular  documents,  we  all  agree  tliat  the  general  scope  of  his 
observations  upon  the  evidence  was  perfectly  correct.  We  understood 
him  to  have  said,  in  substance,  that  as  by  the  usage  and  reputation  for 
nearly  two  centuries,  the  castle  and  its  precincts  had  been  considered 
as  being  within  the  hundred,  it  ought  to  be  inferred  that  they  were 
legally  so,  unless  the  ancient  documents  clearly  and  satisfactorily 
proving  that  they  were  not.  This  is  only  an  example  of  the  princi- 
ple which  is  applicable  to  all  rights  of  way  and  common,  to  tolls,  to 
moduses,  in  short,  to  all  prescriptive  and  ancient  rights,  customs,  ex- 
emptions, and  obligations :  in  all  which  long  usage  should  always  be 
referred,  if  possible,  to  a  legal  origin;  and  it  is  only  by  the  constant 
practical  application  of  this  principle  that  much  valuable  property  and 
many  important  rights  and  privileges  are  preserved. 

In  adapting  this  principle  to  the  present  case,  there  being  strong 
and  uniform  evidence  of  modern  usage  since  the  middle  of  the  seven- 
teenth centuiy,  the  only  question  is,  whether  the  older  documents 
clearly  show  that  this  usage  is  wrong,  and  that  the  castle  and  its  pre- 
cincts could  not  have  been  within  the  hundred  at  the  time  of  the  first 
institution  of  that  division?  Now  these  documents  prove,  that  from 
an  early  date,  viz.,  at  the  time  of  Domesday,  there  was  a  borough  of 


56  THE  COURT  AND  THE  JURY  (Cll.  1 

Nottingham:  that  the  borough  in  later  periods  had  a  jury  distinct 
from  that  of  the  hundred ;  one  of  them  in  the  3  Ed.  3  tends  to  shew 
that  the  castle  was  within  the  jurisdiction  of  that  jui-y;  and  the  char- 
ter of  Hen.  6  may  be  considered  as  demonstrating,  that  at  the  time  of 
the  erection  of  the  borough  into  a  county  of  itself  the  castle  did,  for 
some  purposes  at  least,  form  a  part  of  the  borough,  for  the  borough  is 
made  a  county  with  the  exception  of  the  castle.  But  admitting  this, 
what  reason  is  there,  why  the  castle,  though  being  in  the  borough  for 
some  purposes,  might  not  also  be  a  part  of  the  hundred?  for  as  a 
borough  may  include  a  part  of  two  counties  (the  city  of  Oxford  and 
borough  of  Tamworth  for  example),  why  may  it  not  comprise  part  of 
a  hundred,  or  part  of  two  or  more  hundreds?  and  we  may  not  also 
reconcile  the  exclusion  of  the  castle  from  the  new  county,  on  the  sup- 
position that  it  had  originally  belonged  to  the  hundred?  We  do  not 
think  that  any  of  these  documents  are  so  clearly  inconsistent  with 
the  long  usage  and  reputation  in  rnodern  times  as  to  prevent  a  jury 
from  drawing  the  usual  inference,  that  what  has  existed  so  long  has 
•  existed  from  the  earliest  period  necessary  to  give  it  validity.  *  *  * 
Rule  refused.®** 


DELANO  V.  BARTLETT. 

(Supreme  Judicial  Court  of  Massachusetts,  1850.     6  Cush.   364.) 

Assumpsit  on  a  promissory  note.  The  defense  relied  on  was  a  want 
of  consideration.  Verdict  for  defendant,  and  the  plaintiff  alleged  ex- 
ceptions.   The  facts  are  sufificiently  stated  in  the  opinion.®'- 

Fletcher,  J.  The  plaintiff  having  produced  the  note  on  which 
this  action  was  brought,  and  the  signatures  being  admitted,  rested  her 
case  on  that  evidence.  The  defence  relied  on  at  the  trial  was  a  want  of 
consideration.  To  maintain  this  defence,  the  defendants  offered  evi- 
dence, that  the  sum  received  by  Bartlett  of  the  plaintiff,  and  for  which 
the  note  was  given,  was  Bartlett's  own  money,  and  was  paid  to  him  by 
the  plaintiff,  supposing  him  entitled  to  it ;  and  that  the  note  was  taken 
for  it,  on  the  understanding  and  agreement,  that  if  on  the  settlement 
of  the  affairs  between  Bartlett  and  the  plaintiff's  .intestate,  it  should 
appear,  that  Bartlett  was  not  entitled  to  the  money,  the  plaintiff  might 
call  for  it  on  this  note ;  and  that  in  point  of  fact  the  whole  sum  for 
which  the  note  was  given  belonged  to  Bartlett,  and  was  less  than  he 
was  entitled  to,  and  that  no  part. of  it  belonged  to  the  plaintiff's  in- 

60  See  the  development  of  such  a  policy  into  a  rule  requiring  a  verdict  in 
accordance  with  certain  kinds  of  proof  unless  the  contrary  has  been  estab- 
lished.    Bryant  v.  Foot,  L.  R.  2  Q.  B.  161  (1867). 

So  a  rule  of  policy  seems  to  require  that  one  disputing  the  legitimacy  of  o 
person  born  of  a  married  woman  should  establish  the  negative  of  the  propo- 
Bition  beyond  a  reasonable  doubt.  Bosvile  v.  Attorney  General,  L.  R.  12  P 
D.  177   (1887). 

ni  Statement  condensed. 


Sec.  1)  THE   BURDEN   OF   PROOF  "^T 

testate.  All  the  evidence  was  submitted  lo  the  jury,  to  be  considered 
and  weighed  by  them,  in  settling  the  questions  of  fact  involved  in  the 
defence. 

The  plaintiff,  relying  on  the  note,  which,  upon  its  face,  imported  a 
consideration,  and  thus  making  out  a  prima  facie  case,  requested  the 
court  to  instruct  the  jury,  that  the  burden  of  proof  was  on  the  de- 
fendants, to  establish  the  want  of  consideration.  But  the  defendants 
having  produced  evidence  tending  to  disprove  or  overcome  this  prima 
facie  case,  on  the  part  of  the  plaintiff,  and  the  proof  on  both  sides 
being  applied  to  the  affirmative  or  negative  of  the  same  issue,  the 
plaintiff  being  the  party  whose  case  required  proof  of  a  consideration, 
the  presiding  judge  instructed  the  jury,  that  the  burden  of  proof  was 
throughout  on  the  plaintiff,  to  satisfy  them,  upon  the  whole  evidence 
in  the  case,  of  the  fact  of  a  consideration  for  the  note.  To  this  ruhng 
and  instruction  the  plaintiff's  counsel  excepted. 

The  rule  in  regard  to  the  burden  of  proof  is  laid  down  with  great 
distinctness  in  the  case  of  Powers  v.  Russell,  13  Pick.  69,  76.  The 
chief  justice  says:  \^t  was  stated  here,  that  the  plaintiff  had  made  ^^  . 

out  a  prima  facie  case,  and  therefore  that  the  burden  of  proof  was  u^-^-^-^^2<5C£^ 
shifted  and  placed  on  the  defendant.  In  a  certain  sense  this  is  true. 
When  the  party,  having  the  burden  of  proof,  establishes  a  prima  facie 
case,  and  no  proof  to  the  contrary  is  offered,  he  will  prevail.  There- 
fore, the  other  party,  if  he  would  avoid  the  effect  of  the  prima  facie 
case,  must  produce  evidence  of  equal  or  greater  weight,  to  balance  or 
control  it,  or  he  will  fail.  Still,  the  proof  upon  both  sides  applies 
to  the  affirmative  or  negative  of  one  and  the  same  issue  or  proposi- 
tion of  fact,  and  the  party,  whose  case  requires  the  proof  of  that 
fact,  has  all  along  the  burden  of  proof.  It  does  not  shift,  though 
the  weight  in  either  scale  may  at  times  preponderate.  But  when  the. 
party  having  the  burden  of  proof  gives  competent  and  prima  facie  evi- 
dence of  a  fact,  and  the  adverse  part)'',  instead  of  producing  proof 
which  would  go  to  negative  the  same  proposition  of  fact,  proposes  to 
show  another  and  a  distinct  proposition,  which  avoids  the  effect  of 
it,  then  the  burden  of  proof  shifts  and  rests  upon  the  party  propos- 
ing to  show  the  latter  fact?J 

Apply  this  rule  to  the  present  case,  and  it  is  quite  clear,  that  the  in- 
struction to  the  jury  was  entirely  correct.  It  was  incumbent  on  the 
plaintiff  to  prove  a  consideration  for  the  note,  which  was  the  founda- 
tion of  the  suit.  That  was  a  part  of  her  case,  and  the  burden  was  on 
her  to  establish  that  fact.  But  the  note  itself  was  prima  facie  evi- 
dence of  a  consideration ;  so  that,  by  producing  the  note,  the  plaintiff 
made  a  prima  facie  case.  That  evidence,  if  not  rebutted,  would  be 
sufficient  to  maintain  the  plaintiff's  case.  But  it  was  competent  for  tlie 
defendants  to  rebut  this  evidence  on  the  part  of  the  plaintiff,  and  thus 
to  avoid  the  prima  facie  case  made  by  her.  Accordingly  the  defend- 
ants did  offer  evidence  to  rebut  the  evidence  on  the  part  of  the  plain- 
tiff, and  to  show  that  there  was  no  consideration.    The  evidence  on  both 


58  THE  COURT  AND  THE  JURY  (Cll.  1 

sides  applied  to  the  affirmative  or  negative  of  the  same  issue  or  propo- 
sition of  fact,  a  consideration  for  the  note,  and  the  plaintiff's  case  re- 
quiring her  to  establish  that  fact,  the  burden  of  proof  was  all  along  on 
her  to  satisfy  the  jury,  upon  the  whole  evidence  in  the  case,  of  the 
fact  of  a  consideration  for  the  note.  The  rule,  as  laid  down  in  the 
case  of  Powers  v,  Russell,  has  been  fully  recognized  in  the  cases  of 
Parish  v.  Stone,  14  Pick.  198,  201,  25  Am.  Dec.  378;  Davis  v.  Jenney, 
1  Mete.  221,  224;  Sperry  v.  Wilcox,  1  Mete.  267;  Commonwealth  v. 
Dana,  2  Mete.  329,  340;  Brown  v.  King,  5  Mete.  173,  180;  Tourtellot 
V.  Rosebrook,  11  Mete.  460,  463.  In  Jennison  v.  Stafford,  1  Cush.  168, 
48  Am.  Dec.  594,  the  defence  was  not  an  original  want  of  consid- 
eration, but  a  failure  of  consideration ;  that  is,  to  avoid  the  prima  facie 
case  of  the  plaintiff  made  by  producing  the  note,  the  defendant  pro- 
posed to  show  another  and  distinct  proposition.  The  court  no  doubt 
correctly  ruled,  that  the  burden  of  proof  was  on  the  defendant,  to 
make  out  this  distinct  proposition  to  avoid  the  prima  facie  case  of  the 
plaintiff.  There  is  a  sentence  in  this  opinion,  which  may  be  misunder- 
stood. The  judge,  in  delivering  the  opinion,  says :  "Such  a  note  is 
presumed  to  be  founded  on  a  valid  and  sufficient  consideration,  and 
the  burden  of  proof  is  on  the  maker  to  establish  the  contrary."  This 
must  be  understood  to  mean,  that  the  burden  of  proof  is  on  the  maker 
to  rebut  the  prima  facie  case  made  by  producing  the  note,  otherwise 
the  prima  facie  evidence  will  be  conclusive. 
Exceptions  overruled.^^ 


BROWN  v.  KENDALL. 

(Supreme  Judicial  Court  of  Massacliusetts,  1850.     6  Cush.  292.) 

This  was  an  action  of  trespass  for  assault  and  battery,  originally 
commenced  against  George  K.  Kendall,  the  defendant,  who  died  pend- 
ing the  suit,  and  his  executrix  was  summoned  in. 

It  appeared  in  evidence,  on  the  trial,  which  was  before  Wells,  C.  J., 
in  the  court  of  common  pleas,  that  two  dogs,  belonging  to  the  plain- 
tiff and  the  defendant,  respectively,  were  fighting  in  the  presence  of 
their  masters ;  that  the  defendant  took  a  stick  about  four  feet  long,  and 
commenced  beating  the  dogs  in  order  to  separate  them;  that  the 
plaintiff  was  looking  on,  at  the  distance  of  about  a  rod,  and  that  he 
advanced  a  step  or  two  towards  the  dogs.  In  their  struggle,  the  dogs 
approached  the  place  where  the  plaintiff  was  standing.     The  defend- 

6  2  In  a  number  of  the  states  want  of  consideration  for  a  promissory  note 
has  become  an  affirmative  defense  to  be  pleaded  and  established  by  the  de- 
fendant. Pastene  v.  Pardini,  1.35  Cal.  4.31,  67  Pac.  681  (1902).  For  certain 
interesting  problems  on  the  burden  of  proof  on  the  question  of  holder  for 
value  wliere  the  defense  of  fraud  is  made,  see  Harvey  v.  Towers,  6  Exch. 
C5G  (1851);  Smith  v.  P.raine,  IG  Q.  B.  (N.  S.)  244  (1851);  Haniillon  v. 
Marks,  6.3  Mo.  167  (1876);  Leavitt  v.  Thurston,  38  Utah,  351,  113  Fic.  77 
(1911),  under  N.  I.  L. 


Sec.  1)  THE   BURDEN   OF   PROOF  59 

ant  retreated  backwards  from  before  the  dogs,  striking  them  as  he 
retreated;  and  as  he  approached  the  plaintiff,  with  his  back  towards 
him,  in  raising  his  stick  over  his  shoulder,  in  order  to  strike  the  dogs, 
he  accidentally  hit  the  plaintiff  in  the  eye,  inflicting  upon  him  a  severe 
injury. 

Whether  it  was  necessary  or  proper  for  the  defendant  to  inter- 
fere in  the  fight  between  the  dogs ;  whether  the  interference,  if  called 
for,  was  in  a  proper  manner,  and  what  degree  of  care  was  exercised 
by  each  party  on  the  occasion ;  were  the  subject  of  controversy  be- 
tween the  parties,  upon  all  the  evidence  in  the  case,  of  which  the  fore- 
going is  an  outline. 

The  defendant  requested  the  judge  to  instruct  the  jury,  that  "if 
both  the  plaintiff  and  defendant  at  the  time  of  the  blow  were  using 
ordinary  care,  or  if  at  that  time  the  defendant  was  using  ordinary 
care  and  the  plaintiff  was  not,  or  if  at  that  time  both  plaintiff  and 
defendant  were  not  using  ordinary  care,  then  the  plaintiff  could  not 
recover." 

The  defendant  further  requested  the  judge  to  instruct  the  jury,  that, 
"under  the  circumstances,  if  the  plaintiff  was  using  ordinary  care  and 
the  defendant  was  not,  the  plaintiff  could  not  recover,  and  that  the  bur- 
den of  proof  on  all  these  propositions  was  on  the  plaintiff." 

The  judge  declined  to  give  the  instructions,  as  above  requested,  but 
left  the  case  to  the  jury  under  the  following  instructions: 

"If  the  defendant,  in  beating  the  dogs,  was  doing  a  necessary  act, 
or  one  which  it  was  his  duty  under  the  circumstances  of  the  case  to 
do,  and  was  doing  it  in  a  proper  way ;  then  he  was  not  responsible  in 
this  action,  provided  he  was  using  ordinary  care  at  the  time  of  the 
blow.  If  it  was  not  a  necessary  act;  if  he  was  not  in  duty  bound  to 
attempt  to  part  the  dogs,  but  might  with  propriety  interfere  or  not  as 
he  chose;  the  defendant  was  responsible  for  the  consequences  of 
the  blow,  unless  it  appeared  that  he  was  in  the  exercise  of  extraor- 
dinary care,  so  that  the  accident  was  inevitable,  using  the  word  'in- 
evitable' not  in  a  strict  but  a  popular  sense," 

"If,  however,  the  plaintiff,  when  he  met  with  the  injury,  was  not 
in  the  exercise  of  ordinary  care,  he  cannot  recover,  and  this  rule  ap- 
plies, whether  the  interference  of  the  defendant  in  the  fight  of  the 
dogs  was  necessary  or  not.  If  the  jury  believe,  that  it  was  the  duty 
of  the  defendant  to  interfere,  then  the  burden  of  proving  negligence 
on  the  part  of  tlie  defendant,  and  ordinary  care  on  the  part  of  the 
plaintiff,  is  on  the  plaintiff.  If  the  jury  believe,  that  the  act  of  inter- 
ference in  the  fight  was  unnecessary,  then  the  burden  of  proving 
extraordinary  care  on  the  part  of  the  defendant,  or  want  of  ordinary 
care  on  the  part  of  the  plaintiff,  is  on  defendant." 

The  jury  under  these  instructions  returned  a  verdict  for  the  plaintiff; 
vhereupon  the  defendant  alleged  exceptions."* 

6  3  statement  condensed  and  part  of  opinion  omitted. 


t>0  THE  COURT  AND  THE  JURY  (Cll.  1 

Shaw,  C.  J^  *  *  *  The  facts  set  forth  in  the  bill  of  exceptions 
preclude  the  supposition,  that  the  blow,  inflicted  by  the  hand  of  the 
defendant  upon  the  person  of  the  plaintiff,  was  intentional.  The  whole 
case  ^  proceeds  on  the  assumption,  that  the  damage  sustained  by  the 
plaintiff,  from  the  stick  held  by  the  defendant,  was  inadvertent  and 
unintentional;  and  the  case  involves  the  question  how  far,  and  under 
what  qualifications,  the  party  by  whose  unconscious  act  the  dam- 
age was  done  is  responsible  for  it.  We  use  the  term  "unintentional" 
rather  than  "involuntary,"  because  in  some  of  the  cases,  it  is  stated, 
that  the  act  of  holding  and  using  a  weapon  or  instrument,  the  move- 
ment of  which  is  the  immediate  cause  of  hurt  to  another,  is  a  volun- 
tary act,  although  its  particular  effect  in  hitting  and  hurting  another 
is  not  within  the  purpose  or  intention  of  the  party  doing  the  act. 

We  think,  as  the  result  of  all  the  authorities,  the  rule  is  correctly 
stated  by  Mr.  Greenleaf,  that  the  plaintiff  must  come  prepared  with 
evidence  to  show  either  that  the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault;  for  if  the  injury  was  unavoidable,  and  the 
conduct  of  the  defendant  was  free  from  blame,  he  will  not  be  liable.  2 
Greenl.  Ev.  §§  85  to  92;  Wakeman  v.  Robinson,  1  Bing.  213.  If,  in 
the  prosecution  of  a  lawful  act,  a  casualty  purely  accidental  arises,  no 
action  can  be  supported  for  an  injury  arising,  therefrom.  Davis  v. 
Saunders,  2  Chit.  R.  639;  Com.  Dig.  Battery,  A.  (Day's  Ed.)  and 
notes ;  Vincent  v.  Stinehour,  7  Verm.  69.  In  applying  these  rules  to 
the  present  case,  we  can  perceive  no  reason  why  the  instructions  asked 
for  by  the  defendant  ought  not  to  have  been  given ;  to  this  effect,  that 
if  both  plaintiff  and  defendant  at  the  time  of  the  blow  were  using  ordi- 
nary care,  or  if  at  that  time  the  defendant  was  using  ordinary  care, 
and  the  plaintiff  was  not,  or  if  at  that  time,  both  the  plaintiff  and  de- 
fendant were  not  using  ordinary  care,  then  the  plaintiff  could  not 
recover.     *     *     * 

The  court  instructed  the  jury,  that  if  it  was  not  a  necessary  act, 
and  the  defendant  was  not  in  duty  bound  to  part  the  dogs,  but  might 
with  propriety  interfere  or  not  as  he  chose,  the  defendant  was  re- 
sponsible for  the  consequences  of  the  blow,  unless  it  appeared  that 
he  was  in  the  exercise  of  extraordinary  care,  so  that  the  accident  was 
inevitable,  using  the  word  not  in  a  strict  but  a  popular  sense.  This  is 
to  be  taken  in  connection  with  the  charge  afterwards  given,  that  if  the 
jury  believed,  that  the  act  of  interference  in  the  fight  was  unnecessary, 
(that  is,  as  before-  explained,  not  a  duty  incumbent  on  the  defendant,) 
then  the  burden  of  proving  extraordinary  care  on  the  part  of  the  de- 
fendant, or  want  of  ordinary  care  on  the  part  of  plaintiff,  was  on  the 
defendant. 

The  court  are  of  opinion  that  these  directions  were  not  conformable 
to  law.  If  the  act  of  hitting  the  plaintiff  wasoinintentional,  on  the  part 
of  the  defendant,  and  done  in  the  doing  of  a  lawful  act,  then  the  de- 


Sec.  1)  THE   BURDEN   OF   PROOF  01 

fendant  was  not  liable,  unless  it  was  done  in  the  want  of  exercise  of 
due  care,  adapted  to  the  exigency  of  the  case,  and  tlierefore  such  want 
of  due  care  became  part  of  the  plaintiff's  case,  and  the  burden  of  proof 
was  on  the  plaintiff  to  establish  it.  2  Greenl.  Ev.  §  85 ;  "^^  Powers 
V.  Russell,  13  Pick.  69,  76;  Tourtellot  v.  Rosebrook,  11  Mete. 
460." 

Perhaps  the  learned  judge,  by  the  use  of  the  term  "extraordinary 
care,"  in  the  above  charge,  explained  as  it  is  by  the  context,  may 
have  intended  nothing  more  than  that  increased  degree  of  care  and 
diligence,  which  the  exigency  of  particular  circumstances  might  re- 
quire, and  which  men  of  ordinary  care  and  prudence  would  use  under 
like  circumstances,  to  guard  against  danger.  If  such  was  the  meaning 
of  this  part  of  the  charge,  then  it  does  not  differ  from  our  views,  as 
above  explained.  But  we  are  of  opinion,  that  the  other  part  of  the 
charge,  that  the  burden  of  proof  was  on  the  defendant,  was  incorrect. 
Those  facts  which  are  essential  to  enable  the  plaintiff  to  recover,  he 
takes  the  burden  of  proving.  The  evidence  may  be  offered  by  the 
plaintiff  or  by  the  defendant ;  the  question  of  due  care,  or  want  of 
care,  may  be  essentially  connected  with  the  main  facts,  and  arise  from 
the  same  proof ;  but  the  efi'ect  of  the  rule,  as  to  the  burden  of  proof, 
is  this,  that  when  the  proof  is  all  in,  and  before  the  jury,  from  whatever 
side  it  comes,  and  whether  directly  proved,  or  inferred  from  circum- 
stances, if  it  appears  that  the  defendant  was  doing  a  lawful  act,  and 
unintentionally  hit  and  hurt  the  plaintiff,  then  unless  it  also  appears 
to  the  satisfaction  of  the  jury,  that  the  defendant  is  chargeable  with 

64  The  passage  in  question  is  as  follows:  "And  here  also  the  plaintiCC  must 
come  prepared  with  evidence  to  show,  eitlier  that  the  intention  was  unlawful, 
or  that  tlie  defendant  was  in  fault ;  for  if  the  injury  was  unavoidable,  and 
the  conduct  of  the  defendant  was  free  from  blame,  he  will  not  be  liable. 
Thus,  if  one  intend  to  do  a  lawful  act,  as  to  assist  a  drunken  man,  or  pre- 
vent him  from  going  without  help,  and  in  so  doing  a  hurt  ensue,  it  is  no  bat- 
tery. So,  if  a  horse  by  a  sudden  fright  runs  away  with  his  rider,  not  being 
accustomed  so  to  do,  and  runs  against  a  man;  or  if  a  soldier,  in  discharging 
his  musket  by  lawful  military  command,  unavoidably  hurts  another, — it  is  no 
battery ;  and  in  such  cases  the  defence  may  be  made  under  the  general  issue. 
But,  to  make  out  a  defence  under  this  plea,  it  must  be  shown  that  the  de- 
fendant was  free  from  any  blame,  and  that  the  accident  resulted  entirely 
from  a  superior  agency.  A  defence  which  admits  that  the  accident  resulted 
from  an  act  of  the  defendant  must  be  specially  pleaded." 

Compare  Loi-d  Ellenborough  in  Knapp  v.  Salsbury,  2  Campb.  500  (1810): 
"These  facts  ought  to  have  been  pleaded  specially.  The  only  thing  to  be 
tried  under  the  plea  of  not  guilty  is,  whether  the  defendant's  cart  struck  the 
plaintitf 's  chaise,  and  killed  his  horse.  That  it  did  is  now  admitted ;  and  the 
intention  of  defendant  is  immaterial.  This  is  an  action  of  trespass.  If 
what  happened  arose  from  inevitable  accident,  or  from  the  negligence  of  the 
plaintiff,  to  be  sure  the  defendant  is  not  liable ;  but  as  he  in  fact  did  run 
against  the  chaise  and  kill  the  horse,  he  committed  the  acts  stated  in  the 
declaration,  and  he  ought  to  have  put  on  the  record  any  justification  he 
may  have  had  for  doing  so.  The  plea  denying  these  acts  must  clearly  be 
found  against  him." 

56  The  case  of  Tourtellot  V.  Rosebrook,  11  Mete.  460  (1846),  was  an  action 
on  the  case  for  negligently  setting  out  a  fire. 


62  THE  COURT  AND  THE  JURY  (Ch.  1 

some  fault,  negligence,  carelessness,  or  want  of  prudence,  the  plaintiff 
fails  to  sustain  the  burden  of  proof,  and  is  not  entitled  to  recover. 
New  trial  ordered. 


BIRD  V.  GREAT  NORTHERN  RY.  CO. 

(Court  of  the  Excliequer,  1858.     28  Law  J.  Exch.  3.) 

This  was  an  action  for  an  injury  alleged  to  have  arisen  from  negli- 
gence by  a  railway  company  in  the  care  and  management  of  their 
railway. 

Plea — Not  guilty. 

At  the  trial,  before  Pollock,  C.  B.,  at  the  London  Sittings  after  last 
term,  it  appeared  that  the  engine  on  the  occasion  in  question  had  sud- 
denly gone  off  the  line,  at  a  spot  to  which  the  process  of  "fishing"  the 
rails,  which  was  being  carried  on  above  and  below  that  spot,  had  not 
been  extended.  It  was  admitted  that  this  process  was  an  improvement, 
but  it  also  appeared  that  it  had  been  only  of  late  introduced,  and  that 
in  a  great  portion  of  the  railways  it  had  not  been  carried  out.  There 
was  a  great  deal  of  evidence  on  both  sides  as  to  negligence ;  the  Lord 
Chief  Baron  left  the  evidence  to  the  jury,  who  found  "for  the  defend- 
ants, because  there  was  not  sufficient  evidence  as  to  the  cause  of  the 
accident." 

Edwin  Tames  now  moved  for  a  new  trial,  on  the  ground  of  misdirec- 
tion, in  that  the  jury  were  not  told  that  there  was  a  prima  facie  case 
of  negligence ;  and  that  if  it  was  not  satisfactorily  answered  by  the 
defendants,  the  verdict  should  be  for  the  plaintiff.  The  occurrence 
of  the  injury  itself  is  prima  facie  proof  of  negligence.  Carpue  v.  The 
London  and  Brighton  Railway  Company,  52  B.  747;  s.  c.  13  Law  J, 
Rep.  (N.  S.)  I.  B.  133. 

[Pollock,  C.  B.  That  depends  on  the  nature  of  the  accident;  as, 
for  instance,  if  it  arises  from  a  collision  of  different  trains  on  the  same 
line,  then  it  may  be  so.  Here  it  was  otherwise;  the  accident  was  of 
a  nature  consistent  with  the  absence  of  negligence.  Watson,  B.,  cited 
Skinner  v,  London,  Brighton  &  South  Coast  Railway  Company,  5 
Exch.  Rep.  787;  s.  c.  19  Law  J.  Rep.  (N.  S.)  Exch.  162.] 

At  all  events,  the  plaintiff  gave  as  much  evidence  of  negligence  as  a 
passenger  possibly  could,  who  necessarily  must  be  unable  to  ascertain 
the  exact  cause  of  an  accident;  and  the  railway  being  entirely  under 
the  control  of  the  company's  servants,  the  onus  probandi  was  then 
upon  the  defendants;  so  that  if  they  failed  satisfactorily  to  shew  that 
there  was  no  negligence,  the  plaintiff  was  entitled  to  the  verdict. 

[Pollock,  C.  B.  It  was  for  the  plaintiff  to  prove  negligence;  the 
defendants'  undertaking  was  not  to  carry  safely  but  to  carry  with 
reasonable  care.  They  are  not,  as  carriers  of  goods,  insurers.  There- 
fore, the  burthen  of  proof  was  on  the  plaintiff.] 

Per  Curiam.     The  whole  question  was  left  to  the  jury,  and  the 


Sec.  1)  THE   BURDEN   OF   PROOF  "3 

meaning  of  their  finding  was,  that  they  could  not  find  for  the  plaintiff ; 
in  effect,  that  he  had  not  proved  that  the  accident  arose  from  negli- 
gence. It  is  impossible  to  say  that  the  accident  itself,  even  if  prima 
facie  proof  of  negligence,  was  conclusive  proof  of  it.  And  if  not, 
then,  as  there  was  evidence  on  both  sides,  the  question  was  for  the 
jury;  and  their  finding  was  substantially  a  finding  for  tlie  defendants, 
on  the  ground  that  there  was  no  negligence. 
Rule  refused.^® 


MONTGOMERY  &  E.  RY.  CO.  v.  MALLETTE. 

(Supreme  Court  of  Alabama,  1890.    92  Ala.  209.  9  South.  363.) 

This  action  was  brought  by  the  appellee,  C.  P.  Mallette,  against 
the  appellant  railroad  corporation,  and  sought  to  recover  damages 
for  injuries  alleged  to  have  been  sustained  and  suft'ered  by  the  plain- 
tiff on  account  of  the  negligence  of  the  defendant's  servants  and  em- 
ployes. The  complaint  contained  three  counts.  Each  of  them  claimed 
damages  for  injuries  sustained  by  the  plaintiff,  while  a  passenger  upon 
the  railroad  of  defendant,  and  resulting  from  the  negligence  of  the 
defendant,  its  servants  or  employes.  The  defendant  pleaded  the  gen- 
eral issue;  and  a  judgment  was  rendered  for  the  plaintiff,  assessing 
his  damages  at  $4,000. 

The  following  facts  Were  undisputed,  as  gathered  from  the  bill  of 
exceptions :  That  the  plaintiff  purchased  a  ticket  at  Albany,  Georgia, 
took  the  train  running  from  that  point  to  Montgomery  over  the  Cen- 
tral Railroad  of  Georgia  to  Eufaula,  and  from  thence  over  defendant's 
road  to  Montgomery,  plaintiff's  destination;  that  while  he  was  on 
defendant's  train,  and  while  the  train  was  in  the  act  of  backing  to  the 
depot  in  Eufaula,  the  car  in  which  plaintiff  was  riding  turned 
over,  and  the  plaintiff  was  injured ;  that  the  direct  cause  of  the  acci- 
dent was,  that  while  train  was  backing  as  described,  the  sleeper,  which 
was  in  the  rear  of  the  train,  at  a  switch  way,  which  it  had  to  pass  in 
order  to  get  to  the  depot,  ran  off  the  track,  and  threw  the  car,  in  which 
plaintiff"  was  riding,  off  the  track,  and  it  turned  over. 

There  was  testimony  introduced  by  the  defendant  tending  to  show 
that  the  switch  and  all  of  the  fixtures  thereabouts  were  in  good  order; 
that  the  cars  were  all  right,  and  that  there  was  no  known  cause  for 
the  accident.  The  proof  showed  that  the  train  was  backing  very  slowly 
at  the  time  the  accident  occurred. 

In  his  general  charge  to  the  jury,  which  was  in  writing,  the  court 
%mong  other  things,  charged  them  as  follows : 

(1)  "If  you   are  reasonably  satisfied   from  the  evidence,  that   the 

B«  That  where  there  was  no  special  relation  between  the  parties,  a  prima 
facie  showing  of  negligence  did  not  impose  on  the  defendant  the  burden  of 
establishing  due  care,  see  Tourtellot  v.  Rosebrook,  11  Mete,  (^lass.)  400 
(1840). 


64  THE  COURT  AND  THE  JURY  (Ch.  1 

plaintiff  in  some  point  in  Georgia  received  and  paid  for  a  ticket  as  a 
passenger  on  the  defendant's  railroad  to  Montgomery,  and  was  such 
passenger  on  defendant's  train,  and  while  on  the  route  to  Montgom- 
ery, the  train  of  cars,  or  some  of  the  cars  thereof,  ran  off  the  track,  and 
plaintiff"  was  injured  thereby,  then  the  plaintiff  makes  out  a  prima  facie 
case  for  recovery,  and  he  is  entitled  to  recover,  unless  the  defendant 
reasonably  overcomes  this  prima  facie  right  of  recovery  by  the  evidence 
in  the  case." 

(2)  "In  order  to  avoid  the  liability  growing  out  of  a  prima  facie 
case  made  out  by  plaintiff",  the  defendant  must  reasonably  satisfy  the 
jury  that  it  exercised  that  degree  of  care  which  the  law  requires  of  it 
in  order  to  avoid  and  prevent  the  happening  of  accidents." 

(3)  "The  law  requires  the  highest  degree  of  care  and  diligence  and 
skill  by  those  engaged  in  the  carriage  of  passengers  by  railroads, 
known  to  careful,  diligent  and  skillful  persons  engaged  in  such  busi- 
ness." 

(4)  "If  you  find  from  the  evidence  that  plaintiff,  under  the  rule 
given,  has  made  out  a  prima  facie  case,  then  defendant,  in  order  to 
avoid  liability,  must  reasonably  satisfy  the  jury  that  it  used  that  de- 
gree of  care,  diligence  and  skill." 

There  was  judgment  for  the  plaintiff,  as  stated  above.  The  de- 
fendant prosecutes  this  appeal,  and  assigns  the  rulings  of  the  lower 
court  on  the  evidence,  and  upon  the  charges  given  and  refused,  as 
error."' 

McClellan,  j_  *  *  *  There  was  no  error  in  the  charges  of  the  . 
court  to  the  effect  that  "the  law  required  the  highest  degree  of  care 
and  diligence  and  skill,  by  those  engaged  in  the  carriage  of  passen- 
gers by  railroads,  known  to  careful,  diligent,  and  skillful  persons  en- 
gaged in  such  business."  This  is  the  universal  doctrine  of  the  courts 
and  text-writers.  Searle's  Adm'r  v.  Railway  Co.,  32  W.  Va.  370,  9 
S.  E.  248;  Railroad  Co.  v.  Snyder,  117  Ind.  435,  20  N.  E.  284,  3  L. 
R.  A.  434,  10  Am.  St.  Rep.  60;  notes  to  Frelsen  v.  Railway  Co.,  44 
Amer.  &  Eng.  R.  Cas.  319,  42  La.  Ann.  673,  7  South.  800;  Railroad  Co. 
V.  Ritter,  85  Ky.  368,  3  S.  W.  591 ;  Railway  Co.  v.  Daugherty  (Pa.) 
6  Amer.  &  Eng.  R.  Cas.  139;  Railroad  Co.  v.  Anderson,  94  Pa.  351,  39 
Am.  Rep.  787;  Railroad  Co.  v.  Rainbolt,  99  Ind.  551;  Railway  Co.  v. 
Higgs,  38  Kan.  375,  16  Pac.  667,  5  Am.  St.  Rep.  754;  Smith  v.  Rail- 
way Co.,  32  Minn.  1,  18  N.  W.  827,  50  Am.  Rep.  550;  Dodge  v.  Steam- 
Ship  Co.,  148  Mass.  207,  19  N.  E.  373,  2  L.  R.  A.  83,  12  Am.  St.  Rep. 
541 ;  Treadwell  v.  Whittier,  80  Cal.  575,  22  Pac.  266,  5  L.  R.  A.  498, 
13  Am.  St.  Rep.  175;  Hutch.  Carr.  §§  503,  799-801;  Thomp.  Carr. 
175  et  seq.;  2  Amer.  &  Eng.  Enc.  Law,  p.  745 ;  2  Wood,  Ry.  Law,  p. 
1095 ;  Railroad  Co.  v.  Jones,  83  Ala.  Zld,  3  South.  902 ;  Railway  Co. 
v.  Love,  91  Ala.  432,  8  South.  714,  24  Am.  St.  Rep.  927. 

67  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  1)  THE   BURDEN    OP   PROOF 


65 


The  authorities  present  equal  unanimity  to  the  proposition  that 
where  a  passenger  receives  injuries  from  the  lireakinq:  down  of  ihe 
carrier's  vehicle,  from  the  derailment  of  a  car,  from  collisions  or  the 
like, — occurrences  which  ordinarily  would  not  take  place  but  for  some 
negligence  on  the  part  of  the  carrier, — the  prima  facie  presumption  is  J 
that  the  injury  was  the  result  of  the  carrier's  negligence;  and  in  an 
action  therefor,  the  plaintiff  having  shown  that  he  was  a  passenger,  and 
that  he  was  injured  by  the  derailment,  for  instance,  of  the  car  in  which 
he  was  being  transported,  he  is,  upon  this  and  without  more,  entitled 
to  recover  the  damages  thereby  sustained,  unless  the  defendant,  in 
rebuttal  of  this  prima-  facie  presumption,  reasonably  satisfies  the  jury 
that  the  derailment  wa?  not  due  to  any  negligence,  and  could  not  have 
been  prevented  by  the  exercise  of  the  highest  degree  of  care,  skill,  and 
diligence  on  the  part  of  the  carrier.  Authorities  supra ;  Thomp.  Carr. 
181  et  seq.;  2  Wood,  Ry.  Law,  1096;  2  Amer.  &  Eng.  Enc.  Law,  768 
et  seq.;  Railroad  Co.  v.  Wightman,  29  Grat.  (Va.)  431,  26  Am.  Rep. 
384;  Railroad  Co.  v.  Sanders,  73  Ga.  513;  Railway  Co.  v.  Seybolt,  18 
Am.  &  Eng.  R.  Gas.  162;  Hipsley  v.  Railway  Co.,  27  Am.  &  Eng.  R. 
Gas.  287,  and  note ;  Railway  Co.  v.  Leonhardt,  66  Md.  70,  5  Atl.  346 ; 
Railroad  Go.  v.  Timmons,  51  Ark.  459,  11  S.  W.  690,  40  Am.  &  Eng. 
R.  Gas.  698,  and  notes ;  Stokes  v.  Saltonstall,  13  Pet.  181,  10  L.  Ed. 
115;  Railroad  Go.  v.  Pollard,  22  Wall.  341,  22  L.  Ed.  877. 

The  cases  of  Railway  Go.  v.  Hughes,  87  Ala.  610,  6  South.  413,  and 
Railroad  Co.  v.  Reese,  85  Ala.  497,  5  South.  283,  7  Am.  St.  Rep.  66,  to 
which  our  attention  has  been  invited  in  this  connection,  are  not  in  point. 
The  parties  injured,  and  who  were  plaintiffs  in  those  actions,  were 
not  passengers  of  the  defendant  companies,  and  the  principles  we  have 
been  considering  had  no  application  in  either  of  them.  The  trial  court 
correctly  stated  the  law  as  to  what  facts  made  out  a  prima  facie 
case  for  the  plaintiff,  entitling  him  to  recover,  and  as  to  the  measure 
of  proof  necessary  to  overturn  the  presumption  of  negligence  grow- 
ing out  of  and  resting  upon  the  facts  adduced  in  the  first  instance  by 
the  plaintiff.  The  special  objection  urged  to  the  charges  on  this  part 
of  the  case  is  that  they  authorized  a  verdict  for  the  plaintiff  if  the 
evidence,  aside  from  the  presumption,  was  in  equipoise  on  the  question 
of  defendant's  negligence.  We  understand  this  to  be  the  law;  oth- 
erwise, the  presumption  would  exert  no  influence  in  tlie  case.  If  there 
is  no  evidence  of  defendant's  negligence  except  the  fact  of  derail- 
ment, or,  which  is  the  same  thing  in  legal  effect,  the  evidence  as  to 
negligence  aside  from  the  derailment  is  equally  balanced,  there  is  noth- 
ing to  rebut  the  prima  facie  presumption  of  a  want  of  due  care,  skill, 
and  diligence  which  that  fact  imports,  and  upon  it  the  plaintiff  would 
be  entitled  to  a  verdict.  To  rebut  and  overturn  the  presumption,  the 
defendant  must  affirmatively  satisfy  the  jury  that  it  was  not  guilty  of 
negligence  as  charged  by  the  court;  and  this  in  no  sense  can  be  said 
HiNT.Ev. — 6 


66  THE  COURT  AND  THE  JURY  (Ch.  1 

to  be  done  where  the  evidence  is  in  such  equipoise  on  the  point  as  not 
to  impress  the  minds  of  the  jury  one  way  or  the  other.     *     *     * 
Reversed  (on  question  of  damages). 


STARRATT  et  al.  v.  MULLEN. 

(Supreme  Judicial  Court  of  Massacliusetts,  1SS9.    148  Mass.  570,  20  N.  E.  178, 

2  L.  R.  A.  697.) 

Contract,  on  an  account  annexed,  for  clothes  sold  and  delivered  and 
money  lent.  At  the  trial  in  the  superior  court,  before  Lathrop,  J-, 
the  defendant  admitted  that  the  clothes  were  delivered  by  tlie  plaintiffs 
to  him,  and  that  he  received  the  money,  but  contended,  and  offered 
evidence  tending  to  show,  that  he  lent  to  the  plaintiffs  four  thousand 
dollars,  for  which  they  gave  him  their  promissory  notes,  in  which 
nothing  was  said  about  interest,  and  that  when  he  lent  the  money  to 
the  plaintiffs  they  orally  agreed  that  for  the  use  of  the  money  they 
would  pay  him  the  sum  of  twenty  dollars  per  week  and  furnish  him 
with  his  clothes. 

The  plaintiffs  asked  the  judge  to  rule  that  the  agreement  would  be 
void,  not  being  in  writing,  and  also  that,  the  defendant  having  rehed 
upon  this  agreement,  the  burden  of  proof  was  upon  him  to  prove  it. 
The  judge  refused  so  to  rule,  but  ruled  that  the  burden  of  proof  was 
upon  the  plaintiffs  to  show  that  the  money  sued  for  was  lent,  and  that 
the  goods  sued  for  were  sold  by  the  plaintiffs  to  the  defendant. 

The  jury  found  for  the  defendant;  and  the  plaintiffs  alleged  ex- 
ceptions. 

Holmes,  J.  Whether  the  agreement  set  up  by  the  defendant  could 
have  been  enforced  or  not,  the  plaintiffs  were  at  liberty  to  perform  it 
if  they  saw  fit;  and,  if  they  furnished  the  clothes  in  pursuance  of  it, 
they  could  not  recover  in  this  action.  Marvin  v.  Mandell,  125  Mass. 
562.  The  contract  is  not  relied  on  as  an  executory  or  binding  under- 
taking, but  simply  to  show  that  the  plaintiff's  delivered  the  clothes 
upon  an  executed  consideration,  in  which  case,  as  in  that  of  a  gift, 
they  did  not  deliver  them  for  pay  to  be  received  thereafter. 

The  ruling  as  to  the  burden  of  proof  was  correct.  Phipps  v.  Mahon, 
141  Mass.  471,  5  N.  E.  835.  We  shall  not  repeat  the  reasoning  of 
that  decision,  with  which  we  remain  satisfied ;  but,  as  it  was  question- 
ed at  the  bar,  we  shall  add  a  few  words  to  what  was  said  then.  Un- 
doubtedly many  matters  which,  if  true,  would  show  that  the  plaintiff 
never  had  a  cause  of  action,  or  even  that  he  never  had  a  valid  contract, 
must  be  pleaded  and  proved  by  the  defendant;  for  instance,  infancy, 
coverture,  or,  probably,  illegality.  Where  the  line  should  be  drawn 
might  differ,  conceivably,  in  different  jurisdictions.  But  in  the  nar- 
rowest view  of  what  constitutes  the  plaintiff's  case,  if  he  declares  on 
a  special  contract,  he  must  prove  its  terms  as  alleged;    and  on  the 


Sec.  1)  THE  BURDEN  OF  PROOF  67 

same  principle,  if  he  declares  on  the  common  counts,  he  must  prove 
that  the  goods  or  services  were  furnished  for  a  reward  to  be  paid 
thereafter  in  money.  "The  plaintiff  is  bound  to  prove  such  a  sale  and 
delivery  as  will  raise  a  debt  payable  on  request."  Parke,  B.,  in  Cousins 
V.  Paddon,  2  Cromp.,  M.  &  R.  547,  5  Tyrw.  535,  543. 

Plence  it  was  settled  in  England  that  even  under  the  Hilary  rules, 
if  the  defense  was  that  the  goods,  although  delivered  to  the  defendant 
at  his  request,  were  delivered  as  a  gift,  or  under  a  contract  to  pay  in 
beer,  or  upon  a  consideration  previously  executed  by  the  defendant,  the 
proper  course  was  to  plead  the  general  issue,  and  that  a  special  plea 
would  be  bad  upon  special  demurrer.  Jones  v.  Nanney,  1  Mees.  &  W, 
333;  Grounsell  v.  Lamb,  Id.  352;  Morgan  v.  Pebrer,  3  Bing.  N.  C. 
457,  466,  467 ;  Wilson  v.  Story,  4  Jur.  463 ;  Collingbourne  v.  Mantell, 
5  Mees.  &  W.  289 ;  Gardner  v.  Alexander,  3  Dowl.  146.  See  Marvin 
v.  Mandell,  ubi  supra.  So  as  to  special  contracts.  Brind  v.  Dale,  2 
Mees.  &  W.  775;  Kemble  v.  Mills,  1  Man.  &  G.  757,  770;  Nash  v. 
Breese,  12  Law  J.  Exch.  305. 

The  cases  cited  answer  the  argument  that  payment  in  advance  would 
have  to  be  pleaded  and  proved  as  payment.  Payment  in  advance  would 
mean  that  the  goods  were  furnished  upon  an  executed  consideration, 
in  pursuance  of  an  antecedent  duty,  and  that  there  never  was  a  debt 
due  for  them  for  a  single  instant.  It  has  been  held  in  England  that, 
even  where  the  transaction  was  a  cash  sale,  and  the  payment  was  made 
at  the  same  moment  that  the  goods  were  furnished,  the  proper  plea  in 
debt  after  the  Hilary  rules  was  nunquam  indebitatus.  Bussey  v.  Bar- 
nett,  9  Mees.  &  W.  312;  Wood  v.  Bletcher,  4  Wkly.  Rep.  506,  27  Law 
T.  126 :  Dicken  v.  Neale,  1  Mees.  &  W.  553,  559.  See  Com.  v.  Devlin, 
141  Mass.  423,  431,  6  N.  E.  64.  We  do  not  refer  to  the  foregoing 
cases  as  deciding  the  question  of  burden  of  proof,  but  the  reasoning 
on  which  they  proceed,  coupled  with  the  rule  that  the  burden  of  proof 
never  shifts,  leads  inevitably  to  the  result  reached  in  Phipps  v.  Mahon. 

Proof  of  delivery  of  clothes  by  a  tailor  to  the  defendant  at  his  re- 
quest makes  out  a  prima  facie  case,  no  doubt,  because,  in  the  ordinary 
course  of  events,  a  suit  of  clothes  is  followed  by  a  bill.  But  this  is  only 
a  probability,  and,  if  the  probabihty  is  shaken,  it  is  for  the  plaintiffs 
to  show  that  the  language  or  the  circumstances  imported  an  assump- 
tion of  liability  by  the  defendant  to  pay  money. 

Exceptions  overruled. 


68  THE  COURT  AND  THE  JURY  (Cll.  1 


NEW  ORLEANS  &  N.  E.  R.  CO.  v.  HARRIS. 

(Supreme  Court  of  the  United  States,  1918.     247  U.  S.  367,  38  Sup.  Ct.  535, 

62  L.  Ed.  1167.) 

Mr,  Justice  McReynolds  ^^  delivered  the  opinion  of  the  Court. 

While  employed  in  interstate  commerce  by  plaintiff  in  error,  a  coni- 
mon  carrier  by  railroad  then  engaging  in  such  commerce,  Van  Harris 
a  brakeman  was  run  over  by  the  tender  of  an  engine  moving  in  the 
yard  at  New  Orleans,  Louisiana — February  5,  1914.  He  died  within 
a  few  minutes  without  regaining  consciousness.  Having  qualified  as 
administratrix,  his  mother  (defendant  in  error),  charging  negligence 
and  relying  upon  the  federal  Employers'  Liability  Act,  sued  ior  dam- 
ages in  a  state  court  for  Lauderdale  county,  Mississippi.  A  judgment 
in  her  favor  was  affirmed  by  the  Supreme  Court  without  opin- 
ion.    *     *     * 

Upon  request  of  the  administratrix,  the  following  instruction 
(among  others)  was  given  to  the  jury : 

"No.  1.  The  court  charges  the  jury  for  the  plaintiff  in  this  case  that 
under  the  rule  of  evidence  in  the  state  of  Mississippi  all  that  is  re- 
quired of  the  plaintiff  in  this  case  is  to  prove  that  injury  was  inflicted 
by  the  movement  of  the  defendant's  train  or  engine  and  then  the  law 
presumes  negligence  and  then  the  burden  of  proof  shifts  to  the  de- 
fendant to  prove  all  of  the  facts  and  circumstances  surrounding  the  in- 
jury and  from  those  facts  so  shown  exonerate  itself  from  all  negli- 
gence.   *    *    * " 

The  so-called  "Prima  Facie  Act"  of  Mississippi,  set  out  below?"* 
provides  that  in  actions  against  railroads  for  damages  proof  of  injury 
inflicted  by  an  engine  propelled  by  steam  shall  be  prima  facie  eviden'ce 
of  negligence.  Relying  upon  and  undertaking  to  apply  this  statute,  the 
trial  court  gave  the  quoted  instruction,  and  in  so  doing,  we  think, 
committed  error. 

The  federal  courts  have  long  held  that  where  suit  is  brought  against 
a  railroad  for  injuries  to  an  employe  resulting  from  its  negligence, 

6  8  Part  of  opinion  omitted. 

6  0  Mississippi  Code  1906,  §  1985,  as  amended  by  chapter  215,  Laws  1912,  p. 
290- 

"1985  (1808).  Injury  to  Persons  or  Property  hy  Railroads  Prima  Facie 
Evidence  of  Want  of  Reasonable  Skill  and  Care,  etc. — In  all  actions  against 
railroad  corporations  and  all  other  corporations,  companies,  partnerships 
and  individuals  using  engines,  locomotives,  or  cars  of  any  Idnd  or  description 
whatsoever,  propelled  by  the  dangerous  agencies  of  steam,  electricity,  gas,  gas- 
oline or  lever  power,  and  running  on  tracks,  for  damages  done  to  persons  or 
property,  proof  of  injury  inflicted  by  the  running  of  the  engines,  locomotives 
or  cars  of  anv  such  railroad  corporations  or  such  other  corporation,  compa- 
ny, partnership  or  individual  shall  be  prima  facie  evidence  of  the  want  of 
reasonable  skill  and  care  of  sucli  railroad  corporation,  or  such  other  corpora- 
tion, company,  partnership  or  individual  in  reference  to  such  injury.  This 
section  shall  also  apply  to  passengers  and  employes  of  railroad  corporations 
and  of  such  other  corporations,  companies,  partnershipa  and  individuals." 


Sec.  1)  THE   BURDEN   OF  PROOF  60 

such  negligence  is  an  affirmative  fact  which  plaintiff  must  establish, 
Nitro-Glycerine  Case,  15  Wall.  524,  537,  21  L.  Ed.  206;  Patten  v. 
Texas  &  Pacific  Railway  Co.,  179  U.  S.  658,  663,  21  Sup.  Ct.  275,  45 
L.  Ed.  361  ;  Looney  v.  Metropolitan  Railroad  Co.,  200  U.  S.  480,  487, 
26  Sup.  Ct.  303,  50  L.  Ed.  564;  Southern  Ry.  Co.  v.  Bennett,  233  U. 
S.  80,  85,  34  Sup.  Ct.  566,  58  L.  Ed.  860.  In  proceedings  brought  un- 
der the  federal  Employers'  Liability  Act  rights  and  obligations  depend 
upon  it  and  applicable  principles  of  common  law  as  interpreted  and 
applied  in  federal  courts;  and  negligence  is  essential  to  recovery. 
Seaboard  Air  Line  v.  Horton,  233  U.  S.  492,  501,  502,  34  Sup.  Ct.  635, 
58  L.  Ed.  1062,  L.  R.  A.  1915C,  1,  Ann.  Cas.  1915B,  475;  Southern 
Ry.  V.  Gray,  241  U.  S.  333,  339,  36  Sup.  Ct.  558,  60  L.  Ed.  1030; 
New  York  Central  R.  R.  Co.  v.  Winfield,  244  U.  S.  147,  150,  37  Sup. 
Ct.  546,  61  L.  Ed.  1045,  L.  R.  A.  1918C,  439,  Ann.  Cas.  1917D,  1139; 
Erie  R.  R.  Co.  v.  Winfield,  244  U.  S.  170,  172,  37  Sup.  Ct.  556,  61  L. 
Ed.  1057,  Ann.  Cas.  1918B,  662.  These  established  principles  and  our 
holding  in  Central  Vermont  Ry.  v.  White,  238  U.  S.  507,  511,  512,  35 
Sup.  Ct.  865,  59  L.  Ed.  1433,  Ann.  Cas.  1916B,  252,  we  think  make  it 
clear  that  the  question  of  burden  of  proof  is  a  matter  of  substance  and 
not  subject  to  control  by  laws  of  the  several  states.  *  *  * 
Reversed.®" 


PEOPLE  V.  GARBUTT. 

(Supreme  Court  of  Michigan,  1868.     17  Mich.  9,  97  Am.  Dec.  162.) 

CooLEY,  C.  J.*^  The  defendant  was  convicted  in  the  recorder's  court 
of  the  city  of  Detroit,  on  an  information  charging  him  with  the  murder 
of  one  La  Plante.  On  the  trial  it  was  shown  that  La  Plante,  and  a 
young  woman  named  Emily  Boucher,  were  coming  down  Woodward 
avenue  together,  on  the  afternoon  of  September  21,  1867,  when  they 
were  overtaken  by  the  defendant,  who,  after  a  few  words,  fired  a 
pistol  at  La  Plante,  wounding  him  mortally.  No  question  was  made 
that  La  Plante  died  of  this  wound,  but  it  was  insisted,  on  behalf  of  the 
defendant,  that  it  was  inflicted  by  him  under  circumstances  of  great 
provocation,  sufficient  to  reduce  the  offense  from  murder  to  manslaugh- 
ter; and  it  was  further  claimed  that  he  was  at  the  time  mentally 
incompetent  of  a  criminal  intent;   the  reason  being  temporarily  over- 

«o  For  fi  different  view  as  to  the  effect  of  a  statute  making  certain  facts 
presumptive  evidence,  see  People  v.  Cannon,  139  N.  Y.  32,  34  N.  E.  759,  36 
Am.  St.  Rep.  668  (1893) ;  State  v.  Salmon,  216  Mo.  466,  526,  115  S.  W.  1106 
(1909);  Rocljford  v.  Mower,  259  111.  604,  102  N.  E.  1032  (1913).  Compare 
Sackheim  v.  Pigueron,  215  N.  Y.  62,  109  N.  E.  109  (1915),  to  the  effect  that 
an  amendment  to  the  New  York  Code,  providing  that  the  defense  of  contrib- 
utory negligence  should  be  pleaded  and  proved  by  the  defendant  in  actions 
under  the  death  statute,  thus  changing  the  former  rule,  was  a  mere  matter 
of  procedure  and  not  of  substance,  and  hence  might  be  applied  to  a  case 
pending  when  the  amendment  took  effect. 

«i  Part  of  opinion  omitted. 


TO  THE  COURT  AND  THE  JUKI  (Cll.  1 

thrown  through  the  combined  influence  of   intoxicating  drinks,  the 
great  provocation,  and  perhaps  of  hereditary  tendencies  also.     *     *     * 

The  defendant's  counsel  also  requested  the  court  to  charge  the  jury 
that  sanity  is  a  necessary  element  in  the  commission  of  crime,  and 
must  be  proved  by  the  prosecution  as  a  part  of  their  case  whenever  the 
defense  is  insanity.  Also,  that  where  the  defense  makes  proof  of  in- 
sanity, partial  or  otherwise,  whenever  it  shall  be  made  to  appear  from 
the  evidence  that  prior  to  oi'  at  the  time  of  the  offense  charged,  the 
prisoner  was  not  of  sound  mind,  but  was  afflicted  with  insanity,  and 
such  affliction  was  the  efficient  cause  of  the  act  he  ought  to  be  acquit- 
ted by  the  jury.    These  requests  were  refused. 

It  is  not  to  be  denied  that  the  law  applicable  to  cases  of  homicide 
where  insanity  is  set  up  as  a  defense,  is  left  in  a  great  deal  of  confu- 
sion upon  the  authorities ;  but  this,  we  conceive,  springs  mainly  from 
the  fact  that  courts  have  sometimes  treated  the  defense  of  insanity 
as  if  it  were  in  the  nature  of  a  special  plea,  by  which  the  defendant 
confessed  the  act  charged,  and  undertook  to  avoid  the  consequences 
by  showing  a  substantive  defense,  which  he  was  bound  to  make  out 
by  clear,  proof,  j  The  burden  of  proof  is  held  by  such  authorities  to 
shift  from  the  prosecution  to  the  defendant  when  the  alleged  insanity 
comes  in  question ;  and  while  the  defendant  is  to  be  acquitted  unless 
the  act  of  killing  is  established  beyond  reasonable  doubt,  yet  when  that 
fact  is  once  made  out,  he  is  to  be  found  guilty  of  the  criminal  intent, 
unless  by  his  evidence  he  establishes  with  the  like  clearness,  or  at  least 
by  a  preponderance  of  testimony,  that  he  was  incapable  of  criminal 
intent'at  the  time  the  act  was  done :  Regina  v.  Taylor,  4  Cox,  C.  C. 
155;  Regina  v.  Stokes,  3  C.  &  K.  188;  State  v.  Brinyea,  5  Ala.  244; 
State  V.  Spencer,  21  N.  J.  Law,  202 ;  State  v.  Stark,  1  Strob.  (S.  C.) 
479.  These  cases  overlook  or  disregard  an  important  and  necessary 
ingredient  in  the  crime  of  murder ;  and  they  strip  the  defendant  of 
that  presumption  of  innocence  which  the  humanity  of  law  casts  over 
him,  and  which  attends  him  from  the  initiation  of  the  proceedings  un- 
til the  verdict  is  rendered.  Thus,  in  Regina  v.  Taylor,  supra,  it  is 
said :  "In  cases  of  insanity  there  is  one  cardinal  rule  never  to  be  de- 
parted from  viz. :  that  the  burden  of  proving  innocence  rests  on  the 
party  accused."  Alid  in  State  v.  Spencer,  supra,  the  rule  is  laid  down 
thus :  "Where  it  is  admitted  or  clearly  proved  that  the  prisoner  com- 
mitted the  act,  but  it  is  insisted  that  he  was  insane,  and  the  evidence 
leaves  the  question  of  insanity  in  doubt,  the  jury  ought  to  find  against 
him.  The  proof  of  insanity  at  the  time  of  committing  the  act  ought 
to  be  as  clear  and  satisfactory,  in  order  to  acquit  a  prisoner  on  the 
ground  of  insanity,  as  proof  of  committing  the  act  ought  to  be  in  order 
to  find  a  sane  man  guilty."  These  cases  are  not  ambiguous,  and,  if 
sound,  they  more  than  justify  the  recorder  in  his  charge  in  the  case  be- 
fore us. 

The  defendant  was  on  trial  for  murder.    Murder  is  said  to  be  com- 
mitted when  a  person  of  sound  mind  and  discretion  unlawfully  killeth 


Sec.  1)  THE  BURDEN   OF  PROOF  71 

any  reasonable  creature  in  being,  and  under  the  king's  peace,  with 
malice  aforethought,  either  express  or  implied :  3  Coke  Inst.  47 ;  4 
Bl.  Com.  195 ;  2  Chit.  Cr.  L.  724.  These  are  the  ingredients  of  the  of- 
fense; the  unlawful  killing,  by  a  person  of  sound  mind  and  with 
malice ;  or  to  state  them  more  concisely,  the  killing  with  criminal  in- 
tent ;  for  there  can  be  no  criminal  intent  when  the  mental  condition  of 
the  party  accused  is  such  that  he  is  incapable  of  forming  one. 

These,  then,  are  the  facts  that  are  to  be  established  by  the  prosecu- 
tion in  every  case  where  murder  is  alleged.  The  killing  alone  does 
not  in  any  case  completely  prove  the  ofifense,  unless  it  was  accompanied 
with  such  circumstances  that  malice  in  law  or  in  fact  is  fairly  to  be 
implied.  The  prosecution  takes  upon  itself  the  burden  of  establishing 
not  only  the  killing,  but  also  the  malicious  intent  in  every  case.  There 
is  no  such  thing  in  the  law  as  a  separation  of  the  ingredients  of  offense, 
so  as  to  leave  a  part  to  be  established  by  the  prosecution,  while  as  to 
the  rest  the  defendant  takes  upon  himself  the  burden  of  proving  a 
negative.  The  idea  that  the  burden  of  proof  shifts  in  these  cases  is 
unphilosophical,  and  at  war  with  fundamental  principles  of  criminal 
law.  The  presumption  of  innocence  is  a  shield  to  the  defendant 
throughout  the  proceedings,  until  the  verdict  of  the  jury  establishes  the  /^ 
fact  that  beyond  a  reasonable  doubt  he  not  only  committed  the  act,  but 
that  he  did  so  with  malicious  intent. 

It  does  not  follow,  however,  that  the  prosecution  at  the  outset  must 
give  direct  proof  of  an  active  malicious  intent  on  the  part  of  the  de- 
fendant; or  enter  upon  the  question  of  sanity  before  the  defendant  has 
controverted  it.  The  most  conclusive  proof  of  malice  will  usually 
spring  from  the  circumstances  attending  the  killing,  and  the  prosecu- 
tion could  not  well  be  required  in  such  cases  to  go  further  than  to  put 
those  circumstances  in  evidence.  And  on  the  subject  of  sanity,  that 
condition  being  the  normal  state  of  humanity,  the  prosecution  are  at 
liberty  to  rest  upon  the  presumption  that  the  accused  was  sane,  until 
that  presumption  is  overcome  by  the  defendant's  evidence.  The  pre- 
sumption establishes,  prima  facie,  this  portion  of  the  case  on  the  part 
of  the  government.  It  stands  in  the  place  of  tlie  testimony  of  witnesses, 
liable  to  be  overcome  in  the  same  way.  Nevertheless  it  is  a  part  of 
the  case  for  the  government;  the  fact  which  it  supports  must  neces- 
sarily be  established  before  any  conviction  can  be  had ;  and,  when  the 
jury  come  to  consider  the  whole  case  upon  the  evidence  delivered  to 
them,  they  must  do  so  upon  the  basis  that  on  each  and  every  portion 
of  it  they  are  to  be  reasonably  satisfied  before  they  are  at  liberty  to 
find  the  defendant  guilty. 

This  question  of  the  burden  of  proof  as  to  criminal  intent  was  con- 
sidered by  this  court  in  the  case  of  Maher  v.  People,  10  Mich.  212, 
81  Am.  Dec.  781,  and  a  rule  was  there  laid  down  which  is  entirely 
satisfactory  to  us,  and  which  we  have  no  disposition  to  qualify  in  any 
manner.  Applying  that  rule  to  the  present  case,  we  think  that  the 
recorder  did  not  err  in  refusing  to  charge  that  proof  of  sanity  must  be 


72  THE  COURT  AND  THE  JURY  (Cll.  1 

given  by  the  prosecution  as  a  part  of  their  case.  They  are  at  hberty 
to  rest  upon  the  presumption  of  sanity  until  proof  of  the  contrary  con- 
dition is  given  by  the  defense.  But  when  any  evidence  is  given  which 
tends  to  overthrow  that  presumption,  the  jury  are  to  examine,  weigh 
and  pass  upon  it  with  the  understanding  that  aUhough  the  initiative  in 
presenting  the  evidence  is  taken  by  the  defense,  the  burden  of  proof  up- 
on this  part  of  the  case,  as  well  as  upon  the  other,  is  upon  the  prosecu- 
tion to  establish  the  conditions  of  guilt.  Upon  this  point  the  case  of 
People  V.  McCann,  16  N.  Y.  58,  69  Am.  Dec.  642,  is  clear  and  satis- 
factory, and  the  cases  of  Commonwealth  v.  Kimball,  24  Pick.  (Mass.) 
Z7Z,  Commonwealth  v.  Dana,  2  Mete.  (Mass.)  340,  State  v.  Marler,  2 
Ala.  43,  36  Am.  Dec.  398,  Commom^^ealth  v.  McKie,  1  Gray  (Mass.) 
61,  61  Am.  Dec.  410,  Commonwealth  v.  Rogers,  7  Mete.  (Mass.)  500, 
41  Am.  Dec.  458,  and  Hopps  v.  People,  31  111.  385,  83  Am.  Dec.  231, 
may  be  referred  to  in  further  illustration  of  the  principle.  See  also 
Doty  v.  State,  7  Blackf .  (Ind.)  427.  The  recent  case  of  Walter  v.  Peo- 
ple, 32  N.  Y.  147,  does  not  overrule  the  case  of  People  v.  McCann, 
but,  so  far  as  it  goes,  is  entirely  in  harmony  with  the  views  here  ex- 
pressed. *  *  * 
New  trial  awarded.®^ 

62  Accord:  State  v.  Crawford,  11  Kan.  32  (1S73) ;  State  v.  Bartlett,  43  N. 
H.  224,  80  Am.  Dec.  154  (1861);  Davis  v.  United  States,  160  U.  S.  469,  16 
Sup.  Ct.  353,  40  L.  Ed.  499  (1895) ;  People  v.  Penman,  271  111.  82,  110  N.  E. 
894  (1915). 

Compare  Wagner,  J.,  in  State  v.  Klinger,  43  Mo.  127  (1868):  "Both  ob- 
servation and  experience  show  that  insanity  Is  easily  simulated;  and  if  a 
bare  doubt,  which  may  be  created  in  the  minds  of  a  jury  by  slight  circum- 
stances, is  permitted  to  control  and  produce  an  acquittal,  the  guilty  will 
often  go  unpunished,  and  the  interests  of  society  suffer  great  injury.  Mr. 
Bishop,  a  writer  of  great  accuracy  on  Criminal  Law,  remarks:  'Sanity,  as 
observed  by  a  learned  judge,  is  presumed  to  be  the  normal  state  of  the  hu- 
man mind,  and  it  is  never  incumbent  on  a  prosecutor  to  give  affirmative 
evidence  that  such  state  exists  in  a  particular  case.  But,  suppose  this  nor- 
mal state  is  denied  to  have  existed  in  the  particular  instance,  then,  if  evi- 
dence is  produced  in  support  of  such  denial,  the  jury  must  judge  of  it  and 
its  effect  on  tlie  main  issue  of  guilty  or  not  guilty ;  and  if,  considering  all 
the  evidence,  and  considering  the  presumption  that  what  a  man  does  is  sane- 
ly done,  and  suffering  the  evidence  and  the  presumption  to  work  together  in 
their  minds,  they  entertain  a  reasonable  doubt  whether  the  prisoner  did  the 
act  in  a  sane  state  of  mind,  they  are  to  acquit,  otherwise  they  are  to  con- 
vict.' 1  Bish.  Crim.  Proc.  §  534.  I  think  that  the  safest  and  most  reason- 
able rule  is  that,  as  the  law  presumes  every  person  who  has  reached  the  age 
of  discretion  to  be  of  sufficient  capacity  to  be  responsible  for  crimes,  the 
burden  of  establishing  the  insanity  of  the  accused  affirmatively  to  the  satis- 
faction of  the  jury,  on  the  trial  of  a  criminal  case,  rests  upon  the  defense. 
It  is  not  necessary,  however,  that  this  defense  be  established  beyond  a  rea- 
sonable doubt;  it  is  sufficient  if  the  jury  is  reasonably  satisfied,  by  the 
weight  or  preponderance  of  the  evidence,  that  the  accused  was  insane  at  the 
time  of  the  commission  of  the  act.  Loeffner  v.  State,  10  Ohio  St.  598  (1857) ; 
Fisher  v.  People,  23  111.  283  (1860) ;  Conunonwealth  v.  Rogers,  7  Mete.  (Mass.) 
500,  41  Am.  Dec.  458  (1844);  Commonwealth  v.  Eddy,  7  Gray  (Mass.)  583 
(1856)." 


Sec.  1)  THE  BURDEN   OF  PROOF  73 

PEOPLE  V.  MILNER. 

(Supreme  Court  of  California,  1S9S.     122  Cal.  171,  54  Pac.  833.) 

H^NSiiAW,  J.°^  Defendant,  tried  for  the  murder  of  S.  J.  Darrah, 
was  convicted  of  manslaughter.  He  appeals  from  the  judgment,  and 
from  the  order  denying  him  a  new  trial.  The  facts  are  presented 
without  conflict  upon  any  material  proposition,  and  under  them  de- 
fendant's counsel  strenuously  insist  that  the  verdict  is  against  the 
evidence.     *     *     * 

The  only  fair  conclusion  to  be  drawn  from  all  this  is  that  the  de- 
fendant's evidence  is  not  contradicted  upon  any  essential  matter  by  any 
other  direct  and  positive  evidence  in  the  case.  If  this  consideration 
could  properly  end  here,  there  can  be  no  doubt  but  that  a  new  trial 
should  be  ordered,  for  the  reason  urged,  that  the  verdict  is  contrary  to 
the  evidence ;  but  a  trial  for  murder  differs  in  some  respects  from 
the  trial  of  any  other  criminal  offense.  "Upon  a  trial  for  murder, 
the  commission  of  the  homicide  by  the  defendant  being  proved,  the 
burden  of  proving  circumstances  of  mitigation,  or  that  justify  or  ex- 
cuse it,  devolves  upon  him,  unless  the  proof  on  the  part  of  the  prose- 
cution tends  to  show  that  the  crime  committed  only  amounts  to  man- 
slaughter, or  that  the  defendant  was  justifiable  or  excusable."  Pen. 
Code,  §  1105. 

In  this  case  the  killing  by  the  defendant  was  clearly  established  by 
the  people's  proof.  No  circumstances  of  mitigation  or  justification 
to  bring  the  case  within  the  exception  contemplated  by  the  section 
were  shown  in  the  prosecution's  evidence.  The  burden  of  proof,  then, 
of  justifying  and  excusing  the  act,  or  of  proving  circumstances  which 
would  lessen  the  gravity  of  the  offense  to  manslaughter,  devolved  up- 
on the  defendant.  At  the  close  of  the  prosecution's  case  the  presump- 
tion against  the  defendant  was  that  he  had  committed  an  unlawful 
homicide.  It  may  not  be  said  that  the  presumption  of  innocence  coun- 
tervailed against  this,  since  by  the  express  provision  of  the  law  the 
presumption  of  innocence  was  overcome,  and  a  presumption  of  guilt 
took  its  place  when  the  required  facts  were  proven. 

By  section  2061  of  subdivision  2  of  the  Code  of  Civil  Procedure, 
jurors  are  to  be  instructed  "that  they  are  not  bound  to  decide  in  con- 
formity with  the  declarations  of  any  number  of  witnesses  which  do 
not  produce  conviction  in  their  minds,  against  a  less  number,  or  against 
a  presumption  or  other  evidence  satisfying  their  minds."  In  this  is 
a  distinct  recognition  of  the  fact — First,  that  a  presumption  is  evi- 
dence ;  and,  second,  that  it  is  evidence  which  may  outweigh  the  posi- 
tive testimony  of  witnesses  against  it.  It  has  been  said  that  disputable 
presumptions  are  allowed  to  stand,  not  against  the  facts  they  repre- 
sent, but  in  lieu  of  proof  of  the  facts,  and  that  when  the  fact  is  prov- 
en contrary  to  the  presumption  no  conflict  arises,  but  the  presumption 

«s  Part  of  opiuion  omitted. 


74  THE  COURT  AND  THE  JURY  (Ch.  1 

is  simply  overcome  and  dispelled.     Society  v.  Burnett,  106  Cal.  514, 
39  Pac.  922. 

This  is  true.  Against  a  proved  fact,  or  a  fact  admitted,  a  disputa- 
ble presumption  has  no  weight;  but,  where  it  is  undertaken  to  prove 
the  fact  against  the  presumption,  it  still  remains  with  the  jury  to  say 
whether  or  not  the  fact  has  been  proven,  and,  if  they  are  not  satisfied 
with  the  proof  offered  in  its  support,  they  are  at  liberty  to  accept  the 
evidence  of  the  presumption.  In  the  Burnett  Case,  supra,  both  parties 
testified  to  a  state  of  facts  contrary  to  the  presumption.  It  was  like 
an  admission.  It  relieved  the  question  from  conflict.  But  here  the 
burden  of  proving  circumstances  exonerating  the  defendant,  or  re- 
ducing the  grade  of  the  crime,  was  cast  upon  him;  and,  even  though 
there  be  no  direct  contradictory  evidence  in  the  record,  the  jury  was 
not  bound  to  decide  in  accordance  with  the  defendant's  statement, 
if  the  presumption  the  better  satisfied  their  minds. 

In  this  connection  the  language  of  Justice  Field  in  Quock  Ting  v. 
United  States,  140  U.  S.  417,  11  Sup.  Ct.  733,  851,  35  L.  Ed.  501,  is 
peculiarly  applicable:  "Undoubtedly,  as  a  general  rule,"  says  the 
learned  justice,  "positive  testimony  as  to  a  particular  fact,  uncontra- 
dicted by  any  one,  should  control  the  decision  of  the  court;  but  that 
rule  admits  of  many  exceptions.  There  may  be  such  an  inherent  im- 
probability in  the  statements  of  a  witness  as  to  induce  the  court  or 
jury  to  disregard  his  evidence,  even  in  the  absence  of  any  direct  con- 
flicting testimony.  He  may  be  contradicted  by  the  facts  he  states  as 
completely  as  by  direct  adverse  testimony,  and  there  may  be  so  many 
omissions  in  his  own  account  of  particular  transactions,  or  of  his  own 
conduct,  as  to  discredit  his  whole  story.  His  manner,  too,  of  testify- 
ing, may  give  rise  to  doubts  of  his  sincerity,  and  create  the  impres- 
sion that  he  is  giving  a  wrong  coloring  to  material  facts.  All  these 
things  may  properly  be  considered  in  determining  the  weight  which 
should  be  given  to  his  statement,  although  there  be  no  adverse  verbal 
testimony  adduced."    *     *     * 

It  is  easily  possible  for  this  court  to  say,  when  the  identity  of  the 
slayer  is  in  doubt,  whether  the  evidence  adduced  is  legally  sufficient 
for  the  conviction  of  the  defendant;  and,  if  it  be  not,  then  clearly 
it  is  the  duty  of  the  court  to  set  the  verdict  aside.  Under  such  a  state 
of  facts  no  burden  is  cast  upon  a  defendant  to  prove  anything.  In 
the  case  at  bar,  however,  the  killing  by  defendant  is  both  proved  and 
admitted.  The  burden  then  is  by  law  cast  upon  him  to  exculpate  him- 
self, or  mitigate  the  gravity  of  the  crime  with  which  he  is  charged. 
He  has  to  do  this  to  the  satisfaction  of  the  jury.  They  are  to  weigh 
his  evidence,  and  determine  the  fact  whether  or  not  it  is  to  be  believed, 
and,  if  believed,  whether  it  is  sufficient.  How  much  or  how  little 
weight  has  the  jury  attached  to  his  evidence?  How  much  has  the 
witness'  credibility  been  affected  in  their  minds  in  his  appearance  upon 
the  witness  stand,  by  his  manner  of  testifying,  by  what  may  seem  to 
them  some  improbability  in  his  story?     All  these  are  considerations 


Sec.  1)  THE  BURDEN   OF  PROOF  "^5 

before  the  jury  in  passing  upon  the  weight  of  evidence.  In  this  case 
by  its  verdict  the  jury  has,  in  effect,  said:  "The  burden  of  proof  cast 
by  law  upon  the  defendant  has  not,  in  our  judgment,  been  sustained. 
His  evidence  does  not  produce  conviction  in  our  minds  against  the 
presumption  arising  from  the  proof  of  the  people,  which  does  sat- 
isfy our  minds."  In  such  a  case  as  this,  therefore,  the  verdict  of  the 
jur>'  may  not  be  set  aside  for  the  lack  of  legally  sufficient  evidence  to 
support  it. 

New  trial  granted  (on  other  grounds)."* 


EGBERS  V.  EGBERS. 

(Supreme  Court  of  Illinois,  1898.     177  111.  82,  52  N.  E.  2S5.) 

Carter,  C.  J.''  This  was  a  bill  filed  by  defendants  in  error  to 
contest  the  validity  of  an  instrument  purporting  to  be  the  last  will  of 
Magdalena  Egbers,  and  to  set  aside  the  probate  thereof.  The  bill  al- 
leged that  the  alleged  will,  dated  August  7,  1896,  was  probated  in  the 
county  court  of  Hancock  county;  that  it  was  never  signed  or  pub- 
lished by  Magdalena  Egbers,  and  that  she  was  at  the  time  of  its  alleged 
execution  so  sick  with  fever  that  she  was  unable  to  execute  an  instru- 
ment of  any  kind;  that  she  was  unconscious  and  out  of  her  mind; 
that  she  was  very  low  with  typhoid  fever,  unable  to  sit  up  in  bed  or 
to  write,  or  understand  anything  about  the  disposition  of  her  prop- 
erty; and  that  she  had  made  a  valid  will  three  years  before.  The 
will  sought  to  be  set  aside  is  as  follows: 

"State  of  Illinois,  County  of  Hancock.  August  7,  1896.  I  want 
all  my  legal  heirs  to  have  $100  dollars,  and  the  remainder  to  John  W. 
Egbers;  the  land  and  household  to  use  as  he  sees  fit,  as  he  is  my 
executor.  Magdalena  Egbers. 

"Viola  Egbers.  Miss  Mary  Schaffner. 

"Annie  McArthur." 

The  land  contained  80  acres,  and  was  valued  at  about  $4,000.  Issues 
were  made,  and  tried  before  a  jury,  and  a  verdict  was  returned  that 
the  said  instrument  was  not  the  last  will  and  testament  of  Magdalena 
Egbers.  This  verdict  was  set  aside,  and  another  trial  had,  with  the 
same  result.  A  decree  was  then  entered  setting  aside  the  alleged  will 
and  the  probate  thereof,  and  that  John  W.  Egbers  pay  the  costs.  Pro- 
ponents have  sued  out  this  writ  of  error  to  reverse  the  decree.    *    *    * 

«*A  somewhat  similar  statute  in  Illinois  is  construed  as  placing  the  bur- 
den of  establishing  self-defense  on  the  defendant.  Appleton  v.  People,  171 
111.  473,  49  N.  E.  708  (1898). 

Compare  People  v.  Downs,  123  N.  Y.  558.  25  N.  E.  988  (1890),  that  the  bur- 
den is  on  the  prosecution  to  establish  guilt,  and  not  on  the  defendant  to  es- 
tablish an  excuse;  and  so  in  State  v.  Wiugo,  G6  Mo.  181,  27  Am.  Rep.  329 
(1877). 

6  5  Part  of  opinion  omitted. 


76  THE  COURT  AND  THE  JURY  (Ch.  1 

It  is  next  urged  that  the  court  erred  in  giving  to  the  jury  the  fol- 
lowing instruction  at  the  request  of  the  contestants:  "You  are  in- 
structed that  the  burden  of  proof  is  upon  the  proponents  to  show  that 
the  will  offered  by  them  was  signed  by  Magdalena  Egbers  on  August  7, 
1896,  and,  unless  he  has  proven  such  execution  by  a  preponderance 
of  the  evidence,  you  should  find  for  the  contestants.  But  if  you  be- 
lieve from  the  evidence  that  Magdalena  Egbers  did  execute  the  instru- 
ment offered  as  a  will,  and  that  the  same  was  attested  by  two  credible 
witnesses  in  her  presence,  and  that  the  two  subscribing  witnesses  have 
sworn  that  at  the  time  she  executed  it  she  was  of  sound  mind,  then 
the  burden  shifts,  and  the  contestants  assume  the  burden  of  prov- 
ing the  testatrix  was  not  of  sound  mind,  as  defined  in  these  instruc- 
tions." It  is  said  that  this  instruction  required  the  proponents, 
throughout  the  whole  case,  to  sustain  the  burden  of  proving  the  sign- 
ing ®®  of  the  will,  whereas,  it  is  contended,  the  burden  of  proving  the 
execution  of  the  instrument,  as  well  as  the  alleged  unsoundness  of  mind 
of  the  testatrix,  after  a  prima  facie  case  had  been  made  by  the  pro- 
ponents, shifted  to  the  contestants,  who  were  required  to  prove  by 
a  preponderance  of  all  the  evidence  the  allegations  of  their  bill  that  she 
never  signed  or  executed  the  same. 

As  said  by  the  learned  author  of  the  article  entitled  "Burden  of 
Proof"  in  5  Am.  &  Eng.  Enc.  Law  (2d  Ed.),  the  term  "burden  of  proof" 
has  two  distinct  meanings.  By  the  one  is  meant  the  duty  of  establishing 
the  truth  of  a  given  proposition  or  issue  by  such  a  quantum  of  evidence 
as  the  law  demands  in  the  case  in  which  the  issue  arises.  '  By  the 
other  is  meant  the  duty  of  producing  evidence  at  the  beginning  or  at 
any  subsequent  stage  of  the  trial,  in  order  to  make  or  meet  a  prim.a 
facie  case.  See  notes  and  cases  there  cited.  Generally  speaking,  the 
burden  of  proof,  in  the  sense  of  the  duty  of  producing  evidence,  passes 
from  party  to  party  as  the  case  progresses,  while  the  burden  of  proof, 
meaning  the  obligation  to  establish  the  truth  of  the  claim  by  a  prepon- 
derance of  evidence,  rests  throughout  upon  the  party  asserting  the  af- 
firmative of  the  issue,  and,  unless  he  meets  this  obligation  upon  the 
whole  case,  he  fails.  This  burden  of  proof  never  shifts  during  the 
course  of  a  trial,  but  remains  with  him  to  the  end.  This  court  has 
repeatedly  said  that  the  law  presumes  every  man  to  be  sane  until  the 
contrary  is  proved,  and  the  burden  of  proof  rests  upon  the  party  alleg- 
ing insanity.  Argo  v.  Coffin,  142  111.  368,  32  N.  E.  679,  34  Am.  St. 
Rep.  86;  Guild  v.  Hull,  127  111.  523,  20  N.  E.  665;  Menkins  v.  Light- 
ner,  18  111.  282.  But  it  is  incumbent  on  the  proponents  of  the  will  to 
make  out  a  prima  facie  case  in  the  first  instance,  by  proper  proof  of  the 
due  execution  of  the  will  by  the  testator,  and  of  his  mental  capacity, 
as  required  by  the  statute.    The  burden  of  proof  is  then  upon  the  con- 

88  See  rule  in  California  that  under  the  statute  the  contestant  has  the 
burden  of  establishing  the  grounds  of  contest,  including  lack  of  due  execu« 
tion.    In  re  Latour,  140  Cal.  414,  73  Pac.  1070,  74  Pac.  441  (1S92). 


Sec.  1)  THE   BURDEN   OF  PROOF  77 

testants  to  prove  the  allegations  of  their  bill  by  a  preponderance  of 
all  of  the  evidence, — that  the  testator  was  mentally  incompetent.  The 
law  throws  the  weight  of  the  legal  presumption  °^  in  favor  of  sanity 
into  the  scale  in  favor  of  the  proponents,  from  which  it  necessarily  re- 
sults that  upon  the  whole  case  the  burden  of  proof  rests  upon  the  con- 
testants to  prove  the  insanity  of  the  testator.  Craig  v.  Southard,  162 
111.  209,  44  N.  E.  393 ;  Id.,  148  111.  Z7 ,  35  N.  E.  361 ;  Taylor  v.  Pegram, 
151  111.  106,  Zy  N.  E.  837;  Wilbur  v.  Wilbur,  129  111.  392,  21  N.  E. 
1076;    Carpenter  v.  Calvert,  83  111.  62. 

We  are  not  called  upon  to  consider  in  this  case  whether  the  rule  re- 
lating to  the  burden  of  proof  is  the  same  in  its  application  to  both 
questions  raised  by  the  pleadings,  viz.:  First,  that  Magdalena  Egbers 
did  not  sign  the  alleged  will;  and,  second,  that  she  was  mentally 
incompetent  to  make  a  valid  will.  There  is  the  natural  presumption 
that  she  was  sane,  which,  with  all  of  proponents'  evidence,  must  be 
overcome,  and  sufficient  evidence  adduced  so  that  upon  the  whole  evi- 
dence there  is  a  preponderance  in  support  of  the  allegation  in  the  bill 
of  her  mental  unsoundness,  before  the  will  can  be  set  aside  on  that 
ground.  See  cases  cited  above.  But  there  is  no  presumption  that  she 
signed  the  will,  except  that  which  the  law  raises  from  the  prima  facie 
case  made  by  the  proponents.  But,  whether  any  distinction  can  be 
drawn  or  not  (Purdy  v.  Hall,  134  111.  298,  25. N.  E.  645;  McCom- 
mon,  151  111.  428,  38  N.  E.  145),  it  is  a  sufficient  answer  to  the 
point  made  on  the  instruction,  that  the  court  gave  to  the  jury  two  in- 
structions at  the  request  of  the  proponents,  which,  in  the  respect  men- 
tioned, were  in  substance  the  same  as  the  instruction  complained  of, 
and  they  cannot  be  heard  to  complain  of  an  alleged  error  which  they 
asked  the  court  to  commit.     *     *     *  y        ^  ^^  j  j 

Decree  affirmed. ^^  ^3  2- 

« 7  Baker,  J.,  in  Graves  v.  Cohvell,  90  111.  612  (1878):  "It  has  been  said 
that  presumptions  of  law  derive  their  force  from  jurisprudence  and  not  from 
logic,  and  that  such  presumptions  are  arbitrary  in  their  application.  This  is 
true  of  irrebuttable  presumptions,  and,  primarily,  of  such  as  are  rebuttable. 
It  is  true  of  the  latter  until  the  presumption  has  been  overcome  by  proofs, 
and  the  burden  shifted;  but  when  this  has  been  done,  then  the  conflicting 
evidence  on  the  question  of  fact  is  to  be  weighed  and  the  verdict  rendered, 
in  civil  cases,  in  favor  of  the  party  whose  proofs  have  most  weight,  and  in 
this  latter  process  the  presumption  of  law  loses  all  that  it  had  of  mere  ar- 
bitrary power,  and  must  necessarily  be  regarded  only  from  the  standpoint  of 
logic  and  reason,  and  valued  and  given  effect  only  as  it  has  evidential  char- 
acter. Primarily,  the  rebuttable  legal  presumption  affects  only  the  burden 
of  proof,  but  if' that  burden  is  shifted  back  upon  the  party  from  whom,  it 
first  lifted  it,  then  the  presumption  is  of  value  only  as  it  has  probative 
force,  except  it  be  that  on  the  entire  case  the  evidence  is  equally  balanced, 
in  which  event  the  arbitrary  power  of  the  presumption  of  law  would  settle 
the  issue  in  favor  of  the  proponent  of  the  presumption.  Regarded  in  its  evi- 
dential aspect,  a  given  presumption  of  law  may  have  either  more  or  less  of 
probative  value,  dependent  upon  the  character  of  the  presumption  itself  and 
upon  the  circumstances  of  the  particular  ca.se  in  which  the  issue  may  arise." 

Gslii  New  York  the  prima  facie  effect  of  the  probate  is  invoked  to  place 
the  burden  of  establishing  incapacity  on  the  contestant.  Dobie  v.  Armstrong, 
IGO  N,  Y.  584,  55  N.  E.  302  (1899). 


78  THE  COURT  AND  THE  JURY  (Ch.  1 

BALDWIN  et  al.  v.  PARKER  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1868.    99  Mass.  79,  96  Am.  Dec. 

697.) 

Appeal  by  Artemas  Parker,  Stephen  Taylor  and  his  wife,  Emme- 
line,  and  the  minor  children  of  Frederick  Parker,  from  a  decree  of  the 
judge  of  probate,  allowing  as  the  last  will  of  Jonas  Parker,  of  Car- 
lisle, who  died  June  2,  1866,  an  instrument  executed  May  17,  1866, 
which  disposed  of  the  bulk  of  the  testator's  estate  to  his  second  wife 
and  her  children. 

At  the  hearing,  before  Gray,  J.,  the  formal  execution  and  attesta- 
tion of  this  instrument  were  proved;  and  a  trial  by  jury  was  had 
upon  two  issues:  (1)  Whether  the  testator  at  the  time  of  the  execu- 
tion was  of  sound  and  disposing  mind.  (2)  Whether  the  execution 
was  procured  by  the  undue  influence  of  Anna  Parker,  John  Gleason, 
Joanna  Gleason  and  John  F.  Baldwin,  or  some  of  them.  It  appeared 
in  evidence  that  Jonas  Parker  was  twice  married,  the  first  time  in  1809 
and  the  second  in  1818;  that  the  appellants  Artemas  and  Emmeline, 
together  with  Frederick  and  Jonas,  who  died  before  him,  were  his 
children  by  his  first  wife,  who  died  in  1817;  and  that  Joanna,  wife  of 
John  Gleason,  and  Fanny,  wife  of  John  F.  Baldwin,  were  his  children 
by  his  second  wife,  Anna  Parker,  who  survived  him. 

The  appellants  contended  that  the  burden  of  proof  was  upon  the 
executors  on  both  issues ;  the  judge  ruled  that  the  burden  of  proving 
the  sanity  of  the  testator  was  upon  the  executors,  but  the  burden  of 
proving  undue  influence  was  upon  the  appellants;  and  to  this  ruling 
the  appellants  alleged  exceptions.^® 

Hoar,  j.  *  *  *  The  other  question  reserved  upon  the  report 
is  of  more  difficulty  and  importance.  It  is  the  question.  Upon  whom 
is  the  burden  of  proof  upon  the  issue  of  undue  influence?  The  claim 
on  the  part  of  the  appellants  is,  that  the  party  propounding  the  will 
is  bound  to  prove  that  it  is  the  will  of  the  testator,  and  not  of  some 
other  person  operating  upon  and  through  him.  On  the  other  hand, 
the  executors  contend  that  when  the  execution  of  the  instrument  and 
testamentary  capacity  are  established,  nothing  more  is  required  by  law 
to  be  shown  affirmatively ;  and  that,  to  avoid  an  instrument  for  fraud 
or  duress,  they  must  be  proved  by  him  who  alleges  them.  In  sup- 
port of  the  former  view  it  is  argued  that  the  issue  upon  the  probate 
of  a  will  is  substantially  a  single  one,  to  prove  that  the  instrument  was 
freely  executed,  according  to  the  forms  required  by  law,  by  a  testa- 
tor of  sound  mind;  and  that,  whatever  presumptions  may  exist  upon 
any  part  of  this  issue,  the  burden  of  proof  does  not  shift. 

The  question  is  certainly  not  without  difficulty,  and  the  authorities 
upon  it  are  very  conflicting.  It  is  settled  in  this  Commonwealth  that 
on  the  issue  of  sanity  or  testamentary  capacity  the  burden  of  proof 

«i>  I'art  of  statement  and  opinion  omitted. 


Sec.  1)  THE   BURDEN   OP   PROOF 


79 


is  upon  the  party  that  offers  the  will  for  probate;   and  that  the  pre- 
sumption ^°  of  sanity  does  not  shift  the  burden  upon  the  opposing 

70  Knowlton,  C.  J.,  in  Clifford  v.  Taylor,  204  Mass.  358,  90  N.  E.  8G2  (1910): 
"The  petitioner  requested  the  judse  to  instruct  the  jury  as  follows:  'Al- 
though the  executor  has  the  burden  of  proof  upon  him  to  satisfy  the  Jury 
that  testatrix  was  of  sound  and  disposing  mind  and  memory  at  the  time  of 
the  execution  of  the  will,  there  is  a  presumption  of  sanity,  and  that  pre- 
sumption stands  until  it  is  rebutted.'  Using  the  word  'rebutted'  in  the  sense 
of  'met  by  evidence  to  the  contrary,'  the  proposition  is  correct.  Ricliardson 
V.  Ely,  ISl  Mass.  97,  99,  63  N.  E.  3  (1902).  Looking  at  the  instruction  on 
this  subject  in  different  parts  of  the  charge,  it  is  not  clear  what  the  jury 
would  understand  as  the  law  of  the  case.  Some  of  the  judge's  language 
seems  to  be  substantially  in  accordance  with  this  proposition.  Other  lan- 
guage seems  to  imply  that,  the  moment  an  issue  is  presented  by  a  denial  of 
sanitv,  the  presumption  becomes  of  no  effect,  and  the  case  is  to  be  tried  upon 
the  evidence  introduced  by  the  parties,  as  if  there  were  no  presumption.  The 
true  rule  is  that  the  presumption  is  enough  to  sustain  the  burden  of  proof, 
until  evidence  is  introduced  which  tends  to  control  it.  On  the  introduction 
of  such  evidence,  the  case  is  to  be  determined  upon  the  whole  evidence,  in- 
cluding the  presumption  of  sanity,  and  if  the  preponderance  of  the  evidence 
is  in  favor  of  sanity,  the  burden  of  proof  is  sustained  and  the  jury  will  find 
for  the  executor.  If,  upon  the  whole  evidence,  including  this  presumption, 
the  scales  are  in  even  balance,  the  flndiug  will  be  for  the  contestant,  on  the 
ground  that  the  executor  has  failed  to  sustain  the  burden  of  proof.  Fulton 
v.  Umbehend,  182  Mass.  487,  65  N.  E.  829  (1903);  Cohasset  v.  Moors,  204 
Mass.  173.  90  N.  E.  978  (1910)."  ^ 

Compare  Doe.  J.,  in  Lisbon  v.  Lyman,  49  N.  H.  553  (1870)>=*^f  there  was 
a  presumption  of  law  that  minors  are  not  emancipated,  it  amounted  to  no 
more  than  this,  the  plaintiff  alleging  emancipation  had  the  burden  of  proof; 
and  that  was  known  without  the  assistance  of  a  presumption.  A  legal  pre- 
sumption is  a  rule  of  law— a  reasonable  principle,  or  an  arbitrary  dogma- 
declared  by  the  court.  There  may  be  a  difficulty  in  weighing  such  a  rule  of 
law  as  evidence  of  a  fact,  or  in  weighing  law  on  one  side,  against  fact  on  the 
other.  And  if  the  weight  of  a  rule  of  law  as  evidence  of  a  fact,  or  as  coun- 
terbalancing the  evidence  of  a  fact,  can  be  comprehended,  there  are  objec- 
tions to  such  a  use  of  it.  In  this  case,  on  the  question  of  emancipation,  if 
the  scales  holding  all  the  evidence  on  both  sides  were  even,  did  the  presump- 
tion when  added  to  the  defendant's  side  incline  them  in  his  favor?  If  it  did, 
it  had  no  effect  on  the  case,  because  it  was  not  necessary  for  the  defendant 
to  produce  a  preponderance  of  the  evidence;  if  it  did  not,  the  jury  were  in- 
structed to  weigh  as  evidence,  that  which  had  no  weight.  If  the  scales  hold- 
ing all  the  evidence  on  both  sides,  preponderated  in  favor  of  the  plaintiff, 
did  the  presumption,  when  added  to  the  defendant's  side,  restore  the  equi- 
librium? If  it  did,  the  plaintiff  was  required  to  produce  somethmg  more 
than  a  preponderance  of  the  evidence ;  if  it  did  not,  it  was  useless.  A  legal 
presumption  is  not  evidence.  In  civil  cases,  it  is  the  finding  of  a  fact  or  the 
decision  of  a  point,  when  there  is  no  testimony,  and  no  inference  of  fact 
from  the  absence  of  testimony,  on  the  subject,  or  when  the  evidence  is  balanc- 
ed. And  often  the  fact  is  also  found,  or  the  decision  made,  by  the  rule  of 
law  which  imposes  the  burden  of  proof  on  the  party  having  the  aflirmative. 
When  this  is  the  case,  the  assignment  of  the  burden  of  proof  to  one  party, 
and  the  benefit  of  tlie  legal  presumption  to  the  other,  is  a  double  and  un- 
just use  of  one  and  the  same  thing.  Among  the  various  ways  in  which  the 
province  of  the  jury  has  been  encroached  upon,  in  England,  the  use  of  legal 
presumptions  as  substitutes  for  evidence,  is  one  of  the  most  conspicuous. 
In  this  country,  where  the  right  of  the  jury,  and  the  right  of  parties  to  a 
full  trial  of  facts  by  jury,  are  more  carefully  observed,  the  English  collection 
of  legal  presumptions,  is  not  to  be  adopted  upon  the  mere  strength  of  prece- 
dent. In  each  instance  a  critical  examination  is  to  be  made  to  ascertain 
whether  that  which  is  asserted  as  a  legal  presumption  is  anything  more 
than  a  conclusion  of  fact  at  which  the  court  may  think  the  jury  ouglit  to  ar- 
rive.   The  presumption  against  the  freedom  of  minors,  was  not  an  element  of 


80  THE  COURT  AND  THE  JURY  (Ch.  1 

party.  Crowninshield  v.  Crowninshield,  2  Gray,  524;  Baxter  v.  Ab- 
bott, 7  Gray,  72.  The  burden  is  undoubtedly  on  the  same  side  to 
prove  the  formal  execution  of  the  instrument,  and  that  the  testator 
executed  it  as  and  for  his  last  will. 

The  objection  to  a  will  that  it  was  obtained  by  undue  influence  is 
not  one  which  it  is  easy  to  define  with  precision.  The  term  seems  to 
include  both  fraud  and  coercion.  Sir  John  Nicholl  defines  it  to  be 
that  degree  of  influence  which  takes  away  from  the  testator  his  free 
agency ;  such  as  he  is  too  weak  to  resist ;  such  as  will  render  the  act 
no  longer  that  of  a  capable  testator.  Kinleside  v.  Harrison,  2  Phil- 
lim.  551.  Where  influence  has  been  exerted  upon  a  person  of  feeble 
mind,  or  whose  faculties  are  impaired  by  age  or  disease,  it  is  not  al- 
ways easy  to  draw  the  line  between  the  issues  of  sanity  and  of  undue 
influence.  So  it  is  possible  that  in  many  cases  the  coercion  might  be 
such  as  to  be  available  to  set  aside  the  will  on  the  ground  that  it  had 
not  been  executed  by  the  testator. 

But  where  the  issue  of  undue  influence  is  a  separate  and  distinct 
issue,  involving  proof  that  the  testator,  though  of  sound  mind,  and 
intending  that  the  instrument,  which  he  executes  with  all  the  legal 
formalities,  shall  take  effect  as  his  will,  was  induced  to  execute  it 
by  the  controlling  power  of  another,  we  think  the  weight  of  authority 
and  the  best  reason  are  in  favor  of  imposing  upon  the  party  who  al- 
leges the  undue. influence  the  burden  of  proving  it.  And  we  are  in- 
clined to  think  that  this  has  been  the  general  practice  in  this  Com- 
monwealth.   Glover  v.  Hayden,  4  Gush.  580. 

evidence;  could  not  be  weighed  as  evidence;  and  it  does  not  appear  that 
any  use  could  rightfully  be  made  of  it  in  the  case.  It  was  put  into  the  scale 
with  the  defendant's  evidence,  where  it  would  be  likely  to  mislead  the  jury, 
and  give  the  defendant  a  material  advantage  to  which  he  was  not  entitled ; 
but  this  is  no  cause  for  setting  aside  the  verdict  on  the  defendant's  motion." 

A  rule  of  law  may  place  the  burden  of  producing  evidence  on  the  negative 
instead  of  the  aflfirmative,  or  it  may  place  the  burden  of  establishing  on  the 
negative  instead  of  the  affirmative,  and  it  may  conceivably  do  the  latter  in 
case  the  affirmative  establishes  some  subordinate  proposition.  For  comments 
on  such  a  rule,  see  article  by  Professor  Abbott  in  6  Harvard  Law  Review, 
125. 

It  is  impossible,  however,  to  understand  the  mental  process  Involved  in 
balancing  or  weighing  a  rule  of  law  along  with  evidence.  As  Lord  Justice 
Bowen  expressed  it,  in  Abrath  v.  Railway,  11  Q.  B.  D.  440  (1883),  when  a 
jury  is  asked  as  to  a  plain  question  of  fact,  either  they  believe  it  or  do  not 
believe  it,  or  can  not  arrive  at  a  conclusion.  But  the  general  probability  on 
which  many  presumptions  are  based  might  conceivably  affect  the  conclusion 
reached  by  the  jury.  For  example,  the  general  probability  that  a  person  is 
more  likely  to  be  sane  than  otherwise,  because  the  majority  of  individuals 
are  sane,  does  not  appear  to  furnish  much  aid  in  the  determination  of  the 
mental  condition  of  X.,  as  to  whose  behavior  there  is  ample  evidence.  While 
it  is  true  that  the  majority  of  individuals  are  sane,  it  is  equally  true  that 
the  majority  of  sane  individuals  do  not  behave  in  certain  unusual  ways.  On 
the  other  hand  the  probal)ility  that  the  scattering  of  Are  by  a  locomotive  is 
due  to  bad  condition  or  faulty  construction  may  have  considerable  force  as 
an  argument  in  a  given  case,  quite  apart  from  any  technical  rule  of  pre- 
sumption. When  courts  talk  of  weighing  presumptions  with  evidence,  they 
doubtless  mean  that  such  probabilities  may  be  considered,  but  the  expression 
is  unfortunate,  and  apt  to  mislead  a  jury. — Editor. 


Sec.  1)  THE  BURDEN   OF  PROOF  81 

The  most  recent  decision  in  the  court  of  appeals  in  the  state  of 
New  York  upon  the  question  is  to  the  same  effect.  Tyler  v.  Gardiner, 
35  N.  Y.  559.  All  the  judges  concurred  upon  this  point,  though  they 
differed  upon  others  arising  in  the  case. 

The  decision  in  Crownin.-^hield  v.  Crowninshield,  and  in  Baxter  v. 
Abbott,  ubi  supra,  that  the  burden  of  proof  is  upon  the  party  pro- 
pounding the  will  to  establish  the  sanity  of  the  testator,  although  the 
presumption  of  law  is  in  favor  of  sanity,  is  placed  very  much  upon 
the  construction  of  the  statute  of  wills,  which  makes  the  sanity  of  the 
testator  a  condition  precedent  to  his  power  to  make  a  will.  But  when 
all  is  proved  that  the  statute  requires ;  when  a  testator  of  sound  mind 
has  intentionally  made  and  published  a  will  according  to  the  forms 
of  law,  his  will  is  as  much  a  legal  conveyance  and  disposition  of  his 
property  as  any  other  lawful  instrument  of  conveyance.  It  may  be  im- 
peached or  made  invalid  by  proof  of  fraud,  duress,  or  undue  influ- 
ence, which  have  caused  it  to  contain  provisions  which  he  has  been 
wrongfully  induced  to  insert  in  it ;  but  so  may  a  deed  or  other  con- 
tract be  impeached  for  the  like  reason. 

The  defence  of  duress  or  fraud,  when  made  in  avoidance  of  a  deed, 
is  required  to  be  specially  pleaded,  and  is  not  good  under  the  issue 
of  non  est  factum.  The  reason  seems  to  be,  that  the  instrument  is 
voidable,  and  not  void ;  it  is  the  deed  of  the  maker  of  it ;  and,  if  he 
would  avoid  it,  he  is  called  upon  to  prove  the  existence  of  facts  which 
will  authorize  him  to  do  so.  Yet  the  issue  of  fraud  or  duress  in- 
volves the  question  whether  the  deed  was  ever  obligatory,  as  much  as 
the  same  issue  does  the  original  validity  of  a  will.  It  is  true  that  the 
distinction  between  a  voidable  and  void  act  has  no  precise  application 
to  a  will ;  because  a  will  is  in  its  nature  revocable,  and  may  be  set 
aside  by  a  testator  at  his  pleasure.  But  the  question  whether  a  will 
is  his  free  act,  the  product  of  his  own  volition  and  not  of  another's 
is  essentially  the  same  as  in  the  case  of  a  contract ;  and  there  is  no 
positive  statute  rule  to  make  a  difference  in  this  respect. 

It  was  said  by  Baron  Parke  in  Barry  v.  Butlin,  1  Curteis,  638,  and 
the  observation  was  quoted  with  approbation  by  Mr.  Justice  Thomas 
in  Crowninshield  v.  Crowninshield,  "that  the  onus  probandi  lies  in 
every  case  upon  the  party  propounding  a  will ;  and  he  must  satisfy 
the  conscience  of  the  court  that  the  instrument  so  propounded  is  the 
last  will  of  a  free  and  capable  testator."  This  statement,  though  ap- 
parently supporting  the  doctrine  that  the  burden  of  proof  on  the  is- 
sue of  undue  influence  is  on  the  party  propounding  the  will,  we  do 
not  feel  sure  was  so  intended. 

I'he  case  was  tried  upon  an  allegation  by  the  executors  propounding 
the  will,  and  upon  allegations  of  the  heir  setting  up  that  it  was  ob- 
tained by  undue  influence.  The  question  discussed  by  Baron  Parke 
upon  the  burden  of  proof  was  upon  the  point,  whether,  if  it  appeared 
that  the  will  was  prepared  by  a  person  who  took  a  benefit  under  it,  it 
HiNT.Ev. — 6 


82  THE  COURT  AND  THE  JURY  (Ch.  1 

made  a  presumption  and  onus  probandi  against  the  will,  and  re- 
quired proof  that  the  contents  of  the  will  were  known  to  the  testator. 

He  says:  "If  it  is  intended  to  be  stated,  as  a  rule  of  law,  that  in 
every  case  in  which  the  party  preparing  the  will  derives  a  benefit 
under  it,  the  onus  probandi  is  shifted,  and  that  not  only  a  certain 
measure,  but  a  particular  species  of  proof  is  therefore  required  from 
the  party  propounding  the  will,  we  feel  bound  to  say  that  we  conceive 
the  doctrine  to  be  incorrect.  The  strict  meaning  of  the  term  onus 
probandi  is  this,  that  if  no  evidence  is  given  by  the  party  on  whom 
the  burden  is  cast  the  issue  must  be  found  against  him."  "In  all 
cases  this  onus  is  imposed  on  the  party  propounding  a  will ;  it  is  in 
general  discharged  by  proof  of  capacity  and  fact  of  execution ;  from 
which  the  knowledge  of  and  assent  to  the  contents  of  the  instrument 
are  assumed,  and  it  cannot  be  that  the  simple  fact  of  the  party  who 
prepared  the  will  being  himself  a  legatee  is  in  every  case  and  under  all 
circumstances  to  create  a  contrary  presumption,  and  to  call  on  the 
court  to  pronounce  against  the  will  unless  additional  evidence  is  pro- 
duced to  prove  the  knowledge  of  its  contents  by  the  deceased." 

He  concludes  that  it  amounts  only  to  a  circumstance  of  suspicion, 
calling  for  care  in  the  court,  and  calling  on  it  not  to  grant  probate 
without  entire  satisfaction  that  the  instrument  does  express  the  real 
intentions  of  the  deceased. 

The  whole  result  of  the  reasoning  would  seem  to  be,  that  upon  the 
separate  issue  of  undue  influence  the  burden  of  proof  is  upon  the 
party  alleging  it ;  and  that  it  does  not  shift  upon  the  party  having 
the  general  burden  of  establishing  the  will,  upon  the  mere  introduc- 
tion of  evidence  of  a  single  circumstance  of  suspicion.  If  no  evi- 
dence were  offered  on  either  side,  the  allegation  of  undue  influence 
would  fail.  In  the  language  of  Chief  Justice  Mellen,  "the  law  requires 
proof  of  facts ;  especially  when  the  object  is  to  destroy  and  set  aside 
an  act  apparently  deliberate,  and  executed  with  all  usual  and  legal 
formalities."  Small  v.  Small,  4  Greenl.  (Me.)  224,  16  Am.  Dec.  253. 
The  view  which  we  have  taken  of  the  English  doctrine  on  the  subject 
is  confirmed  by  a  recent  decision  in  the  house  of  lords,  Boyse  v.  Ross- 
borough,  6  H.  L.  Cas.  2.  In  that  case,  page  49,  Lord  Cranworth  says : 
"One  point,  however,  is  beyond  dispute,  and  that  is,  that  where  once 
it  has  been  proved  that  a  will  has  been  executed  with  due  solemnities 
by  a  person  of  competent  understanding,  and  apparently  a  free  agent, 
the  burden  of  proving  that  it  was  executed  under  undue  influence  is 
on  the  party  who  alleges  it.     Undue  influence  cannot  be  presumed," 

The  rule  which  was  adopted  at  the  trial  seems  therefore  to  us  to 
be  correct  in  principle,  and  supported  by  authority,  as  well  as  obvious- 
ly the  most  convenient  in  practice;  and  none  of  the  objections  to 
the  probate  of  the  will  can  be  supported. 

Judgment  on  the  verdicf^^ 

71  That  the  burden  of  establishing  undue  influence  is  on  the  contestants, 
see  Boyse  v.  Kossborough,  6  H.  L.  C.  2    (1857) ;   Michael   v.   Marshall,  201 


Sec.  1)  THE   BURDEN   OF   PROOF  83 

WHEELER  et  al.  v.  ROCKETT  et  al. 
(Supreme  Court  of  Errors  of  Connecticut,  1917.     91  Conn.  388,  100  Atl.  13.) 

Thayer,  JJ^  The  jury  gave  the  plaintiffs  a  verdict  setting  aside 
an  alleged  will  of  Mrs.  Keppy  which  had  been  approved  by  the  pro- 
bate court.  The  defendant  alleges  error  in  the  court's  refusal  to  set 
aside  the  verdict,  and  in  several  rulings  upon  questions  of  evidence, 
in  the  charge  as  given,  and  in  refusing  to  charge  as  requested.    *    *    * 

The  tenth  assigns  error  in  the  court's  failure  to  charge,  as  requested 
by  the  defendant,  that  the  law  presumes  every  person  sane  arid  capa- 
ble of  making  a  will  until  the  contrary  is  shown.  The  request  was 
not  adapted  to  the  circumstances  of  the  case  before  the  jury,  and  if 
given  would  have  tended  to  mislead  them  as  to  the  party  on  whom 
the  burden  of  proof  lay  upon  the  question  of  the  testatrix's  soundness 
of  mind.  The  burden  of  proving  that  the  testatrix  was  of  sound  mind 
was  upon  the  proponents  of  the  will.  They  might  in  the  first  in- 
stance prove  the  execution  of  it  in  due  form,  and  if  nothing  in  the 
circumstances  at  the  time  of  its  execution  tended  to  show  the  con- 
trary, the  proponents  might  rely  upon  the  prima  facie  presumption 
tliat  the  testatrix  was  of  sound  mind.  The  presumption  of  sanity  would 
be  sufficient  until  evidence  tending  to  show  the  contrary  was  introduced 
by  the  contestants.  The  proponents  would  after  the  introduction  of 
such-  evidence  be  required  to  rebut  this  by  preponderating  evidence, 
and  the  presumption  of  sanity  would  have  no  probative  force.  Knox's 
Appeal,  26  Conn.  20,  22 ;  Livingston's  Appeal,  63  Conn.  68,  72,  26  Atl. 
470;  Barber's  Appeal,  63  Conn.  393,  402,  27  Atl.  973,  22  L.  R.  A. 
90;  Vincent  v.  Mutual  Reserve  Fund  Association,  77  Conn.  281,  290, 
29L  58  Atl.  963.  There  was  evidence  in  this  case,  as  we  have  said 
before,  tending  to  show  that  the  testatrix  harbored  a  delusion  which 


in  70,  G6  N.  E.  273  (1903) ;  Prentis  v.  Bates,  93  Mich.  234,  53  N.  W.  153,  17 
L.  R.  A.  494  (1892) ;  ISlorton  v.  Heidorn,  135  Mo.  60S,  37  S.  W.  504  (1S96) ; 
Campbell  v.  Carlisle,  162  Mo.  634,  63  S.  W.  701  (1901) ;  In  re  Kindberg,  207 
N.  Y.  220,  100  N.  E.  789  (1912).  Contra:  Sheehan  v.  Kearney,  82  Miss.  6SS, 
21  South.  41,  35  L.  R.  A.  102  (1903),  strong  opinion. 

That  in  certain  cases  of  confidential  relations,  the  burden  of  establishing 
the  absence  of  undue  inlluence  is  on  the  proponent,  see  Hegney  v.  Head,  126 
Mo.  619,  29  S.  W.  587  (1895) ;  In  re  Cowdry's  Will,  77  Vt.  359,  60  Atl.  141,  3 
Ann.  Cas.  70  (1905). 

In  England  there  appears  to  be  no  presumption  of  undue  influence  from 
confidential  relations.     Tarfitt  v.  Lawless,  L.  R.  2  P.  &  D.  462  (1872). 

But  in  certain  cases  of  wills  prepared  by  one  standing  in  a  confidential 
relation,  the  general  presumption  from  formal  execution  is  not  sufficient,  and 
the  proponent  is  required  to  prove  that  the  testator  knew  and  approved  the 
contents  of  the  instrument.  Tyrrell  v.  Painton  [1S91J  Probate,  151.  Com- 
pare Barry  v.  Butlin,  2  Moore,  P.  C.  480  (1838). 

T2  Part  of  opinion  omitted. 


84  THE  COURT  AND  THE  JURY  (Ch.  1 

might  lead  her  to  cut  off  her  younger  daughter  with  a  pittance  as  she 
did.  The  court  therefore  properly  refused  the  request  in  question. 
*     *     * 

No  errorJ* 


HUGHES  V.  WILLIAMS. 

(Supreme  Judicial  Court  of  Massachusetts,  1918.    229  Mass.  467,  118  N.  E. 

914.) 

RuGG,  C.  J.  This  is  a  petition  for  tlie  registration  of  title  to  land. 
It  was  appealed  from  the  land  court  to  the  superior  court,  where  it 
was  tried  to  a  jury  upon  four  issues.  There  was  found  to  be  no  error 
of  law  in  the  trial  of  three  of  these  issues,  but  as  to  the  other  issue 
exceptions  were  sustained  and  a  new  trial  ordered  confined  to  that  is- 
sue. 218  Mass.  448,  105  N.  E.  1056.  The  material  dates  and  facts 
respecting  the  chain  of  title  are  these:  On  April  1,  1896,  the  respond- 
ent Williams  acquired  title  to  the  locus  by  deed  which  was  duly  re- 
corded. He  retained  that  title  until  July  5,  1901,  when  he  deeded  it  to 
one  Jones  by  deed  duly  recorded ;  on  the  same  date  he  took  a  deed  back 
from  Jones  to  himself,  which  was  not  recorded  until  March,  1908. 
Meanwhile,  on  May  24,  1906,  while  the  record  title  stood  in  the  name 
of  Jones,  one  Duckery  brought  an  action  against  Jones,  and  attached 
the  locus,  which  was  sold  on  execution  sale  to  the  petitioner,  and  a 
sheriff's  deed  thereof  to  him  dated  April  10,  1909,  was  duly  recorded. 

The  petitioner  alleges  that  he  is  the  owner  of  the  land  by  reason  of 
this  sheriff's  deed.  The  respondent  pleaded  that  he  was  owner  by  vir- 
tue of  his  deed  of  April  1,  1896,  and  of  the  deed  from  Jones.  The 
previous  trial  resulted  in  findings  that  Williams  protested  at  the  ex- 
ecution sale,  and  that  the  petitioner  before  his  purchase  at  the  execu- 
tion sale  was  informed  that  the  beneficial  interest  was  in  Williams  and 
that  Jones  had  a  bare  record  title. 

7  3  Barclay,  J.,  in  Morton  v.  Heidorn,  135  Mo.  608,  37  S.  W.  504  (1S96): 
"In  the  case  at  hand,  the  jury  is  required  to  find  the  charge  of  undue  in- 
fluence 'proven'  to  their  'satisfaction'  by  a  'preponderance  of  the  evidence,' 
having  just  been  told  that,  upon  proof  of  due  execution  and  attestation  of 
the  document  and  of  the  soundness  of  testator's  mind,  'said  instrument  of 
writing  was  and  is  presumed  to  be  his  free  and  voluntary  act.'  In  the  con- 
nection in  which  the  words  appear,  we  apprehend  the  jury  would  naturally 
infer  that  the  'preponderance  of  evidence'  must  be  such  as  to  overcome  the 
presumption  which  the  court  declared  to  exist  as  a  matter  of  law.  That 
declaration  is  not  entirely  correct.  When  the  cause  was  submitted  to  the 
jury,  there  was  no  presumption  of  the  law  that  the  document  was  testator's 
'free  and  voluntary  act.'  There  was  evidence  before  them  which  all  the 
parties  and  the  court  alil^e  interpreted  as  tending  to  prove  undue  influence. 
Both  adversary  parties  asked  and  obtained  instructions  on  that  theory.  In 
that  state  of  the  case  it  was  not  proper  to  give  proponents  of  the  will  the 
benefits  of  a  so-called  presumption  which  is  merely  one  of  fact,  applied  in  the 
absence  of  any  evidence  permitting  a  different  inference." 

Compare  reasoning  of  Baldwin,  J.,  in  Sturdevant's  Appeal,  71  Conn.  392, 
42  Atl.  70   (1899). 


Sec.  1)  THE   BURDEN   OF  PROOF  85 

The  single  question  submitted  at  the  last  trial  was  this :  "Did  James 
H.  Duckery,  before  his  attachment  of  the  property  in  question,  have 
actual  knowledge  of  the  existence  of  the  deed  back  from  Jones  to  Wil- 
liams, of  July  5,  1901  ?" 

The  trial  judge  ruled  that  the  burden  of  proof  was  on  the  petitioner 
to  satisfy  the  jury  that  Duckery  did  not  have  such  knowledge.  The 
point  now  presented  for  decision  is  the  correctness  of  that  ruling. 

It  is  provided  by  R.  L.  c.  127,  §  4,  that :  "A  conveyance  of  an  estate 
in  fee  simple  *  *  *  shall  not  be  valid  as  against  any  person,  ex- 
cept the  grantor  *  *  *  his  heirs  and  devisees  and  persons  hav- 
ing actual  notice  of  it"  unless  it  is  recorded. 

The  burden  of  proving  that  he  was  entitled  to  the  registration  of  the 
title  to  the  premises  rested  upon  the  petitioner,  and  remained  upon 
him  throughout.  Temple  v.  Benson,  213  Mass.  128,  132,  100  N.  E. 
63 ;   Hughes  v.  Williams,  218  Mass.  448,  449,  105  N.  E.  1056. 

The  petitioner's  title  appeared  to  be  perfect  on  the  record.  It  could 
be  defeated  only  provided  that  Duckery,  the  attaching  creditor  in  the 
action  against  Jones,  had  actual  knowledge  of  the  unrecorded  deed 
from  his  debtor,  Jones,  to  the  respondent,  and  provided  it  appeared 
further  that  the  petitioner  himself  at  the  time  of  his  purchase  also  had 
such  actual  knowledge.  The  respondent  did  not  attack  the  sufficiency 
of  the  petitioner's  title  on  the  record,  nor  did  he  assail  the  validity  of 
any  instrument  through  which  the  petitioner  claimed  title;  but  he  as- 
serted title  in  himself  on  the  strength  of  facts  which  he  alleged  exist- 
ed outside  the  record,  namely,  actual  knowledge  by  Duckery  at  the 
time  of  making  his  attachment  of  the  existence  of  the  deed  to  himself 
and  actual  knowledge  by  the  petitioner  of  the  same  fact  at  the  time  of 
his  purchase.  If  these  were  the  facts,  the  respondent  was  entitled  to 
prevail  under  the  terms  of  the  statutes.  Wenz  v.  Pastene,  209  Mass. 
359,  95  N.  E.  793.  But  this  assertion  by  the  respondent  was  in  the 
nature  of  a  confession  of  the  record  title,  of  the  petitioner  and  an 
avoidance  of  its  natural  force  and  effect  by  the  existence  of  extrane- 
ous facts,  which  as  matter  of  common  honesty  and  under  the  statute 
would  prevent  the  petitioner  from  taking  advantage  of  his  clear  rec- 
ord title. 

The  statement  of  the  legal  principle  where  the  burden  of  proof  rests 
is  plain.  The  party  who  makes  and  is  required  to  make  an  assertion 
of  a  fact  in  order  to  set  forth  a  case  as  matter  of  law  entitling  him 
to  prevail,  and  whose  case  requires  the  proof  of  that  fact,  has  at  all 
times  the  burden  of  proving  such  fact.  But  where  the  party  upon 
whom  the  burden  of  proof  is  cast  offers  competent  proof  of  that  fact, 
and  his  adversary  instead  of  producing  proof  to  negative  that  same  fact 
proposes  to  show  another  and  a  distinct  fact  which  avoids  the  eft'ect 
of  the  first  fact,  then  the  burden  of  proof  rests  upon  the  party  propos- 
ing to  show  the  latter  fact.  This  is  an  affirmative  defense,  the  burden 
of  proving  which  rests  upon  the  party  asserting  it.    Powers  v.  Russell, 


86  THE  COURT  AND  THE  JURY  (Cll.  1 

13  Pick.  69,  76,  77;  Wylie  v.  Marinofsky^  201  Mass.  583-584,  88  N. 
E.  448;  Wood  v.  Blanchard,  212  Mass.  53-56,  98  N.  E.  616;  Stocker 
V.  Foster,  178  Mass.  591-600,  601,  60  N.  E.  407;  Parker  v.  Murphy, 
215  Mass.  72-75,  102  N.  E.  85. 

The  practical  application  of  the  rule  oftentimes  raises  questions  of 
difficulty.  Several  cases  have  arisen  where  the  burden  of  proof  of  the 
"actual  notice"  mentioned  in  the  statute  has  been  referred  to.  In 
Pomroy  v.  Stevens,  11  Mete.  244,  at  248,  it  was  said:  "The  party  re- 
lying on  an  unregistered  deed,  against  a  subsequent  purchaser  or  at- 
taching creditor,  must  prove  that  the  latter  had  actual  notice  or  knowl- 
edge of  such  deed." 

In  Dooley  v.  Wolcott,  4  Allen,  406,  the  trial  judge  instructed  the 
jury  that  it  was  incumbent  upon  the  tenant,  who  relied  upon  an  un- 
recorded deed,  to  prove  that  the  demandant  had  actual  notice  of  it, 
and  it  was  said  at  page  409 :  "Upon  the  question  of  notice  to  the  de- 
mandant of  the  tenant's  prior  unrecorded  deed,  and  as  to  the  right  of 
the  tenant  to  maintain  his  title  thereby,  the  court  properly  instructed 

the  jury." 

In  Lamb  v.  Pierce,  113  Mass.  72,  the  defendant  relied  upon  an  un- 
recorded deed.  It  was  said  at  page  74:  "This  statute  requires  that 
the  plaintiff  must  be  shown  to  have  had  actual  notice  that  there  had 
been  a  conveyance  to  the  defendant  of  the  estate.  *  *  *  fhe  party 
who  claims  under  an  unrecorded  deed  must  prove  that  the  subsequent 
purchaser  had  actual  knowledge  or  notice  of  such  deed." 

In  all  these  cases  as  they  were  presented  the  burden  was  upon  the 
tenant  in  a  real  action,  or  upon  the  defendant  in  an  action  of  trespass, 
and  hence  what  has  been  quoted  from  these  opinions  is  precisely  ap- 
plicable to  the  case  at  bar.  It  also  is  said  in  Jackson  on  Real  Actions, 
p.  158:  "If  the  defendant  *  *  *  undertakes  to  show  a  better  title 
in  himself,  then  he  becomes  the  actor,  and  must  show  his  title  with 
the  same  certainty  that  was  before  required  of  the  plaintiff." 

The  case  is  somewhat  analogous  to  insurance  policies,  where  the 
burden  of  showing  that  death  or  accident  resulted  from  excepted  or 
prohibited  risks  added  to  the  main  contract  by  way  of  proviso  rests 
upon  the  insurer.  Nichols  v.  Commercial  Travelers'  Ass'n,  221  Mass. 
540,  and  cases  collected  at  546,  109  N.  E.  449.  It  is  not  unlike  the 
classification  of  goods  as  inflammable  under  exceptions  in  a  bill  of 
lading,  the  burden  of  proving  which  rests  upon  the  carrier. .  A.  J. 
Tower  Co.  v.  Southern  Pacific  Co.,  184  Mass.  472,  69  N.  E.  348.  It  is 
distinguishable  from  cases  arising  under  the  negotiable  instruments  act, 
where  by  the  statute  the  burden  of  proving  want  of  notice  of  in- 
firmity in  note  is  cast  upon  the  holder,  PhilUps  v.  Eldridge,  221  Mass. 
103,  108  N.  E.  909,  and  from  cases  where  the  matter  of  defense,  though 
apparently  somewhat  special,  really  strikes  at  the  root  of  a  fact  es- 
sential to  the  support  of  the  plaintiff's  case.  Central  Bridge  v.  Butler, 
2  Gray,  130;    Sohier  v.  Norwich  Fire  Ins.  Co.,  11  Allen,  336-338; 


Sec.  1)  THE   BURDEN  OF  PROOF  87 

Cohen  v.  Longarini,  207  Mass.  556,  93  N.  E.  702.  The  case  at  bar  also 
is  distinguishable  from  the  decision  as  to  waiver  of  his  rights  by  the 
respondent  or  estoppel  against  asserting  them,  the  burden  of  proving 
which  was  held  when  the  case  was  here  before  to  be  upon  the  peti- 
tioner. That  was  an  affirmative  issue,  and  the  burden  rested  upon 
the  one  who  set  it  up,  namely,  upon  the  petitioner. 

The  result  is  that  the  burden  of  proving  the  issue  in  the  case  at  bar 
rested  upon  the  respondent. 

Exceptions  sustained.'^* 


CUBA  R.  CO.  V.  CROSBY. 

'Supreme  Court  of  the  United  States,  1912.     222  U.  S.  473,  32  Sup.  Ct.  132, 
5G  L.  Ed.  274,  38  L.  R.  A.  [N.  S.]  40.) 

Mr.  Justice  Holmes  ^^  delivered  the  opinion  of  the  court: 

This  is  an  action  for  the  loss  of  a  hand  through  a  defect  in  ma- 
chinery, in  connection  with  which  the  defendant  in  error,  the  plaintiff, 
was  employed.  The  plaintiff  had  noticed  the  defect  and  reported  it, 
and,  according  to  his  testimony,  had  been  promised  that  it  should  be 
repaired  or  replaced  as  soon  as  they  had  time,  and  he  had  been  told 
to  go  on  in  the  meanwhile.  The  jury  was  instructed  that  if  that  was 
what  took  place,  the  defendant  company  assumed  the  risk  for  a  rea- 
sonable time,  and,  in  effect,  that  if  that  time  had  not  expired,  the  plain- 
tiff was  entitled  to  recover.  The  jury  found  for  the  plaintiff'.  The 
accident  took  place  in  Cuba,  and  no  evidence  was  given  as  to  the  Cuban 
law,  but  the  judge  held  that  if  that  law  was  different  from  the  lex  fori, 
it  was  for  the  defendant  to  allege  and  prove  it,  and  that  as  it  had  plead- 
ed only  the  general  issue,  the  verdict  must  stand.  (C.  C.)  158  Fed.  144. 
The  judgment  was  affirmed  by  a  majority  of  the  circuit  court  of 
appeals.    95  C.  C.  A.  539,  170  Fed.  369. 

The  court  below  went  on  the  ground  that,  in  the  absence  of  evidence 
to  the  contrary,  it  would  "apply  the  law  as  it  conceives  it  to  be,  accord- 
ing to  its  idea  of  right  and  justice;  or,  in  other  words,  according  to 
the  law  of  the  forum."  We  regard  this  statement  as  too  broad,  and  as 
having  been  wrongly  applied  to  this  case. 

It  may  be  that,  in  dealing  with  rudimentary  contracts  or  torts  made 
or  committed  abroad,  such  as  promises  to  pay  money  for  goods  or 
services,  or  battery  of  the  person,  or  conversion  of  goods,  courts  would 
assume  a  liability  to  exist  if  nothing  to  the  contrary  appeared.     Par- 

74  For  the  burden  in  fraud  cases  where  the  question  of  purchaser  for  value 
without  notice  is  involved,  see  cases  collected  in  note  to  Pelham  v.  Chatta- 
hoochee Grocery  Co.,  8  L.  R.  A.  (N.  S.)  448  (190G).  That  the  defense  of  pur- 
chaser for  value  without  notice  of  an  equity  is  to  be  allirmatively  established 
by  tlie  one  reiving  on  it,  see  Wright-Blodgett  Co.  v.  U.  S.,  236  U.  S.  397,  35 
Sup.  Ct.  339,  59  L.  Ed.  637  (1915) ;  Krueger  v.  U.  S.,  246  U.  S.  69,  38  Sup. 
Ct.  262,  62  L.  Ed.  582  (1917). 

76  Part  of  opinion  omitted. 


S8  THE  COURT  AND  THE  JURY  (Cll.  1 

rot  V.  Mexican  C.  R.  Co.,  207  Mass.  184,  34  L.  R.  A.  (N.  S.)  261,  93 
N.  E.  590.  Such  matters  are  likely  to  impose  an  obligation  in  all 
civilized  countries.  But  when  an  action  is  brought  upon  a  cause  aris- 
ing outside  of  the  jurisdiction,  it  always  should  be  borne  in  mind  that 
the  duty  of  the  court  is  not  to  administer  its  notion  of  justice,  but  to 
enforce  an  olDligation  that  has  been  created  by  a  different  law.  Slater 
V.  Mexican  Nat.  R.  Co.,  194  U.  S.  120,  126,  48  L.  Ed.  900,  902,  24 
Sup.  Ct.  581.  The  law  of  the  forum  is  material  only  as  setting 
a  limit  of  policy  beyond  which  such  obligations  will  not  be  enforced 
there.  With  very  rare  exceptions  the  liabilities  of  parties  to  each 
other  are  fixed  by  ihe  law  of  the  territorial  jurisdiction  within  which 
the  wrong  is  done  and  the  parties  are  at  the  time  of  doing  it.  Amer- 
ican Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347,  356,  53  L.  Ed.  826, 
832,  29  Sup.  Ct.  511,  16  Ann.  Cas.  1047.  See  Bean  v.  Morris,  221  U. 
S.  485,  486,  487,  55  L.  Ed.  821,  823,  31  Sup.  Ct.  703.  That,  and  that 
alone,  is  the  foundation  of  their  rights.     *     *     * 

We  repeat  that  the  only  justification  for  allowing  a  party  to  recover 
when  the  cause  of  action  arose  in  another  civilized  jurisdiction  is  a 
well-founded  belief  that  it  was  a  cause  of  action  in  that  place.  The 
right  to  recover  stands  upon  that  as  its  necessary  foundation.  It  is 
part  of  the  plaintiff's  case,  and  if  there  is  reason  for  doubt,  he  must 
allege  and  prove  it.  The  extension  of  the  hospitality  of  our  courts 
to  foreign  suitors  must  not  be  made  a  cover  for  injustice  to  the  de- 
fendants of  whom  they  happen  to  be  able  to  lay  hold. 

In  the  case  at  bar  the  court  was  dealing  with  the  law  of  Cuba,  a 
country  inheriting  the  law  of  Spain,  and,  we  may  presume,  continu-  ^ 
ing  it  with  such  modifications  as  later  years  may  have  brought.  There 
is  no  general  presumption  that  that  law  is  the  same  as  the  common 
law.  We  properly  may  say  that  we  all  know  the  fact  to  be  otherwise. 
Goodyear  Tire  &  Rubber  Co.  v.  Rubber  Tire  Wheel  Co.  (C.  C.)  164 
Fed.  869.  Whatever  presumption  there  is  is  purely  one  of  fact,  that 
may  be  corrected  by  proof.  Therefore  the  presumption  should  be  lim- 
ited to  cases  in  which  it  reasonably  may  be  believed  to  express  the 
fact.  Generally  speaking,  as  between  two  common-law  countries,  the 
common  law  of  one  reasonably  may  be  presumed  to  be  what  it  is  de- 
cided to  be  in  the  other,  in  a  case  tried  in  the  latter  state.  But  a 
statute  of  one  would  not  be  presumed  to  correspond  to  a  staiute  in 
the  other,  and  when  we  leave  common-law  territory  for  that  where  a 
different  system  prevails,  obviously  the  limits  must  be  narrower  still. 
Savage  v.  O'Neil,  44  N.  Y.  298;  Crashley  v.  Press  Pub.  Co.,  179  N.  Y. 
27,  32,  33,  71  N.  E.  258,  1  Ann.  Cas.  196;  Aslanian  v.  Dostumian, 
174  Mass.  328,  331,  47  L.  R.  A.  495,  75  Am.  St.  Rep.  348,  54  N.  E.  845. 

Even  if  we  should  presume  that  an  employee  could  recover  in  Cuba 
if  injured  by  machinery  left  defective  through  the  negligence  of  his 
employer's  servants,  which  would  be  gomg  far,  that  would  not  be 
enough.  The  plaintiff  recovered,  or,  under  the  instructions  stated  at 
the  beginning  of  this  decision,  at  least  may  have  recovered,  notwith- 


Sec.  2)  JUDICIAL  NOTICE  89 

standing  his  knowledge  and  appreciation  of  the  danger,  on  the  strength 
of  a  doctrine  the  peculiarity  and  difficulties  of  which  are  elaborately 
displayed  in  the  treatise  of  Mr,  Labatt.  1  Labatt,  Mast.  &  S.  chap. 
22,  esp.  §  424.  To  say  that  a  promise  to  repair  or  replace  throws  the 
risk  on  the  master  until  the  time  for  performance  has  gone  by,  or  that 
it  does  away  with  or  leaves  to  the  jury  what  otherwise  would  be  neg- 
ligence as  matter  of  law,  is  evidence  of  the  great  consideration  with 
which  workmen  are  treated  here,  but  cannot  be  deemed  a  necessary 
incident  of  all  civilized  codes.  It  could  not  be  assumed  without  proof 
that  the  defendant  was  subject  to  such  a  rule. 

There  was  some  suggestion  below  that  there  would  be  hardship  in 
requiring  the  plaintiff  to  prove  his  case.  But  it  should  be  remember- 
ed that  parties  do  not  enter  into  civil  relations  in  foreign  jurisdictions 
in.  reliance  upon  our  courts.  They  could  not  complain  if  our  courts 
refused  to  meddle  with  their  affairs,  and  remitted  them  to  the  place 
that  established  and  would  enforce  their  rights.  A  discretion  is  as- 
serted in  some  cases  even  when  the  policy  of  our  law  is  not  opposed 
to  the  claim.  The  Maggie  Hammond,  9  Wall.  435,  19  L.  Ed.  772. 
The  only  just  ground  for  complaint  would  be  if  their  rights  and  lia- 
bilities, when  enforced  by  our  courts,  should  be  measured  by  a  differ- 
ent rule  from  that  under  which  the  parties  dealt. 

Judgment  reversed/' 


SECTION  2.— JUDICIAL  NOTICE 


FOSTER  V.  LEONARD. 

(Court  of  Queen's  Bench,  1581.     Cro.  Eliz.  1.) 

Attachment  upon  prohibition  against  the  defendant,  farmer  of 
the  Parsonage  of  Sevenoak  in  Kent,  for  suing  for  tithes  of  great  wood, 
by  the  name  of  silva  csedua,  against  the  45  Edw.  3.  c.  3.  The  defend- 
ant pleaded,  that  for  300  loads  of  the  trees,  they  were  of  birch,  of 
which  by  law  he  ought  to  have  tithes  as  silva  caedua;  and  as  to  the 
rest,  which  were  of  oak  and  elm,  they  were  under  the  growth  of  twen- 
ty years.  Upon  the  first  it  was  demurred  in  law,  and  upon  the  sec- 
ond plea  they  were  at  issue.  After  argument  upon  the  first  point  by 
Clerk  and  Weeks  of  the  one  side,  and  by  Fuller  and  Tanfield  of  the 
other,  it  was  adjudged  for  the  defendant,  that  he  shall  have  tithes  of 
birch;    for  birch  is  not  such  wood  as  the  statute  intends  by  the  name 

7  6  For  common-law  jurisdictions  it  will  be  presumed  that  the  foreign  com-/ 
mon  law,  but  not  the  statutory  law,  is  the  same  as  the  local  law.  Cherry  vj 
Sprague,  187  Mass.  113,  72  N.  E.  456,  67  L.  R.  A.  33,  105  Am.  St.  Rep.  3Sl|, 
(1904),  annotated  case. 

See,  also,  article  by  Professor  Kales,  19  H.  L.  R.  401,  on  "Presumptions 
as  to  Foreign  Law." 


90  THE  COURT  AND  THE  JURY  (Ch.  1 

of  gross  bois,  for  it  is  intended  of  such  wood  as  serveth  for  building, 
and  other  uses  of  a  high  nature,  and  not  only  for  fuel,  as  the  nature 
of  birch  is.  And  of  oak  and  elm  cut  down  before  the  age  of  twenty- 
years,  tithes  shall  be  paid ;  for  until  that  age  they  are  not  of  such  value 
as  the  law  regardeth  for  the  purposes  aforesaid.  Therefore,  as  to  the 
birch,  it  was  awarded  he  should  have  a  consultation;  he  having  en- 
tered a  non  vult  ulterius  prosequi  for  the  residue. 


PAGE  V.  FAUCET. 

(Court  of  Queen's  Bench,  1587.     Cro.  Eliz.  227.) 

Error  of  a  judgment  given  in  Lynne.  The  error  assigned  was,  that 
tlie  judgment  was  given  at  a  Court  held  there  16  February,  26  Eliz. 
and  this  day  was  Sunday,  see  29  Car.  2,  c.  7,  and  it  was  so  found  by 
the  examination  of  the  almanacks  of  that  year.  And  it  was  ruled,  that 
this  examination  was  sufficient,  and  a  trial  per  pais  was  not  necessary,, 
although  it  were  an  error  in  fact.    And  the  judgment  was  reversed. 


JONES  V.  DAVERS. 

(Court  of  Queen's  Bench,  1596.     Cro.  Eliz.  496.) 

The  plaintiff,  being  register  to  the  Bishop  of  Gloucester,  brought 
an  action  upon  the  case;  and  declares,  that  the  defendant  dixit  et 
propalavit  hasc  Latina  verba  in  prassentia  diversorum,  qui  intellexe- 
runt  Romanam  linguam,  viz.  "inimicus  meus  (innuendo  the  plaintiff) 
is  an  extortioner,"  and  divers  other  slanderous  words,  which  were 
clearly  actionable.  The  defendant  pleaded  a  vicious  bar;  and  it  was 
thereupon  demurred.  But  now  Snagg  for  the  defendant  moved,  that 
upon  this  declaration  the  plaintiff  ought  not  to  recover.  First,  it  is 
supposed  that  the  defendant  spoke  slanderous  words  in  Latin,  in 
prsesentia  diversorum  who  understood  linguam  Romanam,  which  well 
may  be ;  for  lingua  Romana  at  this  day  intends  the  Italian  tongue,  and 
not  the  Latin  tongue.  And  then,  if  the  words  were  spoken  in  the  pres- 
ence of  those  who  understood  not  that  tongue,  the  action  clearly  is 
not  maintainable ;  for  it  was  not  slanderous  where  none  understood  it 
And  therefore  it  was  adjudged  in  the  Exchequer,  where  one  spake 
divers  slanderous  words  in  the  Welsh  tongue,  the  action  lay  not,  with- 
out averring  them  to  be  spoken  in  the  presence  of  those  who  under- 
stood the  Welsh  tongue.  And  of  that  opinion  was  the  whole  Court, 
that  if  it  might  be  intended  that  the  Latin  and  Roman  tongues  dif- 
fered (as  at  this  time  it  seemeth  they  differ;  for  the  Roman  tongue 
now  used  may  be  intended  the  Italian  tongue),  then  the  action  Ues 
not."     *     ♦     * 

T7  Part  of  case  is  omitted. 


Sec.  2)  JUDICIAL  NOTICE  91 

MAKARELL  v.  BACHELOR. 

(Court  of  Queen's  Bench,  159S.     Cro.  Eliz.  583.) 

Debt  upon  divers  contracts;  all  for  apparel :  some  for  fustian  suits, 
some  tor  velvet  and  satin  suits  laced  with  gold  lace,  amounting  to 
£44.  Whereof  he  was  satisfied  £4.  The  defendant  pleaded  infancy. 
The  plaintiff  replied,  that  he  was  one  of  the  gentlemen  of  the  chamber 
to  the  Earl  of  Essex ;  and  so  it  was  for  his  necessary  apparel.  And  it 
was  thereupon  demurred.  The  Court  Jagid^that  they  were  to  adjudge 
what  was  necessary  apparel ;  and  such  suits  of  satin  and  velvet  cannot 
beVecessary  for  an  infant,  although  he  be  a  gentleman,  &c.  It  was 
then  prayed,  that  he  might  have  judgment  for  those  which  were  nec- 
essary apparel.  But  the  Court  held,  in  regard  he  had  acknowledged 
satisfaction  for  £4.  parcel,  &c.  and  they  did  not  know  wherefore  it 
was  payed,  therefore  he  could  not  have  judgment  for  any  part;  other- 
wise he  should  have  judgment  for  those  contracts  which  were  allowed 
of,  &:c.    Wherefore,  &c.^* 

T  8  Notice  that  at  this  time  juries  might  decide  on  their  own  knowledge. 
See  Bushell's  Case,  ante,  p.  7.  For  a  modern  statement,  see  the  following 
extract  from  the  opinion  of  Willes,  J.,  in  Ryder  v.  Wombwell,  L.  R.  4  Exch. 
32,  (1S6S):  "The  Lord  Chief  Baron,  in  his  judgment,  questions  whether 
under  any  circumstances  it  is  competent  to  the  judge  to  determine  as  a 
matter  of  law,  whether  particular  articles  are  or  are  not  to  be  deemed 
necessaries  suitable  to  the  estate  and  condition  of  an  infant,  and  whether, 
if  in  any  case  the  judge  may  so  determine,  his  jurisdiction  is  not  limited 
to  those  cases  in  which  it  is  clear  and  obvious  that  the  articles  in  question 
not  merely  are  not,  but  cannot,  be  necessaries  to  any  one  of  any  rank,  or 
fortune,  or  condition  whatever?  This  is  an  important  principle  which,  if- 
correct,  fully  supports  the  judgment  below,  but  we  cannot  assent  to  it. 
We  quite  agree  that  the  judges  are  not  to  determine  facts,  and  therefore 
where  evidence  is  given  as  to  any  facts  the  jury  must  determine  whether  ^ 
they  believe  it  or  not.  But  the  judges  do  know,  as  much  as  juries,  •svhac  is  ^ 
the  usual  and  normal  state  of  things,  and  consequently  whether  any  par-  | 
ticular  article  is  of  such  a  description  as  that  it  may  be  a  necessary  under 
such  usual  state  of  tilings.  If  a  state  of  thing  exist  (as  well  it  may)  so  new 
or  so  exceptional  that  the  judges  do  not  know  of  it,  that  may  be  proved  as  a 
fact,  and  then  it  will  be  for  the  jury  under  a  proper  direction  to  decide  the 
case.  But  it  seems  to  us  that  if  we  were  to  say  that  in  every  case  the  jury 
are  to  be  at  liberty  to  find  anything  to  be  a  necessary,  on  the  ground  that 
there  may  be  some  usage  of  society,  not  proved  in  evidence  and  not  known 
to  the  Court,  but  which  it  is  suggested  that  the  jury  may  know,  we  should 
in  effect  say  that  the  question  for  the  jury  was  whether  it  was  shabby  in 
the  defendant  to  plead  infancy.  We  think  the  judges  must  determine  wheth- 
er the  case  is  such  as  to  cast  on  the  plaintiff  the  onus  of  proving  that  the 
articles  are  within  the  exception,  and  then  whether  there  is  any  sufficient 
evidence  to  satisfy  that  onus.  In  the  judgment  of  Bramwell,  B.,  in  the 
Court  below,  many  instances  are  put  well  illustrating  the  necessity  of  such 
a  rule.  It  is  enough  for  the  decision  of  this  case  if  we  hold  that  such  ar- 
ticles as  are  here  described  are  not  prima  facie  necessary  for  maintaining 
a  young  man  in  any  station  of  life,  and  that  the  burden  lay!  on  the  plaintiff 
to  give  evidence  of  something  peculiar  makmg  them  necessaries  in  this 
special  case,  and  that  he  has  given  no  evidence  at  all  to  that  effect." 

Notice  the  difference  in  results,  where  the  judge  decides  on  his  own  gen- 
eral knowledge,  as  in  the  principal  case,  and  where  the  jury  are  allowed 
to  decide  on  their  general  knowledge,  as  in  certain  instances  indicated  in  the 
note  to  Bushell's  Case,  ante,  p.  7. 


92        --  THE  COURT  AND  THE  JURY  (Ch.  1 

MacKELLY'S  CASE. 

(Court  of  King's  Bendi,  1612.     1  Rolle,  Abr.  524.) 

If  a  man  should  be  indicted  for  the  kilHng  of  a  sergeant  of  Lon- 
don while  executing  process  of  the  King  on  the  18th  day  of  Novem- 
ber, between  the  hours  of  five  and  six,  though  in  truth  this  time  in 
November  is  a  part  of  the  night,  yet  the  court  is  not  held  ex  officio  to 
take  notice  of  this  ^®  (a  prendre  conusans  de  ceo),  any  more  than  in 
a  case  of  burglary,  without  the  words,  in  nocte  ejusdem  diei,  or  noc- 
tanter. 


HODGES  v.  STEWARD. 
(Court  of   King's  Bench,   1692.     1   Salk.   125.) 

In  an  action  on  the  case  on  an  inland  bill  of  exchange  brought  by 
the  indorsee  against  the  drawer,  these  following  points  were  resolved: 

1st.  A  difference  was  taken  between  a  bill  payable  to  J.  S.  or  bear- 
er, and  J.  S.  or  order;  for  a  bill  payable  to  J.  S.  or  bearer  is  not  as- 
signable by  the  contract  so  as  to  enable  the  indorsee  to  bring  an  ac- 
tion, if  the  drawer  refuse  to  pay,  because  there  is  no  such  authority 
given  to  the  party  by  the  first  contract,  and  the  effect  of  it  is  only  to 
discharge  the  drawee,  if  he  pays  it  to  the  bearer,  though  he  comes  to 
it  by  trover,  theft,  or  otherwise.  But  when  the  bill  is  payable  to  J. 
S.  or  order,  there  an  express  power  is  given  to  the  party  to  assign,  and 
the  indorsee  may  maintain  an  action.     *    *    * 

4thly.  The  plaintiff  declared  on  a  special  custom  in  London  for  the 
bearer  to  have  this  action.  To  which  the  defendant  demurred,  with- 
out traversing  the  custom;  so  that  he  confessed  it,  whereas  in  truth 
there  was  no  such  custom ;  and  the  court  was  of  opinion,  that  for  this 
reason  judgment  should  be  given  for  the  plaintiff;  for  though  the 
Court  is  to  take  notice  of  the  law  of  merchants  as  part  of  the  law  of 
England,  yet  they  cannot  take  notice  of  the  custom  of  particular  places ; 
and  the  custom  in  the  declaration  being  sufficient  to  maintain  the  ac- 
tion, and  that  being  confessed,  he  had  admitted  judgment  against  him- 

gglf  80      *      *      * 

Judgment  pro  quer."* 

7  8  See  same  notion  applied  in  Amory  v.  McGregor,  12  Johns.  (K.  T.)  287 
(1815),  to  the  effect  that  an  allegation  that  a  contract  was  made  in  July, 
1812,  was  not  equivalent  to  an  allegation  that  it  was  made  during  the  War 
of  1812. 

80  Part  of  case  omitted. 

81  In  Argyle  v.  Hunt,  1  Strange,  187  (1719),  it  was  said:  "It  is  true,  these 
words  appear  to  be  spoke  in  Ix)ndon,  but  how  does  the  custom  of  London 
appear  to  us?  There  is  nothing  of  that  in  the  libel,  and  though  we  have 
such  a  private  knowledge  of  it,  that  upon  motion  we  do  not  put  the  party 
•to  produce  an  affidavit,  because  the  other  side  never  disputes  it ;  yet  we 
cannot  judicially  take  notice  of  it,  and  if  any  body  will  insist  on  an  affi- 


Sec.  2)  JUDICIAL  NOTICE  93 

HENRY  V.  COLE. 

(Court  of  Queen's  Bench,  1702.     2  Ld.  Raym.  811.) 

Upon  issue  joined  in  an  action,  the  -/vrit  of  nisi  prius  was  award- 
ed in  the  name  of  the  King,  and  then  entry  was  made  upon  the  rec- 
ord, that  before  the  day  in  bank  the  King  died;  and  at  the  day  in 
bank  the  writ  is  returned  by  the  justices  of  the  Queen.  And  Mr. 
Ward  moved,  that  it  did  not  appear,  that  the  King  died  before  the  day 
of  nisi  prius ;  and  if  not,  the  execution  of  the  writ  by  the  justices  of 
the  Queen  was  erroneous.  Sed  non  allocatur.  For,  per  curiam,  they 
will  take  notice  on  what  day  the  King  died,  which  was  the  eighth  of 
March,  and  consequently  before  the  twenty-seventh  of  April,  which 
was  the  day  of  nisi  prius.  And  therefore  the  execution  of  the  writ  by 
the  justices  of  the  Queen  good.  And  judgment  was  given  for  the 
plaintiff.     See  the  late  act  of  parliament. 


DEYBEL'S  CASE. 

(CoTirt  of  King's  Bench,  1S21.     4  Barn.  &  Aid.  243.) 

The  prisoner,  an  impressed  seaman,  was  brought  up  by  virtue  of 
a  writ  of  habeas  corpus,  directed  to  the  admiral  of  the  fleet  at  Chat- 
ham. The  return  to  the  writ  stated,  that,  on  the  28th  November,  1820. 
a  certain  foreign  smuggling  vessel,  called  the  George,  of  Flushing,  on 
board  of  which  were  divers,  to  wit,  six  subjects  of  his  majesty,  be- 
ing mariners,  was  found  and  discovered  by  the  commander  and  crew 
of  his  majesty's  revenue  cruiser,  called  The  Griper,  to  have  been  and 
to  be  within  eight  leagues  of  that  part  of  the  coast  of  Great  Britain 
called  Suffolk,  that  is  to  say,  within  eight  leagues  of  Orfordness,  in 
the  county  of  Suffolk,  having  then  and  there  on  board  thereof  divers 
large  quantities  of  foreign  spirits,  tea,  and  tobacco.  [The  return  fur- 
ther stated  that  the  prisoner  was  arrested  on  said  vessel,  etc.  Lawes, 
Sergt.,  objected  to  the  return  because  it  did  not  appear  that  the  ship 
was  at  the  time  within  the  limits  fixed  by  59  G.  3,  c.  121,  §  1.] 

BaylEy,  J.^^  It  is  quite  true,  that  this  court  will  take  judicial  notice 
of  the  general  division  of  the  kingdom  into  counties,  because  they  are 
continually  in  the  habit  of  directing  their  process  to  the  sheriff's  of 
those  counties,  and  because  they  are  mentioned  in  a  great  variety  of 
acts  of  parliament.  But  still,  I  think,  that  the  present  return  is  in- 
sufficient. In  these  cases,  the  greatest  certainty  is  requisite;  for  the 
court  must  see,  distinctly,  that  the  party  who  is  brought  up  is  justly 

davit,  we  must  have  it  in  every  case.  It  was  never  known,  that  the  court 
judicially  take  notice  of  private  customs,  but  they  are  always  specially  re- 
turned." 

^-  Opinions  of  Holroyd  and  Best,  J  J.,  omitted. 


94  THE  COURT  AND  THE  JURY  (Cll.  1 

deprived  of  his  liberty.  Now  the  act  of  parhament  says,  that  a  party 
may  be  properly  detained  in  custody,  if  he  is  found  on  board  a  vessel 
within  four  leagues  of  the  coast  between  the  North  Foreland  and 
Beachy-Head,  or  within  eight  leagues  of  any  other  part  of  the  coast. 
This  return  does  not  follow  the  words  of  the  act  of  parliament,  but 
states,  that  the  vessel  was  discovered,  not  within  eight  leagues  of  the 
coast  of  the  county  of  Suffolk,  but  within  eight  leagues  of  a  place  in 
a  part  of  the  coast  called  Suffolk.  Now  I  cannot  say,  judicially,  that 
there  is  no  place  on  the  coast  between  the  North  Foreland  and  Beachy- 
Head,  which  is  called  Suffolk,  and  therefore,  if  it  had  stopped  there, 
it  seems  to  me,  that  this  return  would  have  been  insufficient.  But  it 
is  said,  that  there  is  an  additional  averment,  stating,  that  the  vessel  was 
discovered  within  eight  leagues  of  Orfordness,  in  the  county  of  Suf- 
folk. I  have  before  said,  that  this  court  will  take  judicial  notice  of 
the  general  divisions  of  counties,  but  that  cannot  be  extended  to  the 
particular  parts  of  counties  and  their  local  situation.  We  know  very 
well,  that  there  are  many  parts  of  counties  separated  from  the  general 
body  of  the  county.  There  is  a  part  of  the  county  of  Durham  which 
is  situated  to  the  north  of  Northumberland,  and  so  the  parish  of 
Creyke,  belonging  to  the  same  county,  is  surrounded  by  the  North 
Riding  of  Yorkshire ;  and  there  are  many  other  parts  of  other  coun- 
ties similarly  situated.  The  court,  therefore,  cannot  judicially  know, 
whether  Orfordness,  which  is  averred  to  be  part  of  the  county  of 
Suffolk,  may  not  be  an  isolated  part  of  it,  situated  on  the  coast  be- 
tween the  North  Foreland  and  Beachy-Head ;  and  if  so,  there  is  noth- 
ing on  this  return  to  show,  that  the  vessel  was  discovered  within  the 
limits  mentioned  in  the  act  of  parliament.  The  proper  course  would 
have  been,  to  have  stated,  negatively,  that  the  vessel  was  found  with- 
in eight  leagues  of  a  part  of  the  coast  of  Great  Britain,  not  between 
the  North  Foreland  and  Beachy-Head,  to  wit,  within  eight  leagues  of 
Orfordness,  in  the  county  of  Suffolk.  The  present  return,  however, 
is  insufficient,  and  the  prisoner  must  be  discharged. 
The  prisoner  was  discharged. 


83 


8  3  In  Kearney  v.  King,  2  B.  &  A.  301  (1819),  tlie  same  court  refused  to 
take  notice  that  there  was  but  one  Dublin,  viz.,  that  in  Ireland.  In  Humph- 
reys V.  Budd,  9  Dowling,  1000  (1841),  on  a  motion  to  set  aside  service  of 
process,  the  court  refused  to  take  notice  that  there  was  no  such  place  as 
Holborn  in  the  county  of  Surrey.  In  Brun  v.  P.  Nacey  Co.,  2G7  111.  353,  108 
]S(.  E.  801  (1915),  the  court  required  proof  that  ai  point  on  a  certain  street 
was  within  the  city  limits  at  a  certain  time. 


Sec.  2)  JUDICIAL  NOTICE  95 


KING  V.  GALLUN  et  al. 

(Supreme  Court  of  the  United   States,  18S3.     109  U.   S.  99,  3   Sup.   Ct.  85, 

27  L.  Ed.  870.) 

Woods,  J.®*  We  are  of  opinion  that  the  patent  of  complainant  does 
not  describe  a  patentable  invention.  The  claim  is  for  an  article  of 
manufacture,  to-wit,  a  bale  of  plasterers'  hair  consisting  of  several 
bundles  inclosed  in  bags,  and  compressed  and  secured  to  form  a  pack- 
age. It  is  evident  that  the  patent  does  not  cover  any  improvement 
in  the  quality  of  the  hair.  Its  qualities  are  unchanged.  It  does  nol 
cover  the  packing  of  the  hair  into  parcels,  or  the  size,  shape,  or  weight 
of  the  parcels,  nor  the  compression  of  the  parcels  separately.  Nor 
does  it  cover  the  material  of  the  bags  which  constitute  the  outer  cov- 
ering of  the  parcels.  Complainant  claims  none  of  these  thmgs  as  se- 
cured by  his  patent.  The  packing  of  hair  and  other  articles  in  par- 
cels of  the  same  shape,  size,  and  weight,  and  the  compression  of  the 
several  parcels,  has  from  time  immemorial  been  in  common  use.  Nei- 
ther does  complainant  contend  that  his  patent  covers  a  single  parcel  or 
package  of  hair.  All,  therefore,  that  the  patent  can  cover  is  simply  an 
article  of  manufacture  resulting  from  the  compression  and  tying  to- 
gether in  one  bale  of  several  similar  parcels  or  packages  of  plasterers' 
hair.  The  object  of  this  invention  is  thus  set  out  in  the  specification: 
"For  the  convenience  of  the  trade" — that  is  to  say,  to  enable  the 
retail  dealer  more  easily  to  parcel  out  the  hair  in  quantities  to  suit  his 
customers — "I  propose  to  form  the  hair  in  small  bundles  of  one  bushel 
each,  and  with  several  bundles  into  a  bale  of  convenient  size  for  trans- 
portation." The  invention  and  the  object  to  be  accomplished  by  it  are 
thus  seen  to  be  contained  within  narrow  limits. 

In  deciding  whether  the  patent  covers  an  article,  the  making  of  ' 
which  requires  invention,  we  are  not  required  to  shut  our  eyes  to  mat-  | 
ters  of  common  knowledge,  or  things  in  common  use.    Brown  v.  Piper, ' 
91  U.  S.  43,  23  L.  Ed.  200;   Terhune  v.  Phillips,  99  U.  S.  592,  25  L. 
Ed.  293 ;  Ah  Kow  v.  Nunan,  5  Sawy.  552,  Fed.  Gas.  No.  6546. 

The  subdivision  and  packing  of  articles  of  commerce  into  small  par- 
cels for  convenience  of  handling  and  retail  sale,  and  the  packing  of 
these  small  parcels  into  boxes  or  sacks,  or  tying  them  together  in 
bundles  for  convenience  of  storage  and  transportation,  is  as  common 
and  well  known  as  any  fact  connected  with  trade.  This  well-known 
practice  is  applied,  for  instance,  to  fine-cut  chewing  and  fine-cut 
smoking  tobacco,  to  ground  coffee  and  spices,  oatmeal,  starch,  farina, 
desiccated  vegetables,  and  a  great  number  of  other  articles.  This 
practice  having  been  common  and  long  known,  it  follows  that  there 
is  nothing  left  for  the  patent  of  complainant  to  cover  but  the  com- 
pression of  the  bale  formed  of  several  smaller  parcels.  Can  this  be 
dignified  by  the  name  of  invention?  When  the  contents  of  tlie  small- 
s'* Statement  omitted. 


96  THE  COURT  AND  THE  JURY  (Ch.  1 

er  parcels  are  such  as  to  admit  of  compression  into  a  smaller  com- 
pass, the  idea  of  compressing  the  bale  of  the  smaller  parcels  for  trans- 
portation and  storage  would  occur  to  any  mind.  There  is  as  little 
invention  in  compressing  a  bale  of  several  parcels  of  hair  tied  up  to- 
gether, as  in  compressing  one  large  parcel  of  the  same  commodity. 
But  it  is  perfectly  well  known  that  the  compression  of  several  pack- 
ages of  the  same  thing  into  larger  packages  or  bundles  is  not  new, 
and  that  it  has  long  been  commonly  practiced.  Packages  of  wooj, 
feathers,  and  plug  tobacco  have  been  so  treated.  The  case  of  plug 
tobacco  is  a  familiar  instance.  The  plugs  are  formed  so  as  to  retain 
their  identity  and  shape,  the  outer  leaves  of  the  pl:ig  forming  at  the 
same  time  a  part  of  the  plug  as  well  as  its  covering.  The  plugs,  after 
being  so  put  up  as  to  preserve  their  identity  under  pressure,  are,  as 
is  well  known,  placed  in  a  frame  and  subjected  to  pressure,  and  re- 
duced to  a  smaller  and  compact  mass,  which  is  then  boxed  up  and  is 
ready  for  market.  This  is  done  in  part  for  convenience  in  handling, 
transportation,  and  storage.  When  the  box  is  opened  by  the  retail 
dealer,  the  plugs  can  be  taken  out  separately  and  sold.  This  method 
of  treating  plug  tobacco  would  suggest  to  every  one  the  compression 
into  a  bale  of  distinct  packages  of  plasterers'  hair,  and  leaves  no  field 
for  invention  in  respect  to  the  matter  to  which  the  patent  of  com- 
plainant relates. 

In  view  of  the  facts  to  which  we  have  referred,  which  are  of  com- 
mon observation  and  knowledge,  we  are  of  opinion  that  the  article  of 
manufacture  described  in  the  specification  and  claim  of  the  complain- 
ant's patent  does  not  embody  invention,  and  that  the  patent  is  for 
that  reason  void. 

In  support  and  illustration  of  our  views,  we  refer  to  the  following 
cases  decided  by  this  court:  Hotchkiss  v.  Greenwood,  11  How.  248, 
13  L.  Ed.  683 ;  Phillips  v.  Page,  24  How.  167,  16  L.  Ed.  639 ;  Brown 
V.  Piper,  91  U.  S.  37,  23  L.  Ed.  200;  Terhune  v.  Phillips,  99  U.  S. 
592,  25  L.  Ed.  293 ;  Atlantic  Works  v.  Brady,  107  U.  S.  192,  2  Sup. 
Ct.  225,  27  L.  Ed.  438;  Slawson  v.  Grand  Street,  etc.,  R.  Co.,  107 
U.  S.  649,  2  Sup.  Ct.  663,  27  L.  Ed.  576. 

The  patent  of  complainant  cannot  be  sustained  by  the  authority  of 
the  case  of  Smith  v.  Goodyear  Dental  Vulcanite  Co.,  93  U.  S.  486,  23 
L.  Ed.  952,  where  the  court  said:  "The  invention  is  a  product  or 
manufacture  made  in  a  defined  manner.  It  is  not  a  product  alone, 
separate  from  the  process  by  which  it  is  created."  In  that  case  the 
invention  was  the  product  of  a  new  process  applied  to  old  materials. 
In  this  case  it  is  the  product  of  an  old  process  applied  to  old  materials. 

Judgment  affirmed.^" 

88  See,  also,  Brown  v.  Piper,  91  U.  S.  37,  23  L.  Ed.  200  (1875),  cold  storage 
process;  Phillips  v.  Detroit,  111  U.  S.  604,  4  Sup.  Ct.  580,  28  L.  Ed.  532 
(1884),  paving  process. 

Compare  Austin  v.  Tennessee,  179  U.  S.  343,  21  Sup.  Ct.  132,  45  L.  Ed. 
224  (1900),  where  the  same  court  refused  to  take  notice  that  cigarettes 
were  particularly  harmful. 


Sec.  2)  JUDICIAL   NOTICE  97 

COMMONWEALTH  v.  MARZYNSKI. 
(Supreme  Judicial  Court  of  Massachusetts,  1SS9.    149  Mass.  68,  21  N.  E.  228.) 

Complaint  on  the  Pub.  Sts.  c.  98,  §  2,  alleging  that  the  defendant, 
at  Boston,  on  July  22,  1888,  that  day  being  the  Lord's  day,  "did  keep 
open  his  shop  there  situate,  and  numbered  one  hundred  and  four  in 
Eliot  street,  for  the  purpose  of  doing  business  therein ;  the  same  not 
being  then  and  there  works  of  necessity  or  charity." 

At  the  trial  in  the  superior  court,  before  Dewey,  J.,  the  government 
called  several  witnesses,  showing  that  the  defendant  was  a  tobacconist ; 
that  his  shop  was  at  the  corner  of  Eliot  street  and  Tremont  street,  in 
Boston ;  and  that  he  kept  his  shop  open,  and  made  a  sale  of  cigars  and 
tobacco,  between  the  hours  of  eleven  o'clock  in  the  forenoon  and  four 
o'clock  in  the  afternoon  of  Sunday,  July  22,  1888,  that  day  being  the 
Lord's  day.  The  defendant  contended  that  he  had  a  right  to  keep  his 
shop  open  on  Lord's  day  for  thepurpose  of  selling  tobacco  and  cigars, 
and  called  Dr.  F.  A.  Harris,  and,  after  qualifying  him  as  an  expert, 
asked  him  numerous  questions  as  to  whether  or  not  tobacco  and  cigars, 
or  either  of  them,  were  drugs  or  medicines ;  and  as  to  whether  they 
had  any  medicinal  effect  upon  the  human  system ;  or  whether,  if  used 
for  pleasurable  purposes,  that  fact  deprived  them  of  medicinal  effect ; 
or  whether  the  fact  that  a  drug  is  thus  used  for  a  pleasurable  purpose 
makes  it  less  a  drug.  The  judge  excluded  all  of  these  questions ;  and 
the  defendant  excepted. 

The  defendant  offered  in  evidence  the  United  States  Dispensatory, 
for  the  purpose  of  showing  the  medicinal  effects  of  tobacco  as  therein 
described ;  but  the  judge  excluded  the  evidence,  and  the  defendant 
excepted. 

The  defendant  then  called  one  Benatuille,  and,  after  qualifying  him 
as  an  expert  in  the  manufacture  of  cigars,  proved  by  him  that  a  cigar 
is  made  of  leaf  tobacco. 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged  ex- 
ceptions.** 

Knowlton,  J.  The  defendant  was  prosecuted  for  having  kept  his  r ^  ^^ 
shop  open  upon  the  Lord's  day  for  the  purpose  of  doing  business  — ^ 
therein.  The  evidence  showed  that  he  was  a  tobacconist,  and  that  he 
kept  his  shop  open,  and  made  a  sale  of  tobacco  and  cigars,  on  the  day 
named  in  the  complaint.  We  understand  this  sale  to  have  included 
tobacco  and  cigars  in  a  single  transaction.  The  defendant  did  not 
contend  at  the  trial  "that  he  kept,  or  had  a  right  to  keep,  his  shop 
open  on  the  Lord's  day  for  any  other  purpose  than  that  of  selling 
tobacco  and  cigars."  The  jury  were  instructed,  in  substance,  that 
keepjng  one's  shop  open  to  sell  cigars  on  the  Lord's  day  would  sub- 

8  6  Statement  condensed. 
HiNT.Ev.— 7 


98  THE  COURT  AND  THE  JURY  (Cll.  1 

ject  him  to  conviction  of  the  offense  named  in  this  complaint,  and  the 
principal  question  in  the  case  is  whether  that  instruction  was  correct. 
Under  the  instruction  the  jury  must  have  found  that  the  defendant's 
purpose  was  to  sell  cigars,  and  in  this  aspect  of  the  case  the  evidence 
offered  in  regard  to  tobacco  was  immaterial.  The  act  complained  of 
was  keeping  open  the  shop,  not  making  the  sale,'  and  one  question 
arises  under  St.  1887,  c.  391,  §■  2,  which  amends  Pub.  St.  c.  98,  §  2, 
by  adding  a  provision  that  nothing  in  this  last  section  shall  be  held 
to  prohibit  certain  named  acts  and  kinds  of  business,  among  which  is 
"the  retail  sale  of  drugs  and  medicines."  If,  upon  the  facts  of  this 
case,  keeping  the  defendant's   shop  open  to  sell  cigars  was  merely 

(  keeping  it  open  to  sell  drugs  and  medicines,  the  instruction  was  erro- 
neous ;  but  if,  as  a  matter  of  law,  it  was  keeping  it  open  f Or  a  purpose 
other  than  that  of  selling  drugs  and  medicines,  the  instruction  was 
correct. 

Ordinarily,  whether  a  substance  or  article  comes  within  a  given  de- 
scription is  a  question  of  fact;  but  some  facts  are  so  obvious  and 
familiar  that  the  law  takes  notice  of  them,  and  receives  them  into  its 

.  own  domain.  If  the  proof  had  been  that  the  shop  was  kept  open  for 
the  purpose  of 'selling  guns  or  pistols,  it  would  hardly  be  contended 
that  the  judge  might  not  properly  have  ruled  that  the  sale  of  these  ar- 
ticles was  not  a  sale  of  drugs  or  medicines.  The  court  has  judicial 
knowledge  of  the  meaning  of  common  words,  and  may  well  rule  that 
guns  and  pistols  are  not  drugs  or  medicines,  and  may  exclude  the  opin- 
ion of  witnesses  who  offer  to  testify  that  they  are.  Com.  v.  Peck- 
ham,  2  Gray,  514;  Com.  v.  Crowley,  145  Mass.  430,  14  N.  E.  459. 
Cigars  are  manufactured  articles  familiar  to  everybody.  The  ma- 
terials of  which  they  are  composed  are  carefully  prepared  and  put  into 
form,  until  they  lose  their  original  character  as  mere  materials,  and 
become  articles  of  commerce,  known  by  a  new  name  and  adapted  to 

'  a  particular  use.  We  are  of  opinion  that  cigars  sold  by  a  tobacconist 
in  the  ordinary  wa)^  are  not  drugs  or  medicines,  within  the  meaning  of 

I  those  words  as  used  in  the  statute.  Many  things  which  are  not  in 
themselves  medicines  may  be  put  to  a  medicinal  use,  and  when  so  used 
they  may  become  medicines.  But  ther6  was  no  evidence  in  the  pres- 
ent case  that  the  cigars  which  the  defendant  sold  were  used  or  were 

t  intended  to  be  used  as  a  medicine,  or  that  the  defendant  kept  his  shop 
open  for  the  purpose  of  furnishing  cigars  to  be  used  medicinally.  The 
instruction  must  therefore  be  construed  in  its  application  to  evidence 
of  an  ordinary  sale  of  cigars,  and,  so  applied,  we  are  of  opinion  that 
it  was  correct. 

In  their  application  to  the  evidence  of  such  a  sale  all  the  questions 
to  the  witness  Harris  were  immaterial  and  incompetent.  The  record 
in  the  case  of  Com.  v.  Burwell  was  not  between  the  parties  now  con- 
tending, and  was  rightly  excluded.  The  court  rightly  ruled  that  the 
United  States  Dispensatory  could  not  be  put  in  evidence.     Com.  v. 


Sec.  2)  JUDICIAL  NOTICE  99 

Brown,  121  Mass.  69.  The  instructions  to  the  jury  in  regard  to  their 
duty  to  follow  the  charge  of  the  judge  in  matters  of  law  were  in  ac- 
cordance with  the  rule  laid  down  in  Com.  v.  Anthes,  5  Gray,  185, 
which  has  ever  since  been  the  settled  law  of  this  commonwealth. 

We  find  no  error  in  any  other  of  the  rulings  or  refusals  to  rule  set 
out  in  the  bill  of  exceptions.     Exceptions  overruled.*' 


PEOPLE  V.  MAYES. 

(Supreme  Court  of  California,  1S96.    113  Cal,  618,  45  Pac.  SCO.) 

Harrison,  J.**  The  appellant  was  convicted  of  felony,  in  stealing 
a  blue  steer,  and  has  appealed  from  the  judgment  thereon,  and  from 
an  order  denying  a  new  trial.  The  evidence  connecting  him  with  the 
taking  of  the  animal  was  sharply  conflicting,  and  testimony  impeaching 
nearly  all  of  the  witnesses  who  testified  on  either  side  of  the  case  was 
presented  to  the  jury.  Under  these  circumstances,  the  sufficiency  of 
the  evidence  to  sustain  the  verdict  is  not  open  for  examination.    *    *    * 

A  witness  on  behalf  of  the  defendant  testified  that  on  the  night  when 
the  animal  was  taken  he  met  Ruiz,  one  of  the  witnesses  for  the  pros- 
ecution, driving  a  dark-colored  animal;  that  the  moon  was  up  and 
shining,  and  the  night  was  pretty  light.  On  being  asked  what  time  of 
the  night  it  was,  he  said  that  he  was  unable  to  tell  but  thought  that  it 
was  "along  about  ten  o'clock,  somewheres  about  there,  I  suppose,"  and 
at  another  time  he  said  that  it  was  "betwixt  nine  and  ten,  I  suppose." 
The  court  instructed  the  jury,  as  a  matter  of  judicial  knowledge,  that 
the  moon  on  that  night  rose  at  10:57  p.  m.  It  does  not  appear  that 
any  evidence  upon  that  point  had  been  offered  at  the  trial,  nor  was 
such  evidence  necessary.  People  v.  Chee  Kee,  61  Cal.  404.  Section 
1875,  subd.  8,  Code  Civ.  Proc,  declares  that  courts  take  judicial  knowl- 
edge of  "the  laws  of  nature,  the  measure  of  time,  and  the  geographical 
conditions  and  political  history  of  the  world,"  and  that  "the  court  may 
resort  for  its  aid  to  appropriate  books  or  documents  of  reference";  and 
section  2102,  Code  Civ.  Proc,  declares,  "Whenever  the  knowledge  of 
the  court  is  by  this  Code  made  evidence  of  a  fact,  the  court  is  to  de- 
clare such  knowledge  to  the  jury,  who  are  bound  to  adopt  it."  "Judi- 
cial notice  will  be  taken  of  the  time  the  moon  rises  and  sets  on  the 
several  days  of  the  year,  as  well  as  of  the  successsion  of  the  seasons, 
the  difference  of  time  in  different  longitudes,  and  the  constant  and  in- 
variable course  of  nature."     Case  v.  Perew,  46  Hun,  57.     See,  also, 

87  See,  also.  State  v.  iMain,  CO  Conn.  12.3,  37  Atl.  80,  36  L.  R.  A-  623,  61 

Am.  St.  Rep.  30  (1897),  where,  under  a  statute  dealing  with  "peach  yellows,'" 
the  court  refused  to  submit  the  nature  of  such  disease  as  a  question  ol 
fact  to  the  jury. 

■*"  Part  of  opinion  omitted. 


100  THE  COURT  AND  THE  JURY  (Cll.  1 

State  V.  Morris,  47  Conn.  179;  Mimshower  v.  State,  55  T^Id.  11,  39 
Am.  Rep.  414. 

Upon  his  motion  for  a  new  trial  the  appellant  assigned  the  above 
instruction  as  error,  and,  in  support  thereof,  presented  an  affidavit  by- 
Lewis  Swift  that  on  that  night  the  moon  rose  at  10:35  p.  m.  No  prec- 
edent in  support  of  the  practice  of  showing  by  affidavits  that  the  court 
erred  in  instructing  a  jury  upon  matters  within  its  judicial  knowl- 
edge has  been  cited  to  our  attention,  and  we  are  of  the  opinion  such 
practice  ought  not  to  prevail.  The  judicial  notice  which  courts  take 
of  matters  oT  fact  embraces  those  facts  which  are  within  the  common 
knowledge  of  all,  or  are  of  such  general  notoriety  as  to  need  no  evi- 
dence in  their  support,  and  also  those  matters  which  do  not  depend 
/^  upon  the  weight  of  conflicting  evidence,  but  are  in  their  nature  fixed 
t\  and  uniform,  and  may  be  determined  by  mere  inspection,  as  of  a  pub- 

)  lie  document,  or  by  demonstration,  as  in  the  calculations  of  an  exact 

science.  These  matters  may  not  be  within  the  personal  knowledge  of 
the  judge  who  presides  over  the  court,  but,  if  a  knowledge  of  them  is 
necessary  for  a  proper  determination  of  the  issues  in  the  case,  he  is 
authorized  to  avail  himself  of  any  source  of  information  which  he  may 
deem  authentic,  either  by  inquiring  of  others,  or  by  the  examination 
of  books,  or  by  receiving  the  testimony  of  witnesses.  Rogers  v.  Cady, 
104  Cal.  290,  38  Pac.  81,  43  Am.  St.  Rep.  100.  As  this  knowledge  of 
the  court  does  not  depend  upon  the  weight  of  evidence,  and  is  not  to  be 
determined  upon  a  consideration  of  the  credibility  of  witnesses,  it  is 
evident  that,  when  the  court  has  stated  to  the  jury  a  fact  of  which  it 
takes  judicial  knowledge,  the  correctness  of  such  statement  is  not  to 
be  controverted  or  set  aside  on  an  appeal  by  affidavits  which  are  mere- 
ly contradictory  of  the  correctness  of  such  statement. 

The  appellate  court  takes  judicial  notice  of  the  fact,  in  the  same  man- 
ner as  does  the  trial  court ;  but,  in  the  absence  of  any  personal  knowl- 
edge of  the  fact  by  the  individual  members  of  the  court,  the  fact  as 
stated  by  the  court  below  will  be  assumed  to  be  correct,  and  the  ap- 
pellant will  be  required  to  show  affirmatively  that  the  court  erred  in 
its  statement  of  it.  The  record  does  not  show  the  means  or  sources 
from  which  the  court  obtained  its  knowledge  of  this  fact, — whether 
from  information  derived  from  others,  or  from  books,  or  by  means  of 
an  individual  calculation;  and,  although  it  appears  from  an  affidavit 
on  behalf  of  the  appellant  that  the  times  of  the  rising  of  the  moon,  in 
the  Family  Christian  Almanac,  are  correct,  and  that  the  ordinary  al- 
manacs found  in  drug  stores,  and  sometimes  called  "patent-medicine 
almanacs,"  are  not  reliable,  the  time  stated  in  either  of  these  alma- 
nacs at  which  the  moon  rose  on  that  night  is  not  given,  nor  does  it  ap- 
pear that  the  court  below  referred  to  either  of  them.  While  it  is  said 
in  the  affidavit  of  Swift  that  his  statement  is  "made  from  accurate, 
correct,  and  reliable  astronomical  observations,  calculations,  and  data," 
he  does  not  state  that  he  made  the  calculations,  or  the  person  by  whom 


Sec.  2)  JUDICIAL  NOTICE  101 

they  were  made ;   so  that  his  affidavit  is  in  reality  of  no  higher  grade 
than  hearsay,  and  is  insufficient  to  overcome  the  presumption  of  the 
correctness  of  the  court's  statement  to  the  jury.     ♦     *     ♦ 
Judgment  affirmed. 


80 


LAZIER  V.  WESTCOTT. 

(Court  of  Appeals  of  New  York.  1802.    26  N.  Y.  146,  82  Am.  Def.  404.) 

DaviEs,  T-®**  This  is  an  action  upon  a  judgment  recovered  in  the 
Court  of  Common  Pleas  of  Upper  Canada  against  this  defendant  by 
this  plaintiff.  The  cause  was  tried  before  a  referee,  who  gave  judg- 
ment for  the  plaintiff  and  judgment  on  his  report  to  be  affirmed  at 
General  Term. 

On  the  trial  the  plaintiff  offered  in  evidence  an  exemplification  of 
the  record  of  a  judgment  in  the  Court  of  Common  Pleas  of  Upper 
Canada,  which  was  received  under  objection  and  exception.  Numer- 
ous interlineations,  alterations  and  erasures  appeared  in  the  record, 
but  they  all  appeared  to  be  marked  or  authenticated  by  the  initials  "L. 
H.,"  being  the  initials  of  the  name  of  the  clerk,  and  said  initials  ap- 
peared to  be  in  the  same  handwriting  as  that  of  the  signature  of  said 
clerk.  The  defendant's  counsel  objected  to  the  introduction  of  said 
papers  on  the  ground : 

(1)  That  this  government  does  not  recognize  the  province  named  in 
the  record  as  one  of  the  independent  powers  of  the  world,  and  that 
it  was  not  such  in  fact;  and  that  the  evidence  of  the  authority  of 
the  officers  acting  must  come  from  the  government  creating  them. 

(2)  That  the  paper  is  not  authenticated  in  the  manner  required  by 
law.     *     *     * 

I  shall  consider  them  in  the  order  above  enumerated.  I  do  not  read 
our  statute  in  reference  to  the  exemplification  of  the  records  and  ju- 
dicial proceedings  in  any  court  in  any  foreign  country  as  confining 
the  admission  of  the  records  only  of  such  foreign  country  as  shall 
have  been  acknowledged  by  this  government  as  one  of  the  independ- 
ent powers  of  the  world,  and  with  which  we  have  diplomatic  inter- 
course. I  think  the  obvious  meaning  of  the  statute  is  to  admit  the 
records  of  any  court  of  any  foreign  country,  and  it  is  quite  imma- 
terial whether  such  foreign  country  is  one  of  the  great  powers  of  the 
world,  or  one  of  minor  importance  and  having  a  circumscribed  extent. 
The  size  of  the  country  cannot  alter  the  rule  of  evidence,  and  the  rec- 

8 a  In  Munshower  v.  State.  55  Md.  11,  39  Am.  Rep.  414  (1880),  it  was  held 
that  an  almanac  was  properly  admitted  to  prove  when  the  moon  rose.  In 
State  v.  Morris,  47  Conn.  179  (1S79),  it  was  said  that  there  was  no  error  in 
admitting  an  almanac  to  show  the  time  of  sunset,  because  the  court  would 
take  notice  of  the  fact.  In  Wilson  v.  Van  Leer,  127  Pa.  371,  17  Atl.  1097,  14 
Am.  St.  Rep.  854  (1SS9),  it  was  held  proper  to  refer  in  argument  to  an  al<< 
manac  which  had  not  been  offered  in  evidence. 

»o  Part  of  opinion  omitted. 


102 


THE   COURT  AND   THE  JURY 


(Ch.    1 


h 


ords  of  a  court  of  the  Republic  of  San  Marino  are  of  equal  validity 
as  those  of  the  Empire  of  all  the  Russias.  The  only  question  is,  does 
the  record  come  from  a  court  of  a  foreign  country?  If  so,  and  it  is 
properly  authenticated,  it  is  to  be  admitted  as  evidence  under  the  provi- 
sions of  our  Revised  Statutes.    3  R.  S.  (5th  ed.)  678,  §  26. 

The  court  will  take  judicial  notice  that  the  province  of  Upper  Canada 
is  a  foreign  country,  and  forms  no  part  of  our  own  (Ennis  v.  Smith, 
14  How.  430,  14  L.  Ed.  472),  that  it  has  a  government  and  courts,  and 
that  those  courts  proceed  according  to  the  course  of  the  common  law. 
The  record  produced  was,  therefore,  the  record  of  a  court  of  a  for- 
eign country,  and  it  is  authenticated  by  the  attestation  of  the  clerk  of 
the  court,  with  the  seal  ^^  of  the  court  annexed.  There  is  also  attached 
the  certificate  of  the  chief  justice  of  the  court,  that  the  person  attesting 
such  record  is  the  clerk  of  the  court,  and  that  the  signature  of  such 
clerk  is  genuine.  These  papers  are  further  authenticated  by  the  certifi- 
cate of  the  assistant  secretary  of  state  of  said  province,  and  by  the 
governor  in  chief  of  said  province,  having  charge  of  the  great  seal  of 
said  province,  and  which  fact  is  attested  by  the  affixing  the  great  seal 
to  said  certificate,  and  which  of  itself  imports  verity,  under  the  au- 
thority of  which  government  said  court  is  held,  and  which  certificate 
declares  that  such  court  is  lawfully  and  duly  constituted,  and  specifies 
the  general  nature  of  its  jurisdiction,  and  it  also  verifies  the  signature 
of  the  clerk  of  such  court,  and  the  signature  of  the  chief  justice  there- 
of. It  seems  to  me,  therefore,  that  all  the  provisions  of  the  statute 
have  been  complied  with,  to  authorize  the  reading  of  this  record  in 
evidence  in  any  court  of  this  State.  The  referee,  therefore,  properly 
admitted  it  to  be  read.  If  I  am  correct  in  these  views  they  dispose  of 
the  first  and  second  objections  of  the  defendant's  counsel.    *     *    * 

Judgment  affirmed. 


STATE  V.  HORN. 

(Supreme  Court  of  Vermont,  1S70.    43  Vt.  20.) 

Peck,  J.®^  The  paper  purporting  to  be  a  marriage  certificate  of  a 
marriage  in  the  State  of  Pennsylvania,  admitted  against  the  objec- 
tion of  the  respondent,  was  incompetent  evidence,  and  ought  to  have 
been  excluded.  It  did  not  prove  itself.  Aside  from  the  certificate 
there  was  no  evidence  that  there  was  any  such  man  as  Benjamin  Jay 
who  was  a  justice  of  the  peace,  or  that  by  the  laws  of  Pennsylvania 
a  justice  of  the  peace  has  authority  to  solemnize  marriages.    The  case 

81  It  is  frequently  said  that  courts  take  notice  of  the  seal  of  a  foreign 
notary  certifying  his  protest  of  a  foreign  bill.  Pierce  v.  Indseth;  lOG  U.  S. 
.546,  1  Sup.  Ct.  418,  27  L.  Ed.  254  (1882).  It  is  doubtful,  however,  whether 
this  means  anything  more  than  that  the  courts  will  presume  the  geuuineness  of 
what  purports  to  be  a  foreign  notarial  seal. 

92  Statement  and  part  of  opinion  omitted. 


Sec.  2)  JUDICIAL  NOTICE  103 

states  that  the  presiding  judge  stated  to  the  jury,  in  his  charge,  that  of 
his  own  knowledge  justices  of  the  peace  by  the  laws  of  Pennsylvania 
had  such  authority,  but  that  is  not  proof.  The  laws  of  other  States, 
when  material  to  the  merits_of_a^case^cannotbe  established^X2I£ept  by_ 
legaT  evidence,  and  if'statute  laws,  they  must  be  proved  by  the  produc- 
tTonT  of~the  statute.  If-arjusTtce  of  Tlie'peace  liaT^uch  authority  by 
the  laws~ofTennsyTvaiTra,  it  is  to  be  taken  to  exist  by  statute.  *  *  * 
Judgment  reversed.^* 


CITY  OF  WINONA  v.  BURKE. 

(Supreme  Court  of  Minnesota,  1876.    23  Minn.  254.) 

GiLFiLLAN,  C.  J.'*  The  defendant  was  convicted  in  the  court  below 
for  the  alleged  violation  of  a  city  ordinance.  On  the  trial  no  proof 
of  the  ordinance  was  made,  and  the  defendant  moved  to  dismiss  the 
prosecution  on  that  ground,  which  motion  was  denied.  It  is  claimed 
on  behalf  of  the  city  that,  because  of  Laws  1873,  c.  68 — which  pro- 
vides that,  when  the  "by-laws,  ordinances,  etc.,  of  any  city  *  *  * 
have  been  or  shall  hereafter  be  printed  and  published  by  authority  of 
the  corporation,  the  same  shall  be  received  in  evidence  in  all  courts  and 
places  without  further  proof" — the  court  will  take  judicial  notice  of 
the  existence  of  the  ordinance,  without  proof.  Such  was  not  the  in- 
tention of  the  act,  as  is  clear  from  its  language,  and  does  not  affect 
the  necessity  of  proving  the  ordinance.  Courts  do  not  take  judicial 
notice  of  city  ordinances.  Garvin  v.  Wells,  8  Iowa,  286;  Goodrich  v. 
Brown,  30  Iowa,  291.    Such  ordinances  should  be  pleaded  and  proved. 

Judgment  reversed.*^ 

»8  An  American  court  does  not  take  notice  of  the  laws  of  England  since 
the  Revolution.  Liverpool  &  G.  W.  S.  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397, 
9  Sup.  Ct.  469,  32  L.  Ed.  7S8  (1889).  But  notice  will  be  taken  of  the  law 
formerly  in  force  in  territory  now  a  part  of  the  United  States.  United 
States  V.  Perot,  98  U.  S.  428,  25  L.  Ed.  251  (1878). 

04  Statement  omitted. 

»6  The  omission  to  prove  an  ordinance  at  the  trial  cannot  be  supplied  by 
proof  in  the  appellate  court.  Porter  v.  Waring,  69  N.  Y.  250  (1877),  in  which 
the  following  reasons  are  given  for  the  general  rule:  "If  the  court  could 
take  judicial  notice  of  the  ordinances  of  a  municipal  corporation,  it  would 
involve  the  consideration  of  all  the  numerous  enactments,  whether  printed 
or  otherwise,  which  the  common  council  have  adopted  which  relate  to  the 
subject  of  the  controversy,  and  the  existence  of  many  of  which  misht  be 
entirely  unknown  to  the  parties  or  their  counsel.  It  would  open  the  door  in 
many  cases  to  mere  conjecture,  and  involve  an  inquiry  as  to  local  enact- 
ments, the  time  when  they  took  effect,  the  priority  of  the  same,  and  their 
application  to  the  case  in  litigation,  which  it  would  be  difficult  to  dispose 
of  without  proof,  and  which  are  not  properly  embraced  within  the  ordinary 
scope  of  judicial  knowledge  in  the  determination  and  trial  of  cases." 


104  THE  COURT  AND  THE  JURY  (Ch.  1 


LANE  V.  SARGENT. 

(Circuit  Court  of  Appeals  of  the  United  States,  First  Circuit,  1914.    217  Fed. 

237,  133  C.  C.  A.  231.) 

Bingham,  Circuit  Judge. ^^  The  plaintiff,  Sargent,  a  citizen  of  the 
state  of  New  Hampshire,  brings  this  action  •  against  the  defendant, 
Lane,  a  citizen  of  the  commonwealth  of  Alassachusetts,  in  the  District 
Court  of  the  L'nited  States  for  the  District  of  New  Hampshire,  to  re- 
cover damages  for  injuries  received  on  August  4.  1912,  by  being  run 
into  by  an  automobile  operated  by  the  defendant.  The  accident  took 
place  while  the  plaintiff  was  crossing  Main  street,  in  Salisbury,  Mass. 
There  was  a  trial  by  jury  and  a  verdict  for  the  plaintiff.  The  case  is 
now  here  on  defendant's  bill  of  exceptions,  and  the  errors  assigned 
are  to  the  exclusion  of  certain  evidence  offered  by  the  defendant  and 
the  refusal  of  the  judge  to  give  certain  requests  for  rulings. 

The  accident  having  occurred  in  Massachusetts,  and  the  law  of  the 
road  of  that  state  being  a  material  point  in  tlie  case,  the  defendant  of- 
fered to  show  what  the  law  of  Massachusetts  on  that  subject  was  by 
introducing  in  evidence  three  decisions  of  the  Massachusetts  Supreme 
Judicial  Court,  as  reported  in  Galbraith  v.  West  End  St.  Ry.  Co.,  165 
Mass.  581,  43  N.  E.  501,  Scannell  v.  Boston  Elevated  Ry.  Co.,  176 
Mass.  173,  57  N,  E.  341,  and  Commonwealth  v.  Horsfall;  213  Mass. 
232.  100  N.  E.  362,  Ann.  Cas.  1914A,  682.  The  evidence  was  exclud- 
ed, and  the  defendant  excepted.  The  trial  court,  in  excluding  the  evi- 
dence, made  the  following  ruling: 

"I  think  this  question  is  a  question  of  law  for  the  court  to  pass  upon, 
and  the  court  is  very  glad  to  have  any  citation  of  Massachusetts  law 
submitted  to  the  court,  and  the  court  will  instruct  the  jury  upon  what 
the  Massachusetts  law  is.  Upon  that  assumption,  with  this  view  of  the 
law,  the  court  will  not  allow  the  opinions  of  the  Massachusetts  court 
which  have  been  called  to  its  attention  to  be  read  to  the  jury." 

The  defendant  contends  that  the  law  of  Massachusetts,  where  the 
accident  occurred,  is  the  law  of  a  foreign  jurisdiction,  and  must  be 
proved  as  a  fact;  that  the  court  could  not  take  judicial  cognizance  of 
it.  This  contention  cannot  be  sustained.  In  Mills  v.  Green,  159  U. 
S.  651,  657,  16  Sup.  Ct.  132,  134  (40  L.  Ed.  293),  Mr.  Justice  Gray,  in 
delivering  the  opinion  of  the  court,  said: 

"The  lower  courts  of  the  United  States,  and  this  court,  on  appeal 
I  from  their  decisions,  take  judicial  notice  of  the  Constitution  and  pub- 
\lic  laws  of  each  state  of  the  Union.  Owings  v.  Hull,  9  Pet.  607,  625 
[9  L.  Ed.  246]  ;  Lamar  v.  Micou,  112  U.  S.  452,  474  [5  Sup.  Ct.  221, 
28  L.  Ed.  751]  ;  Id.,  114  U.  S.  218,  223  [5  Sup.  Ct.  857,  29  L.  Ed.  94]  ; 
Hanley  v.  Donoghue,  116  U.  S.  1,  6  [6  Sup.  Ct.  242.  29  L  Ed.  535]  : 
Fourth  National  Bank  v.  Francklyn,  120  U.  S.  747,  751   [7  Sup.  Ct 

96  Part  of  opinion  omitted. 


Sec.  2)  JUDICIAL   NOTICE  105 

7b7,  30  L.  Ed.  825]  ;  Gormley  v.  Bunyan,  138  U.  S.  623  [11  Sup.  Ct. 
453,  34  L.  Ed.  1086]  ;  Martin  v.  Baltimore  &  Ohio  Railroad,  151  U. 
S.  673,  678  [14  Sup.  Ct.  533,  38  L.  Ed.  311]." 

And  in  Hanley  v.  Donoghue,  116  U.  S.  1,  6,  6  Sup.  Ct.  242,  245  (29 
L.  Ed.  '^.Z})),  the  same  Justice,  in  speaking  for  the  court,  said: 

"In  the  exercise  of  its  general  appellate  jurisdiction  from  a  lower 
court  of  the  United  States,  this  court  takes  judicial  notice  of  the  laws 
of  ever}-  state  of  the  Union,  because  those  laws  are  known  to  the 
court  below  as  laws  alone,  needing  no  averment  or  proof.     *     *     * 

"But  on  a  writ  of  error  to  the  highest  court  of  a  state,  in  which  the 
revisory  power  of  thi?  court  is  limited  to  determining  whether  a  ques- 
tion of  law  depending  upon  the  Constitution,  laws,  or  treaties  of  the 
United  States  has  been  erroneously  decided  by  the  state  court  upon  the 
fact?  before  it — while  the  law  of  that  state,  being  known  to  its  courts 
as  law,  is  of  course  within  the  judicial  notice  of  this  court  at  the  hear- 
ing on  error — yet,  as  in  the  state  court  the  laws  of  another  state  are 
but  facts,  requiring  to  be  proved  in  order  to  be  considered,  this  court 
does  not  take  judicial  notice  of  them,  unless  made  part  of  the  record 
sent  up,  as  in  Green  v.  Van  Buskirk,  7  Wall.  139  [19  L.  Ed. 
109].    *    *    * 

"Where  by  the  local  law  of  a  state  (as  in  Tennessee,  Hobbs  v. 
Memphis  &  Charleston  Railroad,  9  Heisk.  873)  its  highest  court  takes 
judicial  notice  of  the  laws  of  other  states,  this  court  also,  on  writ  of 
error,  jnight  take  judicial  notice  of  them." 

See  Martin  v.  Baltimore  &  Ohio  Railroad,  151  U.  S.  673,  678,  14 
Sup.  Ct.  ':sZZ,  38  L.  Ed.  311. 

The  Pawashick.  2  Low.  142,  Fed.  Cas.  No.  10,851,  a  case  rehed 
upon  by  the  defendant  in  support  of  his  contention,  is  not  in  point. 
There  the  question  was  whether  a  federal  court  would  take  judicial 
notice  of  the  law  of  a  foreign  countr\-  or  it  should  be  proved  as  a 
fact.    *     *    * 

Judgment  affirmed.®^ 


UNDERHILL  v.  HERNANDEZ. 

(Supreme  Court  of  the  United  States,  1897.    168  U.  S.  250,  18  Sup.  Ct.  83. 

42  L.  Ed.  456.) 

George  F.  Underbill  was  a  citizen  of  the  United  States,  who  had 
constructed  a  waterworks  system  for  the  city  of  Bolivar,  under  a 
contract  with  the  government,  and  was  engaged  in  supplying  the  place 
with  water  ;  and  he  also  carried  on  a  machinery  repair  business.  Some 
time  after  the  entry  of  Gen.  Hernandez,  Underbill  applied  to  him,  as 

9"  The  courts  of  the  several  states  take  notice  of  the  laws  of  the  United 
States.  Gooding  v.  Morfran.  70  111.  275  (1S7;^.);  Eastwood  v.  Kennedy,  44 
Md.  5G3  (1876)  ;  Louisville  &  N.  Ry.  Co.  v.  Scott,  133  Ixy.  724.  118  S.  W. 
MO.  19  Ann.  Cas.  392  (1909). 


106  THE  COURT  AND  THE  JURY  (Ch.  1 

the  officer  in  command,  for  a  passport  to  leave  the  city.  Hernandez 
refused  this  request,  and  requests  made  by  others  in  Underhill's  be- 
half, until  October  18th,  when  a  passport  was  given,  and  Underbill 
left  the  country. 

This  action  was  brought  to  recover  damages  for  the  detention  caus- 
ed by  reason  of  the  refusal  to  grant  the  passport,  for  the  alleged  con- 
finement of  Underbill  to  his  own  house,  and  for  certain  alleged  as- 
saults and  affronts  by  the  soldiers  of  Hernandez's  army. 

The  cause  was  tried  in  the  Circuit  Court  of  the  United  States  for 
the  Eastern  District  of  New  York,  and  on  the  conclusion  of  plaintiff's 
case  the  Circuit  Court  ruled  that  upon  the  facts  plaintiff  was  not  en- 
titled to  recover,  and  directed  a  verdict  for  defendant,  on  the  ground 
that  "because  the  acts  of  defendant  were  those  of  a  military  com- 
mander, representing  a  de  facto  government  in  the  prosecution  of  a 
war,  he  was  not  civilly  responsible  therefor."  Judgment  having  been 
rendered  for  defendant,  the  case  was  taken  to  the  Circuit  Court  of 
Appeals,  and  by  that  court  affirmed,  upon  the  ground  "that  the  acts 
of  the  defendant  were  the  acts  of  the  government  of  Venezuela,  and 
as  such  are  not  properly  the  subject  of  adjudication  in  the  courts  of 
another  government."  26  U.  S.  App.  573,  13  C.  C.  A.  51,  and  65 
Fed.  577.  Thereupon  the  cause  was  brought  to  this  court  on  cer- 
tiorari."^ 

Mr.  Chief  Justice  Fuller.  Every  sovereign  state  is  bound  to  re- 
spect the  independence  of  every  other  sovereign  state,  and  the  courts 
of  one  country  will  not  sit  in  judgment  on  the  acts  of  the  government 
of  another,  done  within  its  own  territory.  Redress  of  grievances  by 
reason  of  such  acts  must  be  obtained  through  the  means  open  to  be 
availed  of  by  sovereign  powers  as  between  themselves. 

Nor  can  the  principle  be  confined  to  lawful  or  recognized  govern- 
ments, or  to  cases  where  redress  can  manifestly  be  had  through  public 
channels.  The  immunity  of  individuals  from  suits  brought  in  foreign 
tribunals  for  acts  done  within  their  own  states,  in  the  exercise  of  gov- 
ernmental authority,  whether  as  civil  officers  or  as  military  com- 
manders, must  necessarily  extend  to  the  agents  of  governments  rul- 
ing by  paramount  force  as  matter  of  fact.  Where  a  civil  war  prevails 
(that  is,  where  the  people  of  a  country  are  divided  into  two  hostile  par- 
ties, who  take  up  arms  and  oppose  one  another  by  military  force),  gen- 
erally speaking,  foreign  nations  do  not  assume  to  judge  of  the  merits 
of  the  quarrel.  If  the  party  seeking  to  dislodge  the  existing  govern- 
ment succeeds,  and  the  independence  of  the  government  it  has  set  up 
is  recognized,  then  the  acts  of  such  government,  from  the  commence- 
ment of  its  existence,  are  regarded  as  those  of  an  independent  nation, 
n  the  political  revolt  fails  of  success,  still,  if  actual  war  has  been 
waged,  acts  of  legitimate  warfare  cannot  be  made  the  basis  of  individ- 
ual liability.     United  States  v.  Rice,  4  Wheat.  246,  4  L.  Ed.  562; 

9  8  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  2)  JUDICIAL  NOTICE  107 

Fleming  v.  Page,  9  How.  603,  13  L.  Ed.  276;  Thorington  v.  Smith, 
8  Wall.  1,  19  L.  Ed.  361 ;  Williams  v.  Bruffy,  96  U.  S.  176,  24  L. 
Ed.  716;  Ford  v.  Surget,  97  U.  S.  594,  24  L.  Ed.  1018;  Dow  v.  John- 
son, 100  U.  S.  158,  25  L.  Ed.  632;   and  other  cases. 

Revolutions  or  insurrections  may  inconvenience  other  nations,  but 
by  accommodation  to  the  facts  the  application  of  settled  rules  is  read- 
ily reached.  And,  where  the  fact  of  the  existence  of  war  is  in  issue 
in  the  instance  of  complaint  of  acts  committed  within  foreign  terri- 
tory, it  is  not  an  absolute  prerequisite  that  that  fact  should  be  made 
out  by  an  acknowledgment  of  belligerency,  as  other  official  recognition 
of  its  existence  may  be  sufficient  proof  thereof.  The  Three  Friends, 
166  U.  S.  1,  17  Sup.  Ct.  495,  41  L.  Ed.  897. 

In  this  case  the  archives  of  the  state  department  show  that  civil  war 
was  flagrant  in  Venezuela  from  the  spring  of  1892,  that  the  revolution 
was  successful,  and  that  the  revolutionary  government  was  recognized 
by  the  United  States  as  the  government  of  the  country;  it  being,  to 
use  the  language  of  the  secretary  of  state  in  a  communication  to  our 
minister  of  Venezuela,  "accepted  by  the  people,  in  the  possession  of 
the  power  of  the  nation,  and  fully  established." 

That  these  were  facts  of  which  the  court  is  bound  to  take  judicial 
notice,  and  for  information  as  to  which  it  may  consult  the  depart- 
ment of  state,  there  can  be  no  doubt.  Jones  v.  United  States,  137  U. 
S.  202,  11  Sup.  Ct.  80,  34  L.  Ed.  691;  Mighell  v.  Sultan  of  Jahore 
[1894]  1  O.  B.  149. 

It  is  idle  to  argue  that  the  proceedings  of  those  who  thus  triumphed 
should  be  treated  as  the  acts  of  banditti,  or  mere  mobs. 

We  entertain  no  doubt,  upon  the  evidence,  that  Hernandez  was 
carrying  on  military  operations  in  support  of  the  revolutionary  par- 
ty. It  may  be  that  adherents  of  that  side  of  the  controversy  in  the 
particular  locality  where  Hernandez  was  the  leader  of  the  movement 
entertained  a  preference  for  him  as  the  future  executive  head  of  the 
nation,  but  that  is  beside  the  question.  The  acts  complained  of  were 
the  acts  of  a  military  commander  representing  the  authority  of  the 
revolutionary  party  as  a  government,  which  afterwards  succeeded,  and 
was  recognized  by  the  United  States.  We  think  the  circuit  court  of 
appeals  was  justified  in  concluding  "that  the  acts  of  the  defendant 
were  the  acts  of  the  government  of  Venezuela,  and  as  such  are  not 
properly  the  subject  of  adjudication  in  the  courts  of  another  govern- 
ment."     *      *     * 

Judgment  affirmed."" 

90  The  same  court  has  taken  notire  of  the  American  occupation  of  Cuba 
(Neely  v.  Heukel,  ISO  U.  S.  109,  21  Sup.  Ct.  302,  45  L.  Ed.  448  [1901]),  and 
of  the  great  war  in  Europe  (United  States  v.  Ilaraburg-Amerilianisclie  Pacl<- 
et-Fahrt  Actieu  Gesellschaft  Co.,  239  U.   S.  4GG,  30  Sup.  Ct.  212,  GO  L.  Ed. 

387  [1916]). 

And  so  that  the  United  States  had  recognized  the  Carranza  government 
as  the  de  facto,  and  later  as  the  de  jure,  governmeut  of  Mexico.  Oetjen  v. 
Central  Leather  Co.,  24G  U.  S.  297,  38  Sup.  Ct.  309,  02  L.  Ed.  726  (1918). 


108  THE  COURT  AND  THE  JURY  (Ch.  1 


SECTION  3.— ADMISSION  AND  EXCLUSION  OF 

EVIDENCE  ^ 


.^oU ' '  THE  KING  V.  STONE. 

^vv»  (Court  of  King's  Bench,  1796.    6  Term  R.  527.) 


^. 


'  The  prisoner  was  tried  at  the  bar  of  this  court  on  the  28th  and  29th 
days  of  January   in  this   term  upon  an  indictment   for  high   treason 
yijLO''^''   on  two  branches  of  the  25  Ed.  3,  st.  5,  c.  2,  for  compassing  the  death 
*     -t>^    of  the  king,  and  for  adhering  to  his  enemies.    The  overt  acts  were  the 

^p.  ^  Where  the  admissibility  of  any  particular  item  of  evidence  depends  on 

I     Vr*4     the  existence  of  some  matter  of  fact,  such  fact  must  normally  be  established 

't'*^  I  before  the  evidence  in  question  is  offered,  though  in  a  proper  case  the  court 

-  -I  *  may  in  its  discretion  admit  the  evidence  upon  the  vmdertaking  of  counsel  to 

'A   ^-    ^"PP'^y  ^^  preliminary  proof  later. 

-U.  "^^^   .  ^,-f  ,■;/ The  most  serious  objection  to  varying  the  natural  order  in  such  cases  is 

•^  ah'      that,  in  the  event  of  a  failure  to  establish  the  preliminary  fact,  the  evidence 

h'^  already  admitted   may   have  a   prejudicial   effect,   which   in    many   cases  is 

<^ ,  difficult,  if  not  impossible,   to  counteract  by   any   direction   withdrawing   it 

'-  ■  from  the  consideration  of  the  jury. 

A  different  situation  is  presented  where  the  proof  of  a  proposition  involves 
several  steps  or  a  number  of  subordinate  facts,  no  one  of  which  is  of  any 
importance  except  in  connection  with  the  others. 
Obviously  a  number  of  facts  cannot  be  proved  simultaneously.     Hence  in 
nA  such  a  case  no  particular  preliminary  showing  can  be  required,  because,  no 

matter  with  what  fact  the  proof  begins,  the  same  objection  would  apply ; 
it  is  not  sufficient  unless  there  is  proof  of  additional  facts.  This  was  very 
V(jt  V  clearly  pointed  out  by  Caton,  J.,  in  Rogers  v.  Brent,  10  111.  (5  Oilman)  578, 
'^''^  50  Am.  Dec.  422  (1849):  "*  *  *  The  question  is,  not  whether  it  was 
sufficient  of  itself  to  make  out  the  defense,  but  would  it  aid  to  make  out  the 
case?  Would  it  tend  to  prove  the  defense?  Most  cases  have  to  be  proved 
by  a  succession  of  distinct  facts,  neither  of  which,  standing  alone,  would 
amount  to  anything,  while  all  taken  together  form  a  connected  chain,  and 
establish  the  issue,  and  from  necessity  a  party  must  be  allowed  to  present 
his  case  in  such  detached  parts  as  the  nature  of  his  evidence  requires.  It 
would  be  no  less  absurd  than  inconvenient,  when  proof  is  offered  in  its  prop- 
er order,  of  one  necessary  fact,  to  require  the  party  to  go  on  and  offer  to 
prove  at  the  same  time  all  the  other  necessary  facts  to  make  out  the  case. 
Such  a  practice  would  embarrass  the  administration  of  justice,  and  prove 
detrimental  to  the  rights  of  parties." 

Where  the  connection  is  doubtful,  or  prejudice  is  likely,  the  court  may, 
and  should,  make  such  a  preliminary  investigation  as  may  be  necessary. 

The  course  which  may  well  be  followed  in  such  cases  is  that  suggested  by 
Ferris,  J.,  in  State  v.  Hyde,  234  Mo.  200,  136  S.  W.  316,  Ann.  Cas.  1912D, 
191  (1911):  "In  a  case  like  this,  involving  a  large  amount  of  testimony 
concerning  other  crimes,  which  would  occupy  days  in  presentation,  it  would 
be  impracticable  to  give  a  preliminai-y  hearing  to  all  the  details.  In  such 
case  the  court  may  properly  be  guided  by  the  offer  of  proof  and  by  such 
testimony  as  can  be  conveniently  presented;  enough  to  satisfy  the  coui-t 
that  the  evidence  is  relevant  and  of  sufficient  weight  to  authorize  its  sub- 
mission to  the  jury.  The  great  danger  that  evidence  of  other  crimes,  even 
if  it  fails  to  establish  them,  and  even  if  it  is  by  an  instruction  withdrawn 
from  the  jury,  will  prejudice  the  jury  against  the  defendant,  and  obscure 
their  judgment  upon  the  real  issues  before  them,  suggests  the  propriety  of 
determining  in  advance  of  its  introduction  that  such  testimony  is  compe 
tent." 


Sec.  3)  ADMISSION   AND   EXCLUSION   OF  EVIDENCE  109 

same  in  each  count,  being  eleven  in  number;  but  that  to  which  the  evi- 
dence chiefly  applied  was  the  conspiring  with  John  Hurford  Stone 
William  Jackson  and  others  unknown  to  collect  the  intelligence  within 
this  kingdom  and  the  kingdom  of  Ireland  of  the  disposition  of  the 
king's  subjects  in  case  of  an  invasion  of  Great  Britain  or  Ireland,  and 
to  communicate  such  intelligence  to  the  persons  exercising  the  pow- 
ers of  government  in  France,  enemies  of  our  lord  the  king,  for  their 
aid,  assistance,  direction,  and  instruction,  in  their  conduct  and  pros- 
ecution of  the  war,  &c. 

Evidence  having  been  given  to  connect  the  prisoner  with  John  Hur- 
ford Stone  who  was  during  the  transaction  resident  in  France  and 
domiciled  there  and  Jackson,  and  to  shew  that  they  were  engaged  in 
a  conspiracy  for  the  above  stated  purpose ;  lord  Grenville  the  secretary 
of  state  for  the  foreign  department  was  called  to  prove  that  a  letter  of 
Jackson's  containing  treasonable  information  had  been  transmitted  to 
him  from  abroad,  but  in  a  confidential  way,  which  made  it  impossible 
for  him  to  divulge  by  whom  it  was  communicated. 

Adair,  Serjt.  and  Erskine  objected,  on  behalf  of  the  prisoner,  to  the 
reading  of  this  letter  as  it  had  not  been  proved  to  have  come  to  the 
hands  or  knowledge  of  the  prisoner;  and  insisted  that  nothing  could 
be  received  to  aflfect  the  prisoner  but  his  own  acts. 

The  Attorney  General  answered  that,  as  the  overt  act  charged  was-  ' 
a  conspiracy  of  which  proof  was  before  the  court,  the  act  of  each  con- 
spirator in  the  prosecution  of  such  conspiracy  was  evidence  against  i 
all:   that  it  had  been  so  determined  by  BuUer,  J.,  in  the  case  of  The 
King  V.  Bowes  and  others  30th  May  1787,  who  were  convicted  for  a 
conspiracy  to  carry  away  lady  Strathmore;    and  that  the  same  prin- 
ciple had  been  also  settled  in  The  King  v.  Harday,  and  The  King  v 
Tooke,  at  the  Old  Bailey  in  1794.     And  that  where  several  were  en-  ^ 
gaged  in  the  same  design,  nothing  was  more  common  than  to  receive  I 
the  acts  of  one  against  another,  though  not  present ;  as  in  the  cases  of  1 
murder  and  burglary,  the  acts  of  him  who  actually  killed  the  person 
or  broke  open  the  house  were  evidence  against  those  who  at  a  distance 
were  employed  watching  to  guard  against  any  interruption. 

Lord  Kenyon,  C.  J.,  said  he  had  no  doubt  but  that  there  was  suffi- 
cient evidence  to  connect  Jackson  and  the  prisoner :  but  that  as  to  the 
evidence  now  offered  he  should  have  great  doubts  of  its  admissibility, 
if  it  had  not  been  sanctioned  by  the  respectable  authority  of  the  judges 
who  sat  upon  the  late  trials  for  treason  at  the  Old  Bailey ;  the  determi- 
nation of  that  court  however  had  great  weight  with  him  ;  and  the  in- 
stances in  murder  and  burglary  alluded  to  went  a  great  way  to  remove 
his  doubts.  That  scruples  in  a  case  of  blood  might  induce  a  doubt, 
when  on  further  consideration  there  would  be  no  doubt. 
AsHHURST,  J.,  thought  the,  evidence  admissible. 
Grose,  J.  |Tf  a  number  of  persons  meet  towards  one  common  end, 
the  act  of  eaclTis  evidence  against  all  conceme5T 


110 


THE   COURT  AND  THE  JURY 


(Ch.   1 


Lawrence,  J.,  said  that  in  Tooke's  case  he  had  alluded  to  the  cases 
of  lord  Stafford  and  lord  Lovatt  to  shew  that  in  order  to  prove  a  con- 
spiracy the  acts  of  the  different  conspirators  as  connected  with  and 
in  conformity  with  his  own  were  admissible  evidence,  though  acts  to 
which  the  prisoner  was  no  direct  party,  and  that  in  this  case  evidence 
having  been  given  sufficient  for  the  jury  to  consider  whether  the  pris- 
oner was  not  one  engaged  in  a  conspiracy  for  treasonable  purposes 
with  Jackson,  if  they  v/ere  of  that  opinion,  Jackson's  acts  done  in  pur- 
suance of  that  conspiracy  were  in  contemplation  of  law  the  acts  ofthe 
prisoner. 

The  evidence  was  received.     This  was  on  the  first-day  of  the  trial. 

Lord  Kenyon,  C.  J.^     The  next  morning  said  he  had  thought  of 

the  point,  and  was  satisfied  it  had  been  rightly  decided  by  the  court. 
*     *     * 

Verdict,  not,  guilty." 


^ 


THOMAS  V.  JENKINS. 

(Court  of  King's  Bench,  1887.    6  Adol.  &  El.  525.) 

Replevin  for  taking  cattle.  Avowry  and  cognizances,  averring  the 
cattle  to  have  been  distrained  damage-f.easant.  Pleas  in  bar,  traversing 
the  title,  as  pleaded,  to  the  place  in  which,  &c.  Issues  thereon.  On 
the  trial  before  Coleridge,  J.,  at  the  Glamorganshire  Spring  assizes, 
1837,  the  material  question  was  as  to  the  boundary  dividing  the  estate 
which  comprises  the  locus  in  quo  from  another  estate.  An  old  wit- 
ness, who  was  called  for  the  defendant,  swore  that  he  had  kept  cattle 
on  the  first  mentioned  estate,  and  turned  off  those  of  other  people; 
that  his  father  at  that  time  was  tenant  of  the  estate;  that  his  father 
and  brother  told  him  what  line  of  boundary  he  was  to  keep,  and  that 
he  had  acted  accordingly  in  keeping  the  boundary;  that  his  father 
and  brother  were  overseers  of  the  hamlet  of  Glyncorrwg;  and  that 
the  boundary  of  the  estate  was  the  .same  as  that  of  the  hamlet.  He 
was  then  asked  whether  he  had  heard  from  old  persons,  since  dead, 
what  was  the  boundary  of  the  hamlet.  The  question  was  objected  to, 
as  an  attempt  to  prove  the  limits  of  a  private  estate  by  reputation. 
Coleridge,  J.,  held  the  evidence  admissible;  and  the  witness  then 
stated  what  he  had  heard  as  to  the  boundary  of  the  hamlet ;  and  other 
evidence  was  afterwards  given  on  the  same  point.  In  summing  up, 
the  learned  judge  left  the  evidence  of  reputation,  as  to  the  bound- 
ary of  the  hamlet,  to  the  jury,  but  desired  them  not  to  take  it  into 

2  Part  of  opinions  omitted. 

8  And  so  in  State  v.  Wallcer,  98  Mo.  95,  9  S.  W.  646,  11  S.  W.  1133  (1888) ; 
Hitchinan  Coal  &  Coke  Co.  v.  Mitchell,  245  U.  S.  229,  88  Sup.  Ct.  65,  62 
L.  Ed.  2G0,  L.  R.  A.  1918C,  497,  Ann.  Cas.  1918B,  461  (1917),  where  a  large 
numher  of  the  cases  are  collected. 


ft-^.  ^ 


Sec.  3)  ADMISSION   AND   EXCLUSION  OP  EVIDENCE  HI 

consideration  unless  they  were  satisfied  that  the  boundary  of  the 
estate  was  the  same  with  that  of  the  hamlet.  Verdict  for  the  de- 
fendant. 

Patteson,  J.*  The  point  in  dispute  on  the  trial  was  a  very  simple 
one,  namely,  whether  the  place  in  which  the  cattle  were  taken  was  or 
was  not  parcel  of  a  certain  estate ;  and  that  was,  of  course,  to  be  de- 
termined by  any  evidence  which  could  be  admissible  upon  such  a  ques- 
tion. On  this  precise  question,  evidence  of  reputation  was  clearly 
not  admissible ;  but  such  proof  is  receivable  to  show  the  boundary  of 
a  hamlet ;  and  that  being  so,  I  do  not  see  how  it  could  be  excluded 
in  the  present  case,  when  it  was  established  that  the  boundaries  of  the 
hamlet  and  of  the  farm  were  the  same.  Mr.  Chilton,  indeed,  seems 
not  to  rest  his  objection  on  the  ground  that  such  evidence  is  at  all 
events  inadmissible,  but  to  contend  that,  before  it  can  be  let  in,  the 
boundaries  must  be  shown  beyond  all  doubt  to  have  been  identical. 
That,  however,  would  be  trying  the  question  twice  over;  and  I  think 
that,  as  soon  as  some  evidence  of  the  identity  was  given,  this  proof  was 
receivable,  the  jury  being  cautioned  by  the  learned  judge  not  to  take 
it  into  consideration  unless  satisfied  that  the  boundaries  were  the  same. 
If  the  identity  of  the  boundaries  had  been  proved  by  evidence  of 
reputation,  the  case  would  have  been  different ;  but  the  witness  called 
on  this  subject  stated  it  positively,  and  not  as  matter  of  reputation; 
and,  that  being  so,  the  proof  of  reputation  as  to  the  boundary  of 
the  hamlet  was  let  in,  and  supported  the  defendant's  case,  provided 
the  jury  were  satisfied  of  the  identity  upon  the  witness's  statement. 

Rule  (for  new  trial)  refused.^ 


DOE  dem.  JENKINS  et  al.  v.  DAVIES  et  al. 
(Court  of  Queen's  Bench,  1847.    10  Adol.  &  El.  [N.  S.]  314.) 

Ejectment  for  a  tract  of  land  in  Cardiganshire.  At  the  trial  before 
Coltman,  J.,  there  was  a  verdict  for  defendant.  Williams  obtained  a 
rule  nisi  for  a  new  trial.^ 

Lord  Denman,  C.  J.,  in  this  vacation  (February  8th,)  dehvered  the 
judgment  of  the  Court. 

It  was  admitted  that  the  defendants  were  entitled  to  the  verdict,  if 
one  Elizabeth  Stevens  was  legitimate ;  that  is,  if  her  mother  was  the 
wife  of  her  father  John  Davies. 

4  Opinions  of  Lord  Denman,  C.  J.,  and  Coleridge,  J.,  omitted. 

5  For  a  somewhat  analogous  situation  see  Winslow  v.  Bailey,  16  Me.  310 

See  confused  discussion  of  a  similar  problem  in  Commonwealth  v.  Robin- 
«;on  146  Mass.  571,  IG  N.  E.  452  (18SS).  with  which  compare  State  v.  Hyde. 
234*  Mo.  200,  136  S.  W.  316,  Ann.  Cas.  1912D,  191  (1910). 

0  Statement  condensed  and  part  of  opinion  omitted. 


112  THE  COURT  AND  THE  JURY  (Ch.  1 

The  plaintiff  began,  and  brought  forward  facts  to  make  this  improb- 
able, particularly  the  declarations  of  John  Davies,  who  was  reported 
to  have  said  that  he  had  not  married  her,  because  she  was  a  bad  wo- 
man. It  appeared,  however,  that  they  lived  together,  and  passed  as 
man  and  wife.  Some  members  of  the  family  had  treated  her  as  his 
wife ;  others  had  treated  her  daughter  Elizabeth  Stevens  as  their 
relation. 

Witnesses  were  then  called  for  the  defendants,  who  gave  additional 
evidence  to  the  same  effect :  and  then  an  attorney  produced  a  certifi- 
cate of  the  marriage  of  John  Davies  with  Eleanor  Dillon,  and  stated 
that  he  had  received  it  from  Elizabeth  Stevens  when  he  was  inquiring 
into  the  pedigree.  He  was  then  asked  whether  Stevens  made  any 
statement  respecting  her  mother's  marriage;  and  the  question  was 
objected  to  on  various  grounds. 

First :  That  she  was  not  yet  conclusively  proved  to  be  a  member 
of  the  family.'^  The  answer  is,  that  it  was  the  duty  of  the  Judge  to 
decide  whether  it  was  proved  to  him:  and  he  decided  that  it  was. 
There  are  conditions  precedent  which  are  required  to  be  fulfilled  before 
evidence  is  admissible  for  the  jury.  Thus  an  oath,  or  its  equivalent, 
and  competency,^  are  conditions  precedent  to  admitting  viva  voce 
evidence ;  and  apprehension  of  immediate  death  to  admitting  evidence 
of  dying  declarations  f  and  search  to  secondary  evidence  of  lost 
writings;  and  stamp  to  certain  written  instruments:  and  so  is  con- 
sanguinity or  affinity  in  the  declarant  to  declarations  of  deceased  rela- 
tives. The  Judge  alone  has  to  decide  whether  the  condition  has  been 
'  fulfilled.  If  the  proof  is  by  witnesses,  he  must  decide  on  their  cred- 
ibility.    If  counter-evidence  ^^  is  offered,  he  must  receive  it  before  he 

7  See  question  of  declarations  to  prove  pedigree,  chapter  III,  §  2,  VIII,  post, 
G61. 

8  Duller,  J.,  in  Rex  v.  Atwood,  2  Leach,  C.  C.  521  (1788):  "The  distinction 
between  the  competency  and  the  credit  of  a  witness  has  been  long  settled. 
If  a  question  be  made  respecting  his  competency,  the  decision  of  that  ques- 
tion is  the  exclusive  province  of  the  judge;  but  if  the  ground  of  the  objec- 
tion go  to  his  credit  only,  his  testimony  must  be  received  and  left  with  the 
jury,  under  such  directions  and  observations  from  the  court  as  the  cir- 
cumstances of  the  case  may  requii-e,  to  say  whether  they  think  it  sufficiently 
credible  to  guide  their  decision  of  the  case.  An  accomplice,  therefore,  be- 
ing a  competent  witness,  and  the  jury  in  the  present  case  having  thought  him 
worthy  of  credit,  the  verdict  of  guilty,  which  has  been  found,  is  strictly  legal, 
though  found  on  the  testimony  of  the  accomplice  only." 

9  The  King  v.  John,  1  East,  P.  C.  357  (1790),  post.  4(J4. 

10  But  see  Hitching  v.  Eardley,  L.  R.  2  P.  «&  D.  248  (1871),  In  which  Lord 
Penzance  appears  to  have  admitted  similar  evidence  on  a  prima  facie  show- 
ing because  of  the  practical  difficulties  involved  in  any  otlier  course:  "The 
rule  of  law  on  the  subject  is  perfectly  plain.  It  is  that  when  a  witness  is 
called  to  give  evidence  of  the  declarations  of  a  person  whose  connection  with 
the  family  is  in  question,  the  judge  is  to  decide  whether  this  connection  is 
e^ablished.  It  is  obvious  the  application  of  this  rule  nuist  lead  to  some 
practical  difficulties,  where  the  person  whose  declarations  are  tendered  and 
objected  to  is  also  the  person  whoso  legitimacy  is  the  question  in  the  suit, 
and  the  court  must  do  its  best  to  meet  those  difficulties  in  a  practical  way. 
The  defendants  propose  to  give  evidence  of  declarations  of  the  person  whose 


Sec.  3)  ADMISSION   AND   EXCLUSION   OF    RVIDENCE  11.'? 

decides;  and  he  has  no  right  to  ask  the  opinion  of  the  jury  on  the  fact 
as  a  condition  precedent.  See  Bartlett  v.  Smith,  11  M.  &  W.  483.  In 
this  case  the  Judge  thought  the  condition  liad  been  fulfilled ;  and  we 
are  of  the  same  opinion. 

It  was  further  objected,  that  the  question,  whether  Elizabeth  Stev- 
ens was  a  member  of  the  family,  was  in  fact  the  issue  for  the  jury, 
as  she  was  not  contended  to  be  so  unless  she  was  legitimate;  and,  if 
she  was  decided  to  be  legitimate,  her  declarations  to  prove  her  legiti- 
macy were  superfluous.  The  answer  is,  that  neither  the  admissibility 
nor  the  effect  of  the  evidence  is  altered  by  the  accident  that  the  fact 
which  is  for  the  Judge  as  a  condition  precedent  is  the  same  fact  which 
is  for  the  jury  in  the  issue. 

It  was  further  objected  that  the  evidence  of  the  declaration  of  the 
delivery  of  the  marriage  certificate  to  EHzabeth  Stevens  by  her  mother 
ougb.t  not  to  have  been  received.  But  the  handing  down  of  pedigree 
papers  is  a  fact  which  may  be  proved  by  declaration,  according  to  the 
class  of  cases  where  family  pedigrees  have  been  held  admissible  by 
reason  of  their  being  handed  down  from  past  generations.  Rut  this 
declaration  appears  to  us  to  be  no  more  than  the  act  done,  the  handing 
her  marriage  certificate  from  her  own  keeping  to  that  of  her  daugh- 
ter.    *     *     *     Rule  discharged." 

legitimacy  is  in  dispute,  and  it  is  suggested  by  Mr.  Matthews  ttiat,  in  order 
to  determine  whettier  these  declarations  are  admissible,  the  court  ought  to 
have  the  whole  of  the  evidence  in  the  suit  on  both  sides.  The  effect  of  tak- 
ing that  course  would  be  to  postpone  the  reception  of  the  evidence  of  these 
declarations  until  all  the  rest  of  the  evidence  in  the  case  had  been  produced, 
and  then  practically  to  hear  the  whole  of  the  evidence  over  again,  together 
with  those  declarations.  *  *  •  This  shows  the  inconvenience  of  the 
course  suggested  by  the  plaintiffs'  counsel.  It  is  impossible  to  lay  down  an 
abstract  rule  on  the  subject,  for  each  case  must  be  determined  by  its  own 
facts.  ♦  *  *  It  cannot  be  denied  that  a  strong  prima  facie  case  has  been 
made  out,  and  I  think  it  will  be  better  that  r  should  at  once  admit  these 
declarations,  for  the  purpose  of  having  the  whole  case  laid  before  the  jurj-. 
The  jury  will  understand  that  they  will  ultimately  have  to  form  their  own 
opinion  upon  the  matter,  in  the  full  light  of  the  whole  of  the  evidence. 
*  *  *  I  rule  that  I  am  sufficiently  satisfied  of  the  declarant  being  a  mem'- 
ber  of  the  family  for  the  purpose  of  admitting  the  declarations,  and  I  re- 
ject the  evidence  tendered  by  the  plaintiffs  on  the  voir  dire." 

11  Where  declarations  of  an  all<>ged  agent  are  sought  to  be  used  as  ad- 
missions imi)utab!e  to  the  principal,  it  is  for  the  judge  and  not  the  jurv  to 
determine  the  fact  of  agency  as  a  preliniinarv  question.  Dickerman  v  Quin- 
cy  .Mut.  Fire  Ins.  Co.,  67  Vt.  609,  32  Atl.  4S9  (1895) ;  Jones  v.  Hurlburt.  31> 
Barb.  (N.  Y.)  403  (1863). 

HiNT.Ev. — 8 


lU 


THE   COURT  AND  THE  JURY 


(Ch.   1 


BOYLE  V.  WISEMAN. 

(Court  of  Exchequer,  ISoo.    11  Esch.  3G0.) 

This  was  an  action  for  a  libel  originally  published  in  "The  Unlvers," 
a  French  newspaper,  and  afterwards  in  "The  Catholic  Standard"  and 
"The  Tablet,"  two  English  newspapers. ^^  The  case  was  tried  twice, 
and  the  Court  had,  after  the  first  trial,  granted  a  new  trial  on  the 
ground  of  the  improper  reception  of  evidence,  and  also  on  the  ground 
that  the  testimony  of  the  defendant  had  been  improperly  rejected.  The 
cause  was  tried  the  second  time  before  Piatt,  B.,  at  the  last  Spring 
Assizes  for  Surrey,  when  it  was  sought  to  prove  the  publication  of  the 
libel  in  "The  Univers"  by  giving  secondary  evidence  of  the  contents 
of  a  letter  written  by  the  defendant  to  the  Abbe  Cognat,  a  Roman 
Catholic  priest  residing  in  Paris,  and  which  letter  was  alleged  to  con- 
tain admissions  implicating  the  defendant.  The  Abbe  Cognat  had 
refused  either  to  give  up  the  letter  or  to  attend  the  trial  and  produce 
it.  A  witness  called  on  the  part  of  the  plaintiff  was  requested  to  state 
the  contents  of  the  letter  from  memory,  whereupon  the  defendant's 
counsel  handed  a  document  to  the  witness  and  asked  him  whether 
that  was  not  tlie  original  letter,  to  which  the  witness  replied  that  if  it 
was  it  had  been  altered.  It  was  then  proposed,  on  the  part  of  the 
defendant,  to  give  evidence  to  show  that  the  document  tendered  was 
the  original  letter ;  and  it  was  submitted,  that  on  satisfactory  proof  of 
that  fact  the  secondary  evidence  must  be  excluded.  There  had  not 
been  any  notice  to  produce  or  to  admit  tliis  letter.  The  learned  Judge, 
however,  ruled  that  the  defendant  could  not  at  that  "stage  of  the  cause 
give  such  evidence,  but  that  he  might  do  so  when  his  case  came  on. 
The  cause  proceeded,  but  the  defendant  did  not  tender  any  evidence, 
and  a  verdict  was  found  for  the  plaintiff  with  £1000.  damages. 

Shee,  Serjt.,  had  obtained  a  rule  calling  on  the  plaintiff  to  show  cause 
whv  the  verdict  should  not  be  set  aside  and  a  new  trial  had,  on  the 
ground  that  the  evidence  in  question  had  been  improperly  rejected 
and  also  of  the  damages  being  excessive. 

Parke,  B.^^  I  am  of  opinion  that  the  rule  must  be  absolute.  1 
entertain  no  doubt  upon  the  question.  On  a  trial  at  Nisi  Prius,  it  Js^ 
the  sole  duty  of  the  Judge  to  decide  any  question  of  fact  which  may 
arise  in  the  course  of  the  inquiry,  on  which  the  admissibility  of  evi- 
dence depends.  Now,  the  rule  is,  that  secondary  evidence  is  not  ad- 
missible unless  primary  evidence  cannot  be  procured ;  and  before  it 
can  be  admitted,  it  must  be  shown  that  reasonable  efforts  have  been 
made,  and  have  proved  unavailing,  to  procure  the  primary  evidence. 
Such  proof  was  given  in  this  case,  for  the  plaintiff  gave  sufficient  evi- 
dence to  let  in  parol  proof  of  the  contents  of  the  instrument,  if  the 


12  See  the  report  of  this  case.  10  Exch.  6-17. 

13  Opinions   of  Piatt  and  Martin,   BB.,   and  supplemental  opinion  by   Al- 
derson,  V>.,  omitted. 


."^^^ 


Mr 


Sec.  3) 


ADMISSION  AND   EXCLUSION   OF   EVIDENCE 


115 


instrument  itself  had  not  been  produced.  But  the  defendant  inter- 
posed by  producing  a  document  which  he  tendered  as  the  original  let- 
ter. Whether  such  was  the  fact  was  to  be  decided,  for  the  mere  state- 
ment of  the  defendant  that  it  was  is  not  sufficient,  neither  was  the 
statement  of  the  plaintiff's  witness,  tliat  he  saw  the  original  letter,  and 
that  the  document  produced  was  not  the  original.  There  being  these 
conflicting  statements,  the  Judge  was  bound  to  hear  evidence  on  both 
sides,  and  decide  whether  the  document  tendered  by  the  defendant  was 
the  original.  If  he  had  decided  that  it  was  not,  it  would  have  been 
competent  for  the  plaintiff  to  give  the  secondary  evidence  he  offered,, 
and  the  credit  due  to  it  would  be  for  the  jury.  In  such  a  case  the 
Judge  should  hear  the  witnesses  at  length,  for  the  purpose  of  deciding 
whether  the  document  tendered  is  the  original ;  and  if  he  is  of  opin- 
ion that  it  is,  that  document  alone  must  be  read  to  the  jury.  This  is 
the  law  as  laid  down  by  the  Judges  on  the  prosecution  of  Major  Camp- 
bell, 11  W.  &  W.  486,  where  they  expressed  the  opinion,  that,  on  a 
dying  declaration  being  tendered  in  evidence,  it  was  not  competent  to 
the  Judge  to  leave  it  to  the  jury  to  say  whether  the  deceased  knew, 
when  he  made  it,  that  he  was  at  the  point  of  death,  as  such  matter  must 
be  decided  by  the  Judge  and  not  by  the  jury.  The  authority  of  tliat 
case  has  always  been  acknowledged,  and  it  is  now  well-settled  that  all 
these  preliminary  questions  on  which  the  reception  of  evidence  depends 
ought  not  to  be  submitted  to  the  jury  for  their  consideration,  but  must 
be  decided  by  the  Judge  himself. 

Alderson,  B.  I  am  of  the  same  opinion.  There  is  a  material  dif- 
ference between  the  question  whether  a  document,  which  is  an  undis- 
puted original,  ought  to  have  been  received  in  evidence,  and  whether 
secondary  evidence  of  a  particular  document  ought  to  be  received,  on 
the  ground  that  a  document  tendered  as  the  original  is  not  in  fact  the 
original.  It  appears  to  me  that  it  is  upon  the  false  analog}-  between 
these  cases  the  fallacy  of  the  argument  turns.  Where  a  deed  is  re- 
ceived in  evidence,  the  deed  is  proved  in  the  regular  way  by  its  pro- 
duction, and  the  party  seeking  to  alter  the  effect  of  the  evidence  must 
give  his  proof  when  his  turn  comes,  and  the  whole  of  the  evidence 
must  go  to  the  jury.  So,  in  such  a  case  as  occurred  yesterday,  where 
an  old  lady  was  said  to  have  received  love  letters  from  a  person 
against  whom  she  brought  an  action  for  breach  of  promise  of  mar- 
riage, there  was  prima  facie  evidence  that  those  letters  were  in  the 
handwriting  of  the  defendant,  and  they  were  either  the  originals  or 
forgeries ;  but,  whether  they  were  or  were  not  was  not  a  question  of  sec- 
ondary evidence,  an^  the  defendant  was  therefore  obliged  to  wait  till  his 
own  case  came  on  before  he  could  prove  the  falsehood  of  her  statement, 
by  contradicting  the  evidence  of  her  witnesses  who  deposed  to  the  handj 


^ 


t 


s^ 


/ 


J^ 


writing  being 


his.     The  question  of  the  genuineness  of  handwriti 


is  for  the  jury,  as  a  question  of  primary  evidence.    In  both  those  cases 
it  is  primary  evidence,  but  here  the  question  is  what  evidence  are  the 


;es  ^\ 


\ 


116  THE  COURT  AND  THE  JURY  (Ch.  1 

jury  to  receive,  and  not  what  evidence  they  are  to  believe.  It  is  clear 
that  the  plaintiff  was  seeking  to  give  secondary  evidence  of  a  matter 
that  existed  elsewhere.  Where  was  that  document  which  was  the 
primary  evidence,  and  without  the  non-production  of  which  secondary 
evidence  was  altogether  inadmissible?  The  plaintiff's  case  was  that  it 
was  in  France.  The  defendant's  case,  that  it  was  there  in  Court. 
Which  is  right?  If  the  plaintiff's  case  is  right,  he  is  entitled  to  give 
the  secondary  evidence.  If  the  defendant  is  correct,  the  secondar}' 
evidence  is  inadmissible.  Who  then  is  to  determine  whether  that 
document  is  to  be  received  at  all?  Surely  not  the  jury,  for  they  are 
only  to  judge  upon  the  evidence  when  it  is  received.    It  is  the  duty  of 

j  the_ Judge,  and  he  must  determine  whether  it  ought  to  be  received ; 
and  if  for  that  purpose  it  is  necessary  that  he  should  determine  a  ques- 
tion of  fact,  he  must  determine  that  question,  and  the  party  against 
whom  the  Judge  decides  has  his  remedy  by  applying  to  the  Court  to 

Ucorrect  the  error,  if  the  Judge  has  decided  wrongly.  The  question 
of  fact  must  be  submitted,  first,  to  the  Judge,  and  afterwards  to  the 
Court.  If  he  receives  the  evidence,  and  the  Court  are  of  opinion  that 
he  ousfht  not  to  have  received  it,  his  decision  will  be  overruled.  But 
there  is  no  question  for  the  jury  as  to  the  reception  of  the  evidence. 
for  their  duty  does  not  arise  until  after  the  evidence  has  been  received. 
Rule  absolute.^* 


STOWE  V.  QUERNER. 

(Court  of  Exchequer,  1S70.    L,  K.  5  Exch.  155.) 

Bramwell,  B.^"  In  this  case  the  question  which  was  argued  before 
us  yesterday  arose  thus :  During  the  trial  of  an  action  on  a  policy  of 
insurance  it  became  necessary  to  produce  the  policy,  and  the  plaintiffs 
gave  evidence  of  a  duly  stamped  policy  having  been  executed,  and  of 
its  being  in  the  possession  of  the  defendant.  Notice  to  produce  had 
also  been  given.  Upon  its  being  called  for,  however,  the  defendant 
declined  to  produce  it,  and  thereupon  the  plaintiffs  proposed  to  read 
a  document  which  purported  to  be  a  copy,  and  which  they  had  re- 
ceived from  the  defendant's  broker.  The  defendant  objected,  and  of- 
fered to  displace  the  effect  of  the  evidence  of  the  existence  of  the 
policy  which  had  been  given  by  the  plaintiffs,  and  to  render  the  copy 
inadmissible  by  showing  that  no  policy  had  ever  been  executed  at  all. 
The  judge  refused  to  hear  this  interlocutory  evidence,  and  allowed 
the  document  to  be  admitted  and  read.  We  are  all  of  opinion  that  he 
was  right.  If  the  objection  on  the  part  of  the  defendant  had  been  thai 
there  was  a  policy,  but  that  it  was  not  stamped,  it  would  perhaps  have 

1*  Other  preliminary  questions:  Bartlett  v.  Smith,  11  M.  &  W.  483  (1843), 
objection  on  account  of  stamp ;  Cleave  v.  Jones,  7  Exch.  421  (1852),  claim 
of  privile,:?e  for  a  document. 

16  Statement  and  opinions  of  Martin,  Plgott,  and  Cleasby,  BB.,  omitted. 


Sec.  3)  ADMISSION   AND   EXCLUSION   OF  EVIDENCB  117 

been  well  founded.  But  here  it  was  objected  that  there  was  no  policy 
executed  at  all;  an  objection  which  goes  to  the  entire  ground  of  ac- 
tion, and  one  which,  if  it  had  prevailed,  might  have  left  the  jury  noth- 
ing to  decide.  For,  suppose  the  judge  had  ruled  that  the  copy  was 
inadmissible  on  the  ground  that  there  was  no  original  ever  in  exist- 
ence, the  plaintiffs  would  in  fact  have  had  no  case  left,  and  the  judge 
would  himself  have  decided  the  whole  of  it.  The  difference  between 
this  case  and  Boyle  v.  Wiseman,  10  Ex.  647,  24  L.  J.  (Ex.)  160,  is 
very  wide.  There  the  plaintiff  had  the  means,  if  he  had  chosen,  of 
giving  the  alleged  original  in  evidence,  but  here  if  the  copy  had  been 
excluded  the  plaintiffs  would  have  been  left  without  any  means  of 
proof  whatever.  Put  an  illustration  analogous  to  the  present.  Sup- 
pose an  action  to  be  brought  for  libel,  and  a  copy  of  a  letter  which  is 
destroyed,  but  which  contained  the  libel  complained  of,  is  produced 
and  tendered  in  evidence.  Could  the  defendant  say,  "Stop;  I  will 
show  that  no  letter  ^°  was  in  point  of  fact  ever  written,  and  I  call 
upon  you,  the  judge,  to  hear  evidence  upon  this  point,  and  if  I  sat- 
isfy you  that  no  such  letter  ever  existed,  you  ought  not  to  admit  the 
copy?"  Surely  not;  for  that  would  be  getting  the  judge  to  decide 
what  is  peculiarly  within  the  province  of  the  jury.  The  distinction! 
is  really  this :  where  the  objection  to  the  reading  of  a  copy  concedes 
that  there  was  primary  evidence  of  .<;ome  sort  in  existence,  but  defec- 
tive in  some  collateral  matter,  as,  for  instance,  where  the  objection  is 
a  pure  stamp  objection,  the  judge  must,  before  he  admits  the  copy, 
hear  and  determine  whether  the  objection  is  well  founded.  But  where 
the  objection  goes  to  show  that  the  very  substratum  and  foundation  of 
the  cause  of  action  is  wanting,  the  judge  must  not  decide  upon  the 
matter,  but  receive  the  copy,  and  leave  the  main  question  to  the  jury. 

It  was  further  said  there  was  no  stamped  policy  in  existence.  But 
the  real  objection,  as  I  have  already  observed,  was  that  there  was  no 
policy  at  all,  and  therefore,  of  course,  no  stamped  policy.  The  want 
of  stamp  was  not  the  actual  point  relied  on,  and  it  was  in  a  manner 
merged  in  the  other  objection.  We  are,  therefore,  of  opinion  that 
this  rule  should  be  discharged. 

Rule  (for  a  new  trial)  discharged." 

16  Compare  Goodier  v.  Lake,  1  Atkyns,  Ch.  446  (1737),  In  which  the  Lord 
Chancellor  said:  "Where  an  original  note  of  hand  is  lost,  and  a  copy  of  it 
is  offered  in  evidence  to  serve  any  particular  purpose  in  a  cause,  you  must 
show  sufficient  probability  to  satisfy  the  court  that  the  original  note  was 
genuine,  before  you  will  be  allowed  to  read  the  copy." 

See  the  somewhat  contradictory  explanation  in  St.  Croix  Co.  v.  Seacoast 
Canning  Co.,  114  Me.  521,  9G  Atl.  1059  (191G). 

1"  It  is  for  the  jury  to  determine  whether  the  copy  admitted  Is  in  fact 
a  true  copy  of  the  original.     Rosendorf  v.  Baker,  8  Or.  241  (1880). 


i 


X 


^ 


118  THE  COURT  AND  THE  JURY  (Ch.  1 

CAIRNS  V.  MOONEY. 

(Supreme  Court  of  Vermont,  1S90.     62  Yt.  172.  19  Atl.  225.) 

Action  of  assumpsit.  Plea,  the  general  issue.  Trial  by  jury  at  the 
September  term,  1889,  Powers,  J.,  presiding.  Verdict  and  judgment 
for  the  plaintiff.  Exceptions  by  the  defendant.  The  plaintiff  sued 
for  the  price  of  certain  apples  sold  by  her  testator  to  the  defendant. 
The  defendant  claimed  that  the  quality  of  the  apples  was  not  accord- 
ing to  the  contract,  and  offered  to  so  testify  himself.  To  his  testimony 
the  plaintiff  objected,  because  the  other  party  to  the  contract  was  dead. 
Thereupon  the  defendant  insisted,  and  his  evidence  tended  to  show, 
that  the  contract  was  not  made  with  the  testator,  but  with  his  son, 
acting  as  his  ^gent.     The  court  excluded  the  evidence. 

TaFT,  J.  The  defendant  was  not  a  competent  witness,  "unless  the 
contract  in  issue  was  originally  made  with  a  person  who  is  [was] 
living  and  competent  to  testify."  The  defendant  claimed  that  the 
contract  for  the  apples  was  made  with  Ilarvey  Cairns,  acting  as  agent 
for  the  testate,  and  who  was  present  at  the  trial,  and  testified.  Con- 
ceding that  the  testimony  of  the  defendant's  witness  tended  to  estab- 
lish the  fact  of  agency,  the  question  was  one  for  the  court.  The  de- 
fendant insists  that  he  should  have  been  permitted  to  testify,  and  the 
question  of  agency  submitted  to  the  jury;  and,  if  they  found  it  es- 
tablished, they  should  then  consider  the  testimony  of  the  defendant 
upon  the  various  points  upon  which  he  gave  testimony ;  and,  if  they 
did  not  find  the  fact  of  agency  proved,  reject  the  testimony.  It  was  a 
question  of  competency  or  incompetency  of  the  defendant  as  a  wit- 
ness, and  that  question  is  always  for  the  court,  and  should  never  be 
submitted  to  the  jury.  1  Greenl.  Ev.  (14th  Ed.)  §  49,  and  note  a; 
1  Tayl.  Ev.  §  21;  Bartlett  v.  Smith,  11  Mees.  &  W.  483;  Reg.  v. 
Hill,  5  Eng.  Law  &  Eq.  547;  Cook  v.  Mix,  11  Conn.  432;  Holcomb 
V.  Holcomb,  28  Conn.  177;  Harris  v.  Wilson,  7  Wend.  ^N.  Y.)  57; 
Reynolds  v.  Lounsbury,  6  Hill.  (N.  Y.)  534;  Dole  v.  Thurlow,  12 
Mete.  (Mass.)  157;  McManagil  v.  Ross,  20  Pick.  (Mass.)  99.  In  some 
jurisdictions  it  has  been  held  that,  in  doubtful  cases,  it  is  not  improper 
to  refer  the  existence  of  the  facts  upon  which  the  competency  depends 
to  the  jury,  and  in  some  instances  it  is  intimated  that  it  should  be  done. 
Insurance  Co.  v.  Reynolds,  36  Mich.  502 ;  Johnson  v.  Kendall,  20  N. 
H.  304;  Bartlett  v.  Hoyt,  33  N.  H.  151;  Hart  v.  Heilner,  3  Rawle 
(Pa.)  407;  Gordon  v.  Bowers,  16  Pa.  226;  Haynes  v.  Hunsicker,  26 
Pa.  58. 

I      Questions  of  fact  affecting  the  admissibility  of  testimony  often  arise, 
!  and  it  would  be  very  inconvenient,  if  not  impracticable,  to  submit  them 
to  the  decision  of  a  jury.     The  testimony,  as  to  the  competency  of  a 
'  witness,  and  that  of  the  witness  as  to  the  issues  upon  trial,  would 
all  go  to  the  jury,  with  directions  that,  if  they  found  the  witness  in- 
competent, it  would  be  their  duty  to  disregard  his  evidence  upon  the 


.x'V 


^ 


Sec.  3)  ADMISSION   AND   EXCLUSION   OF   EVIDENCE  119 

main  issues,  which  in  many  instances  it  might  be  impossible  to  do, 
Having  heard  the  illegal  testimony  discussed  by  counsel,  the  confu- 
sion which  would  probably  arise  in  separating  the  legal  from  the  il- 
legitimate testimony  would  no  doubt  lead  to  the  rendition  of  erroneous 
verdicts,  with  no  relief  for  the  unfortunate  party;  and  certainly  this 
should  not  be  the  rule  in  a  jurisdiction  where  the  admission  of  illegal 
evidence  is  not  cured  by  a  direction  from  the  court  to  disregard  it. 
State  V.  Hopkins,  50  Vt.  316;  State  v.  Meader,  54  Vt.  126;  Hall  v. 
Jones,  55  Vt.  297;  Rob.  Dig.  p.  700,  pi.  55.  In  Cook  v.  Mix,  supra, 
the  question  was  whether  the  witness  had  an  interest  in  the  event  of 
the  suit,  and  the  court  said  it  "was  a  question  of  fact,  to  be  determined 
on  the  evidence  before  the  court.  It  is  claimed,  in  the  first  place,  that 
the  judge  mistook  the  law  in  not  submitting  this  question  to  the  jury, 
and  this  claim  has  been  gravely  urged  before  this  court.  It  is  suffi- 
cient to  observe  that  the  claim  is  as  unfounded  as  it  is  novel,  that  it 
has  no  support  either  in  principle  or  authority,  and  is  utterly  incapable 
of  being  reduced  to  practice." 

It  is  not  by  any  means,  true  that  all  questions  of  fact  in  a  jury  trial 
must  be  left  to  the  jury.  Numerous  instances  where  the  court  pass 
upon  such  questions  can  be  readily  called  to  mind,  e.  g.,  whether  a 
witness  is  an  expert;  or  a  dying  declarant  entertained  hopes  of  re- 
covery ;  or  a  writing  to  be  used  as  a  test  in  comparison  of  hand-writ- 
ing is  proved;  or  a  witness  has  sufficient  mental  capacity  to  testify, 
or  is  the  husband  or  wife  of  the  party;  or  declarations  are  so  far  a 
part  of  the  res  gestae  as  to  be  admissible ;  or  a  confession  was  induced 
by  threats ;  or  a  document  has  been  duly  or  sufficiently  stamped ;  .  or 
sufficient  search  been  made  for  a  lost  document  to  warrant  the  intro- 
duction of  secondary  evidence.  Many  other  instances  might  be  given. 
In  the  beginning  of  a  jury  trial,  suppose  a  woman  is  offered  as  a  wit- 
ness for  the  plaintiff,  and  the  defendant  objects,  for  that  she  is  the 
wife  of  the  plaintiff.  The  question  is  purely  one  of  fact.  Will  any  one 
claim  that  her  testimony  should  be  given  upon  the  main  issues,  and 
the  question  of  whether  wife  or  not  be  left  to  the  jury,  and  then,  if 
they  find  her  to  be  the  wife,  discard  her  testimony,  but,  if  not,  con- 
sider it?  Conceive  that  in  a  suit  in  favor  of  several  plaintiffs  the 
question  should  arise  in  respect  to  each  one.  Well  might  the  Con- 
necticut court  characterize  the  claim  of  the  defendant  as  unfounded  as 
it  was  novel. 

The  court  below,  not  being  satisfied  from  the  evidence  that  the  con- 
tract in  issue  was  made  with  an  agent  of  the  testate,  properly  held  the 
defendant  incompetent.     Judgment  affirmed. 


120  THE  COURT  AND  THE  JURY  (Ch.  1 

SEMPLE  V.  GALLERY  et  al. 

(Supreme  Court  of  Pennsylvania,  189S.    184  Pa.  95,  39  Atl.  6.) 

Fell,  J.^'  The  court,  at  the  time  a  witness  was  called,  heard  testi- 
mony on  the  question  of  the  good  faith  of  an  assignment  by  which 
the  witness  had  devested  himself  of  all  interest  in  the  controversy,  and 
permitted  him  to  testify.  At  the  close  of  the  testimony  the  court  was 
requested  to  submit  to  the  jury  the  same  question  on  which  it  had 
passed,  and  to  instruct  them  to  disregard  the  testimony  of  the  witness 
if  they  found  that  the  assignment  had  not  been  made  in  good  faith. 
The  sixth  section  of  the  act  of  M^ay  23,  1887  (P.  L.  LS8),  provides  that 
a  person  incompetent  to  testify  as  a  witness  because  of  interest,  may 
become  fully  competent  "by  a  release  or  extinguishment,  in  good  faith, 
of  his  interest,  upon  which  good  faith  the  trial  judge  shall  pass  as  a 
preliminary  question."  It  was  not  intended  by  this  provision  to  make 
the  decision  of  the  court  subject  to  review  by  the  jury,  and  to  change 
the  long-established  rule  of  evidence  that  it  is  the  province  of  the 
court  finally  to  decide  preliminary  questions  of  fact  upon  which  t'le 
admissibility  of  testimony  depends.  Whether  a  release  has  been  exe- 
cuted in  good  faith  is  a  question  preliminary  to  the  question  of  com- 
petency, and  as  such  it  is  decided  as  a  preliminary  question;  but  its 
decision  is  not  preliminary  merely  to  a  second  decision  by  the  jury. 
The  competency  of  a  witness  as  to  questions  of  both  fact  and  law  is 
to  be  determined  by  the  courj:.    *    *    * 

Affirmed. 


BRISTER  v.  STATE. 

(Supreme  Court  of  Alabama,  1855.     26  Ala.  107.) 

The  defendant  Brister  and  several  other  slaves  were  indicted  for 
the  murder  of  one  John  Rickard.  At  the  trial  the  court  admitted 
proof  of  confessions  made  by  the  defendants,  though  the  evidence 
tended  strongly  to  show  that  they  were  made  under  the  fear  of  vio- 
lence. The  court  charged  the  jury  that  they  should  consider  the  con- 
fessions and  act  on  them  if  they  believed  them  to  be  true,  and  refused 
to  charge,  as  requested  by  defendants,  that  they  should  exclude  the 
confessions  unless  they  were  satisfied  that  they  were  made  before  one 
/of  the  defendants  was  whipped.  The  defendants  were  convicted  and 
sued  out  writ  of  error.^* 

Rice,  J.  We  now  proceed  to  the  consideration  of  the  important 
subject  of  confessions.  We  shall  treat  it  with  becoming  caution,  and 
shall  confine  ourselves  as  much  as  possible  to  the  language  used  by 
what  we  deem  the  highest  and  best  authorities  on  the  subject. 

18  Part  of  opinion  omitted. 

i»  Statement  corKlenscd  and  parts  of  opinion  omitted. 


Sec.  3)  ADMISSION   AND   EXCLUSION   OF   EVIDENCE  121 

In  the  first  place,  we  shall  state  the  general  rules  which  should  gov- 
ern the  judge  in  deciding  upon  the  competency — the  admissibility  of 
confessions.  >♦      Jfy^^A. 

(Before  any  confession  can  be  received  in  evidence,  in  a  criminal  ^^  f^ 
case,  it  must  be  shown  that  it  was  voluntary — that  is,  that  it  was  made 
without  the  appliances  of  hope  or  fear,  by  any  other  person.  Whether 
it  was  so  made  or  not,  it  is  for  the  judge  (before  he  admits  it)  to  de- 
termine, upon  consideration  of  the  age,  condition,  situation  and  char- 
acter of  the  prisoner,  and  the  circumstances  under  which  it  was  made. 
The  material  inquiry  is,  whether  the  confession  has  been  obtained  by 
the  influence  of  hope  or  fear,  applied  by  a  third  person  to  the  prisoner's 
mind.  \l  Greenl.  Ev.  §  219;  Wyatt  v.  State,  25  Ala.  9;  Spence  v. 
State,n7  Ala.  197;  Seaborn  and  Jim  v.  State,  20  Ala.  15.    *    *    ♦ 

Where  promises  or  threats  have  been  used,  yet,  if  it  appear  to  the 
satisfaction  of  the  judge  that  their  influence  was  totally  done  away 
before  the  confession  was  made,  the  evidence  will  be  received.  1 
Greenl.  Ev.  §  221. 

In  the  next  place,  we  shall  state  the  rules  which  should  govern  the 
parties  and  the  jury  after  confessions  have  been  admitted  by  the  judge. 

Whenever  a  confession  is  admitted  by  the  court,  the  jyry.  must  take  \ 
it ;  they  cannot  reject  it  as  incompetent ;  they  are  confined  to  its  cred-  I 
ibility  and  effect.  / 

Either  party  has  the  right  to  prove  to  the  jury  the  same  facts  and 
circumstances  which  were  legally  proved  to  the  court  when  it  was 
called  upon  to  decide  the  question  of  competency,  and  all  other  cir- 
cumstances applicable  to  the  confession  or  having  any  legal  bearing 
on  its  credibility  or  eflfect ;  and  if,  in  view  of  all  the  facts  and  cir- 
cumstances proved,  the  jury  entertain  a  reasonable  doubt  as  to  the 
truth  of  the  confession,  they  may  disregard  it,  in  their  decision  of  the 
case,  as  being  incredible,  although  they  cannot  reject  it  as  incompe- 
tent. Commonwealth  v.  Dillon,  4  Dall.  116,  1  L.  Ed.  765;  Common- 
wealth v.  Knapp,  10  Pick.  (Mass.)  477-496,  20  Am.  Dec.  534 ;  State 
V.  Guild,  5  Halst.  163 ;  2  Phil.  Ev.  235-240,  notes  205  and  207.  If 
they  entertain  no  such  reasonable  doubt,  they  ought  not  to  disregard 
•it,  although  they  may  believe  it  was  obtained  by  the  appliances  of 
hope  or  fear  to  the  mind  of  the  prisoner. 

The  rules  laid  down  recognize  the  sphere  of  the  judge  and  the  sphere  ( 
of  the  jury  as  distinct;  and,  whilst  they  prevent  the  jury  from  invad- 
ing the  province  of  the  judge,  they  ahke  prevent  him  from  invading 
their  province.  These  rules,  also,  preserve  the  great  safeguard  thrown 
around  every  person  charged  with  crime — the  right  to  claim  at  the 
hands  of  a  jury  the  benefit  of  every  reasonable  doubt  arising  from  the 
evidence. 

A  majority  of  the  court  are  of  opinion,  that  the  confessions  in  this  \ 
case,  under  the  previous  decisions  of  this  court,  were  improperly  re-  1 
ceived.    *    *    * 


122  THE  COURT  AND  THE  JURY  (Ch.  1 

In  this  connection,  it  is  proper  to  say,  that  it  follows  from  the  rules 
above  stated,  that  there  was  no  error  in  the  second  charge  given  by 
the  court,  nor  in  refusing  the  second  charge  asked  by  the  prisoners. 
If  this  second  charge  asked  had  been  given,  the  jury  would  have  been 
thereby  forced  to  "exclude  their  confessions  from  their  consideration 
entirely,"  although  they  were  convinced  beyond  a  reasonable  doubt 
that  the  confessions  were  true — merely  because  they  could  not 
determine  beyond  a  reasonable  doubt  that  the  confessions  were  made 
before  the  slave  Bill  was  whipped.     *     *     * 

Judgment  reversed  (on  other  grounds).^' 


SLOTOFSKI  V.  BOSTON  ELEVATED  RY.  CO. 
(Supreme  Judicial  Court  of  Massachusetts,  1913.    215  Mass.  31S,  102  N.  E.  417.) 

Action  of  tort  by  the  administratrix  of  Joseph  Slotofski  for  the  death 
of  said  deceased  alleged  to  have  been  caused  by  the  negligence  of  the 
defendant.     Verdict  for  defendant  and  plaintiff  alleged  exceptions.-^ 

De;  Courcy,  J.  The  chief  injuries  received  by  the  deceased  were 
concussion  and  contusions  of  the  brain,  from  which  he  died  within  48 
hours  after  the  accident.  He  was  insensible  immediately  after  his 
fall  and  until  after  treatment  by  a  physician  in  the  drug  store  to  which 
he  was  removed,  was  semiconscious  the  next  day,  and  finally  lapsed 
once  more  into  insensibility.  He  was  constantly  complaining  of  pain 
in  his  head.  A  witness  for  the  plaintiff,  who  understood  the  language 
of  the  deceased,  testified  that  he  thought  the  man's  conversation  in  the 
drug  store  after  he  regained  consciousness  was  incoherent. 

In  the  absence  of  the  jury  a  son  and  daughter  of  the  deceased  testi- 
fied that  certain  declarations  were  made  by  him,  which  were  in  sub- 
stance that  the  conductor  started  the  car  while  he  was  alighting.  The 
judge  excluded  this  testimony  and  ruled  that  under  R.  L.  c.  175,  § 

20  Accord:  Commonwealth  v.  Knapp,  10  Pick.  (Mass.)  477,  20  Am.  Dec. 
534  (1830);  Burton  v.  State,  107  Ala.  lOS,  18  South.  284  (1S94) ;  State  v. 
Brennan,  164  Mo.  487,  65  S.  W.  325  (1901);  Ellis  v.  State,  65  Miss.  44,  3 
South.  188,  7  Am.  St.  Rep.  034  (1887) ;  State  v.  Monich,  74  N.  J.  Law,  522, 
64  Atl.  1010  (1906)  [dvin?  declarations]. 

Contra:  Wilson  v.  United  States,  162  U.  S.  613.  16  Sup.  Ct.  895,  40  L.  Ea. 
1090  (1896),  semble;  Commonwealth  v.  Preece,  140  Mass.  276,  5  N.  E.  494 
(1885) ;  State  v.  Phillips,  118  Iowa,  660,  92  N.  W.  876  (1902),  where  a  large 
number  of  cases  are  collected. 

Holmes,  J.,  in  Com.  v.  Brewer,  164  Mass.  577,  42  N.  E.  92  (1895):  "When 
the  admissibility  of  evidence  depends  upon  a  collateral  fact,  the  regular 
,  course  is  for  the  judge  to  pass  upon  the  fact  in  the  first  instance,  and  then, 
/  if  he  admits  the  evidence,  to  instruct  the  jury  to  exclude  it  if  they  should 
be  of  a  different  opinion  on  the  preliminary  matter.  Commonwealth  v. 
Preece,  140  Mass.  276,  277,  5  N.  E.  494  (1885);  Commonwealth  v.  Kobinson, 
146  Mass.  571,  580  et  seq.,  16  N.  E.  452  (1888)." 

2  1  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  3)  ADMISSION   AND   EXCLUSION   OP   EVIDENCE  123 

66,--  the  court  must  find  that  the  statements  were  made  by  the  deceased 
before  he  could  pass  upon  the  question  whether  the  statements,  if 
made,  were  made  in  good  faith ;  and  he  dechned  to  find  that  they  were 
made  at  all,  on  the  ground  that  he  did  not  believe  that  a  man  whose 
brain  had  been  the  recipient  of  such  a  concussion  could  or  did  make 
such  statements.  The  plaintiff  excepted  to  the  ruling  and  to  this  ex- 
clusion of  evidence. 

The  competency  of  witnesses  and  the  admissibility  of  evidence  that '; 
is  offered  is  for  the  judge  to  determine.    When,  in  order  to  pass  upon 
the  admissibility  in  law  of  a  given  piece  of  evidence,  it  becomes  neces- 
sary to  determine  a  preliminary  question  of  fact,  this  also  the  judge i 
necessarily  must  determine  before  he  admits  the  evidence  to  the  jury.,j 
During  this  proceeding  he  may  direct  that  the  jury  be  retired  out  of 
hearing,  as  was  done  in  this  case,  and  may  hear  evidence  on  both  sides 
to  ascertain  the  incidental  fact.    So  far  as  his  decision  is  of  a  question 
of  fact  merely,  it  is  ordinarily  conclusive  unless  it  appears  that  the 
evidence  was  not  sufficient  to  warrant  the  finding  on  which  the  court 
proceeded.    Commonwealth  v.  Robinson,  146  Mass.  571,  16  N.  E.  452; 
Dexter  v.  Thayer,  189  Mass.  114,  75  N.  E.  223;   4  Wigmore  on  Evi- 
dence, §  2550;   8  Ann.  Cas.  539  note. 

The  practice  in  this  commonwealth  on  certain  issues  in  criminal 
cases  such  as  confessions  and  dying  declarations  is  to  allow  the  accused 
to  reargue  to  the  jury  the  preliminary  question  of  fact  where  the  evi-: 
dence  is  let  in  against  his  objection."  Commonwealth  v.  Reagan,  175 
Mass.  335,  56  N.  E.  577,  78  Am.  St.  Rep.  496;  Commonwealth  v. 
Tucker,  189  Mass.  457,  76  N.  E.  127,  7  L.  R.  A.  (N.  S.)  1056.  But 
even  in  these  exceptional  cases,  if  the  evidence  is  excluded  that  is  an 
end  of  the  matter  unless  some  question  of  law  is  reserved.  As  was 
said  by  Holmes,  J.,  in  Commonwealth  v.  Bishop,  165  Mass.  148,  42  N. 
E.  560,  "the  whole  purpose  of  the  preliminary  action  of  the  judge 
would  be  lost  if  in  all  cases  the  evidence  had  to  be  laid  before  the  jury 
so  as  to  give  them  the  last  word." 

Under  the  statute  in  question,  it  is  a  condition  precedent  to  the  ad- 
missibihty  of  the  declarations  of  a  deceased  person  that  the  presiding 
judge  shall  determine,  as  a  preliminary  finding,  that  the  declaration 
was  made  in  good  faith  before  the  commencement  of  the  action  andi 
upon  the  personal  knowledge  of  the  declarant.  R.  L.  c.  175,  §  66; 
Dickinson  v.  Boston,  188  Mass.  597,  75  N.  E.  68,  1  L.  R.  A.  (N.  S.) 
664;  Glidden  v.  U.  S.  Fidelity  &  Guaranty  Co.,  198  Mass.  109,  84  N. 
E.  143 ;  Carroll  v.  Boston  Elevated  Railway,  210  Mass.  500,  96  N.  E. 
1040.     Where  the  form  of  the  statement  made  by  the  deceased  leaves 

2  2  "A  declaration  of  a  deceased  person  shall  not  be  inadmissible  in  evi- 
dence as  hearsay  if  the  court  finds  that  it  was  made  in  good  faith  before  the 
commencement  of  the  action  and  upon  the  personal  linowledge  of  the  de- 
clarant." 

23  See  Commonwealth  v.  Preece,  140  Mass.  276,  5  N.  E.  494  (1SS5). 


124  ,  THE  COURT  AND  THE  JURY  (Ch.    T 

it  doubtful  whether  it  was  a  statement  of  fact  or  of  opinion,  it  is  for 
the  court  to  decide  in  which  sense  it  was  made.  Stone  v.  Common- 
wealth, 181  Mass.  438,  63  N.  E.  1074;  George  v.  George,  186  Mass. 
75,  71  N.  E.  85;   Gray  v.  Kelley,  190  Mass.  184,  76  N.  E.  724. 

Where,  as  in  the  case  at  bar,  the  judge  cannot  find  the  existence  of 
the  alleged  declaration,  it  is  difficult  to  conceive  how  he  can  find  good 
faith  and  the  other  requisites  plainly  required  by  the  statute.  And  we 
cannot  say  that  he  was  not  justified  by  the  evidence  in  coming  to  the 
conclusion  that  the  deceased  was  in  such  a  mental  state,  in  consequence 
of  his  injuries,  as  to  be  unable  to  make  the  alleged  statements.  The 
plaintiff's  exceptions  relating  to  the  preliminary  inquiry  must  be  over- 
ruled.    *     *     * 

Exceptions  overruled. 


Sec.  1)  WITNESSES  12i 

CHAPTER  II 
WITNESSES 


SECTION  1.— COMPETENCY 
I.  Intelligence  and  Religious  Belief 

OMICHUND  V.  BARKER. 
(Court  of  Chancery.  1744.    Willes,  538.) 

Several  persons  resident  in  the  East  Indies  and  possessing  the  Gen- 
too  religion,^  having  been  examined  on  oath  administered  according  to 
the  ceremonies  of  their  rehgion  under  a  commission  sent  there  from 
the  Court  of  Chancery,  it  became  a  question  whether  those  depositions 
could  be  read  in  evidence  here ;  and  the  Lord  Chancellor,  conceiving 
it  to  be  a  question  of  considerable  importance,  desired  the  assistance 
of  Lee,  Lord  Chief  Justice  B.  R.,  Willes,  Lord  Chief  Justice  C.  B., 
and  the  Lord  Chief  Baron  Parker,  who  after  hearing  the  case  argued 
were  unanimously  of  opinion  that  the  depositions  ought  to  be  read. 

The  case  is  shortly  reported  in  1  Wils.  84,  and  more  fully  in  1  Atk. 
21.    The  following  opinion  was  delivered  by 

Willes,  Lord  Chief  Justice  C.  B.-  I  could  satisfy  myself  by  mere- 
ly saying  that  as  to  the  present  question  I  am  of  the  same  opinion 
as  the  Lord  Chief  Baron ;  but  as  this  is  in  a  great  measure  a  new  case, 
as  it  is  a  question  of  great  importance,  and  as  so  much  has  been  said 
by  the  counsel  on  both  sides,  I  believe  it  will  be  expected  that  I  should 
give  my  reasons  for  the  opinion  which  I  am  going  to  give,  though  in 
the  course  of  my  argument  I  must  necessarily  touch  upon  many  things 
that  have  been  already  better  expressed  by  the  Lord  Chief  Baron. 

Though  it  be  necessary  only  to  give  my  opinion  whether  the  deposi- 
tions taken  in  the  present  case  can  be  read  or  not,  yet  it  may  be  proper 
in  order  to  come  at  this  particular  question,  in  the  first  place  to  co.i- 
sider  the  general  question,  whether  an  infidel,  I  mean  one  who  is  not 
a  Christian,  for  in  that  case  Lord  Coke  certainly  meant  it,  can  be  ad- 
mitted as  a  witness  in  any  case  whatsoever.  If  I  thought  with  my  Lord 
Coke  that  he  could  not,  I  must  necessarily  be  of  opinion  that  the  depo- 
sitions in  the  present  case  could  not  be  read  as  evidence.     On  the 

1  It  appeared  from  the  certificate  of  the  Commissioner  to  the  satisfaction  of 
the  court  that  according  to  this  religion  the  witnesses  believed  in  and  wor- 
shiped a  god  who  would  reward  or  punish  them  according  to  their  deserts. 

•  Part  of  opinion  omitted. 


126  ^  WITNESSES  (Ch.  2 

other  hand,  if  I  thought  that  infidels  in  all  cases  and  under  all  clrcunv 
.stances  ought  to  be  admitted  as  witnesses,  the  consequence  would  be  as 
strong  the  other  way,  that  these  depositions  ought  to  be  read.  But 
if  I  should  be  of  opinion  (and  I  shall  certainly  go  no  further)  that  some 
infidels  in  some  cases  and  under  some  circumstances  may  be  admitted 
as  witnesses,  it  will  then  remain  to  be  considered,  whether  these  infidels, 
who  are  examined  in  the  cause  under  the  circumstances  in  which  they 
appear  in  this  court,  are  legal  witnesses  or  not.     *     *     * 

I  shall  now  proceed  to  explain  the  nature  of  an  oath,  which  will  I 
think  contribute  very  much  towards  the  determination  of  tlie  general 
as  well  as  the  present  question.  If  an  oath  were  merely  a  Christian 
institution,  as  baptism,  the  sacrament,  and  the  like,  I  should  be  forced 
to  admit  that  none  but  a  Christian  could  take  an  oath.  But  oaths  were 
instituted  long  before  Christianity  was  made  use  of  to  the  same  pur- 
poses as  now,  were  always  held  in  the  highest  veneration,  and  are  al- 
most as  old  as  the  creation.  Juramentum  (according  to  Lord  Coke 
himself)  nihil  aliud  est  quam  deum  in  testem  vocare;  and  therefore 
nothing  but  the  belief  of  a  God  and  that  he  will  reward  and  punish 
us  according  to  our  deserts  is  necessaiT'  to  qualify  a  man  to  take  the 
oath.  We  read  of  them  therefore  in  the  most  early  times.  If  we  look 
into  the  sacred  history,  we  have  an  account  in  Genesis,  c.  26,  v.  28  and 
31;  and  again  Genesis,  c.  31,  v.  53,^  that  the  contracts  betwixt  Isaac 
and  Abimelech,  and  between  Jacob  and  Laban,  were  confirmed  by 
mutual  oaths ;  and  yet  the  contracting  parties  were  of  very  different 
religions,  and  swore  in  a  different  form.  It  would  be  endless  to  cite 
the  places  in  the  Old  Testament  where  mention  is  made  of  taking  an 
oath  upon  solemn  occasions,  and  how  great  a  reverence  was  always 
paid  to  it.  I  shall  take  only  notice  of  three,  one  in  Numb.  30,  2.  "He 
that  sweareth  an  oath  bindeth  his  soul  with  a  bond."  Another  in 
Deut.  c.  6,  V.  13.  "Thou  shalt  fear  the  Lord  thy  God,  and  swear  by 
his  name."  And  another,  Psalms  15,  v.  5,  where  a  righteous  man  is 
described  in  this  manner,  "One  who  sweareth  unto  his  neighbour  and 
disappointeth  him  not,  though  it  were  to  his  own  hindrance."    *    *    * 

It  is  very  plain  from  what  I  have  said  that  the  substance  of  an  oath 
has  nothing  to  do  with  Christianity,  only  that  by  the  Christian  religion 
we  are  put  still  under  great  obligations  not  to  be  guilty  of  perjury; 
the  forms  indeed  of  an  oath  have  been  since  varied,  and  have  been  al- 
ways different  in  all  countries  according  to  the  different  laws,  re- 
ligion and  constitution  of  those  countries.  But  still  the  substance  is 
the  same,  which  is  that  God  in  all  of  them  is  called  upon  as  a  witness 
to  the  truth  of  what  we  say.  Grotius  in  the  same  chapter,  sect.  10, 
says,  forma  jurisjurandi  verbis  differt,  re  convenit.  There  are  several 
very  different  forms  of  oaths  mentioned  in  Selden,  vol.  2,  p.  1470;  but 
whatever  the  forms  are  he  says,  that  is  meant  only  to  call  God  to  wit- 
ness to  the  truth  of  what  is  sworn ;  "fit  Deus  testis,"  "fit  Deus  vindex," 
or  "ita  te  Deus  adjuvet,"  are  expressions  promiscuously  made  use  ot 
in   Christian  countries;    and  in  ours  that  oath  hath  been  frequently 


Sec.  1)  COMPETENCY  127 

varied;  as  "ita  te  Deus  adjuvet  tactis  sacrosanctis  Dei  Evangeliis," 
"ita,  etc.,  et  sacrosancta  Dei  Evangelia,"  "ita,  etc.,  et  omnes  sancti." 
And  now  we  keep  only  these  words  in  the  oath,  "So  help  you  God," 
and  which  indeed  are  the  only  material  words,  and  which  any  heathen 
who  believes  a  God  may  take  as  well  as  a  Christian.  The  kissing  the 
book  here,  and  the  touching  the  Bramin's  hand  and  foot  at  Calcutta, 
and  many  other  different  forms  which  are  made  use  of  in  different 
countries,  are  no  part  of  the  oath,  but  are  only  ceremonies  invented  to 
add  the  greater  solemnity  to  the  taking  of  it,  and  to  express  the  asscni 
of  the  party  to  the  oath  when  he  does  not  repeat  the  oath  itself;  but 
the  swearing  in  all  of  them,  be  the  external  form  what  it  will,  is  calling 
God  Almighty  to  be  a  witness,  as  is  clear  from  these  words  of  our 
Savior  in  Matthew,  chap.  23,  v.  21  and  22 :  "Whoso  sweareth  by  the 
Tem.ple  sweareth  by  it  and  by  him  that  dwelleth  therein ;  and  he 
that  sweareth  by  Heaven  sweareth  by  the  Throne  of  God  and  by  him 
tliat  sitteth  thereon."  As  to  what  was  said  by  the  counsel  that  Chris- 
tianity is  part  of  the  law  of  England,  (.which  is  certainly  true  as  it  is 
here  established  by  laws)  and  that  therefore  to  admit  the  oath  of  a 
heathen  is  contrary  to  the  law  of  England;  it  appears  from  what  I 
have  already  laid  down  that  there  is  nothing  in  that  argument,  since 
an  oath  is  no  more  a  part  of  Christianity  than  of  every  other  religion 
in  the  world.    *    *    * 

Having  now  I  think  sufficiently  shewn  that  Lord  Coke's  rule  is 
without  foundation  either  in  scripture,  reason,  or  law,  that  I  may  not 
be  understood  in  too  general  a  sense,  I  shall  repeat  it  over  again,  that 
I  only  give  my  opinion  that  such  infidels  who  believe  a  God  and  that 
he  will  punish  them  if  they  swear  falsely,  in  some  cases  and  under 
some  circumstances,  may  and  ought  to  be  admitted  as  witnesses  in 
this  though  a  Christian  country.  And  on  the  other  hand  I  am  clearly 
of  opinion  that  such  infidels  (if  any  such  there  be)  who  either  do  not 
believe  a  God,  or,  if  they  do,  do  not  think  that  he  will  either  reward 
or  punish  them  in  this  world  ^  or  in  the  next,  cannot  be  witnesses  in 
any  case  nor  under  any  circumstances,  for  this  plain  reason,  because 
an  oath  cannot  possibly  be  any  tie  or  obligation  upon  them.  I  there- 
fore entirely  disagree  with  what  is  reported  to  have  been  said  by 
Lord  Chief  Justice  Ley  in  2  Rol.  Rep.  346,  Tr.  21  Jam.  I,  B.  R.,  that 
in  the  trials  of  matters  arising  beyond  sea  we  ought  to  allow  such 
proofs  as  they  beyond  the  sea  would  allow.  This  would  be  leaving 
this  point  on  so  very  loose  and  uncertain  a  foot,  that  1  cannot  come  in- 
to it ;  for  if  this  rule  were  to  hold,  considering  in  what  a  strange  man- 
ner justice  is  administered  in  some  foreign  parts,  God  knows  what 
evidence  must  be  admitted.  *  *  *  Before  I  conclude  this  head  I 
must  beg  leave  again  to  take  notice  of  what  is  said  by  Lord  Hale, 

3  See  Atwood  v.  Welton,  7  Conn.  66  (1S2S),  for  an  elaborate  opinion  tliat  a 
witness  is  incompetent  who  does  not  believe  that  there  is  any  punishment 
after  this  life. 


128  WITNESSES  (Ch.  2 

that  it  must  be  left  to  the  jury  what  credit  must  be  given  to  these  in- 
fidel witnesses.  For  I  do  not  think  that  the  same  credit  ought  to  be 
given  either  by  a  court  or  a  jury  to  an  infidel  witness  as  to  a  Christian, 
who  is  under  much  stronger  obligations  to  swear  nothing  but  the  truth. 
The  distinction  between  the  competency  and  credit  of  a  witness  is  a 
known  distinction,  and  many  witnesses  are  admitted  as  competent  to 
whose  credit  objections  may  be  afterwards  made.  The  rule  of  evidence 
is  that  the  best  evidence  must  be  given  that  the  nature  of  the  thing  will 
admit.  The  best  evidence  which  can  be  expected  or  required  according 
to  the  nature  of  the  case  must  be  received,  but  if  better  evidence  be  of- 
fered on  the  other  side,  the  other  evidence,  though  admitted,  may 
happen  to  be  of  no  weight  at  all.  To  explain  what  I  mean :  Suppose 
an  examined  copy  of  a  record  (as  it  certainly  may)  be  given  in  evi- 
dence; if  the  other  side  afterwards  produce  the  record  itself,  and  it 
appears  to  be  different  from  the  copy,  the  authority  of  the  copy  is  at 
an  end.  To  come  nearer  to  the  present  case:  Supposing  an  infidel 
who  believes  a  God  and  that  he  will  reward  and  punish  him  in  this 
world,  but  does  not  believe  a  future  state,  be  examined  on  his  oath 
(as  I  think  he  may),  and  on  the  other  side  to  contradict  him  a  Chris- 
tian is  examined,  who  believes  a  future  state  and  that  he  shall  be 
punished  in  the  next  world  as  well  as  in  this,  if  he  does  not  swear  the 
truth,  I  think  that  the  same  credit  ought  not  to  be  given  to  an  infidel  as 
to  a  Christian,  because  he  is  plainly  not  under  so  strong  an  obliga- 
tion.    *    *     * 

The  only  objection  that  remains  against  admitting  this  evidence  is 
that  these  witnesses  will  not  be  liable  to  be  indicted  for  perjury;  be- 
cause they  are  not  sworn  supra  sacrosancta  Dei  Evangelia,  which 
words,  as  was  insisted,  are  necessary  in  every  such  indictment,  and 
therefore  they  are  not  under  the  same  obligations  to  swear  truly  as 
Christian  witnesses  are.  But  this  objection  has  been  in  a  great  meas- 
ure already  answered  by  the  Chief  Baron,  and  it  may  receive  two  plain 
answers ;  first,  that  these  words  "supra  sacrosancta  Dei  Evangelia," 
or  "tactis  sacrosanctis  Dei  Evangeliis,"  are  not  necessary  to  be  in  an  in- 
dictment for  perjury.  They  have  been  omitted  in  many  indictments 
against  Jews,  of  which  several  precedents  have  been  laid  before  us ; 
and  they  are  not  in  the  precedents  of  such  indictments  which  I  find 
in  an  ancient  and  very  good  book,  entitled  West's  Simboleography ; 
but  it  is  only  said  there  "supra  sacramentum  suum  dixit  et  deposuit" 
or  "affirmavit  et  deposuit."  Besides  this  argument,  if  it  prove  any- 
thing, proves  a  great  deal  too  much;  for  if  there  were  anything  in 
it,  many  depositions  even  of  Christians  have  been  admitted,  and  many 
more  must  be  admitted  or  else  there  will  be  a  manifest  failure  of  jus- 
tice, where  the  witnesses  are  certainly  not  liable  to  be  indicted ;  for 
when  the  depositions  of  witnesses  are  taken  in  another  country,  it  fre- 
quently happens  that  they  never  come  over  hither,  or  if  they  cannot 
be  indicted  for  perjury  because  the  fact  was  committed  in  another 


Sec.  1)  COMPETENCY  1-*J 

country.  Those  therefore  who  are  plainly  not  liable  to  be  indicted  for 
perjury  have  often  been,  and  for  the  sake  of  justice  must  be,  admitted 
as  witnesses;    and  so  there  is  an  end  of  this  objection. 

From  what  I  have  said  it  is  plain  that  my  opinion  is  that  these  dep- 
ositions ought  to  be  read  in  evidence.* 


THE  KING  V.  WHITE. 
(Conixnissioners  of  Oyer  and  Terminer,  1786.     I^each,  Cr.  Cas.  4.30.) 

On  the  trial  of  an  indictment  at  the  Old  Bailey  for  horse-stealing, 
in  October  Session,  1786,  Thomas  Atkins  was  called  as  a  witness  to 
support  the  prosecution. 

.  Being  examined  on  the  voir  dire,^  he  said,  that  he  had  heard  there 
was  a  God,  and  believed  that  those  persons  who  tell  lies  would  come  to 
the  gallows,  but  acknowledged  that  he  had  never  learned  the  Cate- 
chism, was  altogether  ignorant  of  the  obligations  of  an  oath,  a  future 
state  of  reward  and  punishment,  the  existence  of  another  world,  or 
what  became  of  wicked  people  after  death. 

The  Court  rejected  him,  as  being  incompetent  to  be  sworn;  for 
that  an  oath  is  a  religious  asseveration,  by  which  a  person  renounces 
the  mercy,  and  imprecates  the  vengeance,  of  heaven,  if  he  do  not 
speak  the  truth ;  and  therefore  a  person  who  has  no  idea  of  the  sanc- 
tion which  this  appeal  to  heaven  creates,  ought  not  to  be  sworn  as  a 
witness  in  any  Court  of  Justice. 


REX  V.  TRAVERS. 
(Court  of   King's   Bench,   1726.     1   Strange,   699.) 

The  defendant  was  indicted  the  last  summer  assizes,   for  a  rape       '   ■    - 
upon  the  body  of  a  child,  then  little  more  than  six  years  old.    And  be- 
cause the  Lord  Chief  Baron  Gilbert  refused  to  admit  the  child  as  an    A/  ^ 
evidence  against  him,  he  was  acquitted. 

But  at  the  same  assizes  an  indictment  w^as  found  against  him  for 
an  assault  with  an  intent  to  ravish  the  said  child.     And  this  indictment  ^    i- 

*  For  the  other  opinions  delivered  In  this  case,  see  1  Atk.  Ch.  Rep.  21.  /  ^ 

6  The  practice  of  examining  a  witness  on  his  voir  dire  as  to  his  religious  v 

belief  was  approved  in  Madden  v.  Catanach.  7  H.  &  N.  3G0  (1S61).     For  the    -     "^    ^ 
contrary  view,  sec  Com.  v.  Smith,  2  Gray  (Mass.)  526.  01  Am.  Dec.  478  (1S54).  " 

Lack  of  religious   belief   may   also  be   shown   by   prior   declarations  of   tlic 
witness.     Thurston  v.  Whitney,  2  Gush.  (Mass.)  104   (1852). 

HiNT.Ev.— 9 


:-U''-^J    '/-'. 


i-  y/'^ 


130  WITNESSES  (Ch.  2 

coming  now  to  be  tried  before  Raymond,  C.  J.,  the  same  objection  was 
now  taken  by  Comyns  and  Darnall,  Serjeants,  viz.  that  the  girl  being 
now  but  seven  years  of  age,  could  not  be  a  witness :  they  insisted  that 
it  had  formerly  been  held,  that  none  under  twelve  years  of  age  could 
be  admitted  to  be  a  witness,  and  said  that  a  child  of  six  or  seven  years 
of  age,  in  point  of  reason  and  understanding,  ought  to  be  considered 
as  a  lunatic  or  madman. 

On  the  other  side  it  was  said,  that  in  capital  cases,  which  con- 
cerned life,  this  objection  might  be  allowed;  but  in  cases  of  misde- 
meanor only,  as  this  was,  such  a  witness  might  be  admitted :  they  in- 
sisted, that  the  objection  went  only  to  the  credit  of  the  witness;  and 
Hale's  P.  C.  says,  that  the  examination  of  one  of  the  age  of  nine  years 
has  been  admitted:  and  a  case  at  the  Old  Bailey  1698,  was  cited, 
where  upon  such  an  indictment  as  this.  Ward,  Chief  Baron,  admitted 
one  to  be  a  witness,  who  was  under  the  age  of  ten  years,  after  the  child 
had  been  examined  about  the  nature  of  an  oath,  and  'had  given  a  rea- 
sonable account  of  it. 

But  Raymond,  C.  J.,  held,  that  there  was  no  difference  betwixt 
offences  capital  and  lesser  offences,  in  this  respect.  And  that  a  per- 
son who  could  not  be  a  witness  in  the  one  case,  could  not  in  the  other. 
The  reason  why  the  law  prohibits  the  evidence  of  a  child  so  young  is, 
because  the  child  cannot  be  presumed  to  distinguish  betwixt  right  and 
wrong:  no  person  has  ever  been  admitted  as  a  witness  under  the  age 
of  nine  years,  and  very  seldom  under  ten.  At  the  Old  Bailey  in 
1704  this  point  was  thoroughly  debated  in  the  case  of  one  Steward, 
who  was  indicted  upon  two  indictments  for  rapes  upon  children.  The 
first  was  a  child  of  ten  years  and  ten  months,  and  yet  that  child  was 
not  admitted  as  a  witness,  before  other  evidence  was  given  of  strong 
circumstances,  as  to  the  guilt  of  the  defendant,  and  before  the  child 
had  given  a  good  account  of  the  nature  of  an  oath.  The  second  in- 
dictment against  Steward  was  attempted  to  be  maintained  by  the  evi- 
dence of  a  child  of  between  six  and  seven  years  of  age:  but  it  was 
unanimously  agreed,  that  a  child  so  young  could  not  be  admitted  to 
be  an  evidence,  and  the  child's  testimony  was  rejected,  without  in- 
quiring into  any  circumstances  to  give  it  credit.  And  it  was  merely 
upon  the  authority  of  Hale's  P.  C.  where  it  is  said,  that  a  child  of 
ten  years  of  age  may  be  a  witness,  that  the  other  child  of  that  age 
was  admitted  to  be  a  witness  in  the  first  indictment.  And  in  the  pres- 
ent case,  the  child  was  refused  to  be  admitted  a  witness.  And  there 
not  being  evidence  sufficient  without  her,  the  defendant  was  acquitted." 

« In  1789,  the  following  rule  was  announced  in  Brazier's  Case,  Leach, 
Crown  Cases,  237:  "No  testimony  whatever  can  be  legally  received  except 
upon  oath ;  and  that  an  infant,  though  under  the  age  of  seven  years,  may  be 
sworn  in  a  criminal  prosecution,  provided  such  infant  appears,  on  strict 
examination  by  the  Court,  to  possess  a  sufficient  knowledge  of  the  nature 
and  consequences  of  an  oath,  for  there  is  no  precise  or  fixed  rule  as  to  the 
time  within  which  infants  are  excluded  from  giving  evidence;  but  their 
admissibility  depends  Upon  the  sense  and  reason  they  entertain  of  the  dan- 


Sec.  1)  COMPETENCY  131 


HRONECK  V.  PEOPLE. 

(Supreme  Court  of  Illinois,  1S90.     134  111.  139,  24  N.  E.  861,  8  L.  R.  A.  837, 

23  Am.  St.  Kep.  652.) 

•  Baker,  ].''  The  plaintiff  in  error,  John  Hroneck,  was  indicted  with 
Frank  Chapek,  Frank  Chleboun,  and  Rudolph  Sevic  for  violation  of 
an  act  of  the  legislature  of  this  state  entitled  "An  act  to  regulate  the 
manufacture,  transportation,  use,  and  sale  of  explosives,  and  to  pun- 
ish an  improper  use  of  the  same,"  approved  June  16,  1887,  and  in  force 
July  1,  1887.  Rev.  St.  1889,  c.  38,  §§  54h-54n.  The  first  count 
charged  the  defendants  with  unlawfully  making  dynamite,  with  the 
unlawful  intention  of  destroying  the  lives  of  certain  persons  therein 
named ;  and  in  the  five  remaining  counts  the  defendants  were  charged 
successively  in  such  several  counts  with  manufacturing,  compounding, 
buying,  selling,  and  procuring  dynamite,  with  the  same  unlawful  pur- 
pose and  intent.  The  defendant  Hroneck  was  alone  put  upon  trial,  and 
that  trial  resulted  in  a  verdict  of  guilty,  and  fixing  his  punishment  at 
12  years'  imprisonment  in  the  penitentiary.  Motions  for  a  new  trial 
and  in  arrest  of  judgment  were  severally  overruled,  and  the  said  de- 
fendant was  sentenced  on  the  verdict.  Numerous  grounds  are  urged 
for  reversal,  which  we  shall  consider,  substantially,  in  the  order  they 
are  made.     *     *     * 

Objection  is  made  to  the  competency  of  Frank  Chleboun,  a  witness 
for  the  people,  who  was  permitted  to  testify  over  the  objection  of  the 
defendant.  He  was  examined  upon  his  voir  dire,  and  avowed  his 
belief  in  the  existence  of  God  and  "a  hereafter;"  that  he  believed,  if 
he  swore  falsely,  he  would  be  punished  under  the  criminal  laws  of  the 
state ;  that  he  had  never  thought  seriously  of  whether  God  would 
punish  him  either  in  this  world  or  the  next,  and  had  never  considered 
the  question  whether  he  would  be  punished  for  false  swearing  in  any 
other  way  than  by  that  inflicted  by  the  law.  He  had,  it  seems,  no 
religious  belief  or  conviction  of  his  accountability  to  the  Supreme 
Being,  either  in  this  world  or  in  any  after  life.  The  test  of  the  com- 
petency of  a  witness  in  respect  to  religious  belief,  as  generally  held, 
is,  does  the  witness  believe  in  God,  and  that  he  will  punish  him  if  he 
swears  falsely?  It  is  stated  by  Rapalje  in  his  Law  of  Witnesses 
(section  11)  that  "the  great  weight  of  authority  in  this  country  now  is 
that  it  is  immaterial  whether  the  witness  believes  God's  vengeance  will 
overtake  him  before  or  after  death." 

This  doctrine  was  approved  in  Railroad  Co.  v.  Rockafellow,  17  111. 

ger  and  impiety  of  falsehood,  which  is  to  be  collected  from  their  answers  te 
questions  propounded  to  them  by  the  Court ;  but  if  they  are  found  incompe- 
tent to  take  an  oath,  their  testimony  cannot  be  received.  They  (the  judges) 
determined,  therefore,  that  the  information  of  the  infant,  which  had  ire<?n 
given  In  evidence  in  the  present  case,  ought  not  to  have  been  received." 
7  Parts  of  opinion  omitted. 


132  WITNESSES  (Ch.  2 

541,  where,  after  a  consideration  of  the  authorities,  it  was  held  that 
all  persons  are  competent  to  be  sworn  as  witnesses  who  believe  there  is 
a  God,  and  that  he  will  punish  them,  either  in  this  world  or  the  next, 
if  they  swear  falsely,  and  that  a  want  of  such  belief  rendered  them 
incompetent  to  take  an  oath  as  witnesses.  This  case,  seemingly,  over- 
ruled the  doctrine  of  the  earlier  case  of  Noble  v.  People,  Breese,  54. 
Without  pausing  here  to  determine  whether  the  court  erred  in  sub- 
jecting the  witness  to  an  examination  touching  his  religious  belief, 
(Rap.  Wit.  §  12,  and  cases  cited,)  it  may  be  said  that  the  better  prac- 
tice, and  that  which  now  prevails,  forbids  the  examination  of  the  wit- 
ness in  respect  thereof  on  his  voir  dire.  If  there  was  error  in  this 
regard,  it  was  committed  at  the  instance  of  the  defendant,  and  in  his 
interest;    and  he  cannot  complain. 

Returning  to  the  question  of  the  competency  of  the  witness,  the 
rule  seems  to  be  as  above  stated,  unless  changed  by  constitutional  pro- 
vision or  legislative  enactment.  The  tendency  of  modern  times  by  the 
courts  and  in  legislation  is  towards  liberalizing  the  rule,  and  in  many 
jurisdictions'  incompetency  for  the  want  of  religious  belief  has  been 
abolished.  See  Rap.  Wit.  §  13,  and  Whart.  Ev.  §  395.  Has  the  rule 
announced  by  this  court  in  Railroad  Co.  v.  Rockafellow  been  changed 
in  this  state?  By  section  3  of  article  2  of  the  constitution  of  1870,  it 
would  seem  that  a  radical  change  was  effected  in  respect  to  the  matter 
under  consideration.  This  section  guaranties  non-interference  of  the 
state  with  the  religious  faith  of  its  citizens.  In  Chase  v.  Cheney,  58 
111.  509,  11  Am.  Rep.  95,  it  was  said:  "The  only  exception  to  uncon- 
trolled liberty  is  that  acts  of  licentiousness  shall  not  be  excused,  and 
practices  inconsistent  with  the  peace  and  safety  of  the  state  shall  not 
be  justified."  The  section  provides:  "No  person  shall  be  denied  any 
civil  or  political  right,  privilege,  or  capacity  on  account  of  his  religious 
opinions;  but  the  liberty  of  conscience  hereby  secured  shall  not  be 
construed  to  dispense  with  oaths  or  affirmations,  excuse  acts  of  licen- 
tiousness, or  justify  practices  inconsistent  with  the  peace  or  safety  of 
the  state." 

No  religious  belief  is  required  to  qualify  a  citizen  to  take  an  oath, 
and  no  citizen  can  be  excused  from  taking  an  oath  or  affirmation  be- 
cause of  his  religious  belief.  The  liberty  of  conscience  secured  by 
the  constitution  is  not  to  be  construed  as  dispensing  with  oaths  or  af- 
firmations in  cases  where  the  same  are  required  by  law.  No  man, 
because  of  his  religious  belief,  is  to  be  excused  from  taking  the  pre- 
scribed oath  of  office  before  entering  upon  the  discharge  of  the  public 
duty ;  nor  can  he  be  permitted  to  testify  because  of  such  religious  belief 
or  opinion  except  upon  taking  the  oath,  or  making  the  affirmation,  re- 
quired by  law.  Now,  as  before  the  adoption  of  this  provision,  oaths 
are  to  be  taken,  and  affirmations  made,  whenever  required  by  law ;  but 
the  right  to  take  such  oath  or  make  such  affirmation,  if  such  right  be  a 
civil  right,  privilege,  or  capacity,  cannot  be  denied  to   any  citizen.     It 


Sec.  1)  COMPETENCY  133 

is  said  that  one  who  holds  proscribed  religious  opinions  is  incompetent 
— that  is,  has  not  the  legal  capacity — to  testify.  The  incapacity,  if  it 
exists,  grows  out  of,  and  is  based  upon,  his  failure  to  hold  certain  re- 
ligious beliefs  and  opinions  in  accord  with  the  prevailing  religious 
opinions  of  the  people ;  and  the  contention  is  that  he  should  not,  by  rea- 
son of  such  incapacity,  be  permitted  to  testify,  however  great  and  im- 
portant the  interest  at  stake  to  himself,  his  family,  his  neighbor,  or 
the  state. 

It  is  clear  from  the  authorities  that  the  rule  contended  for  does 
not  apply  when  the  witness  is  testifying  in  his  own  behalf ;  but  if  the 
life,  liberty,  reputation,  or  property  of  his  family  or  neighbor  be  in- 
volved, or  his  testimony  be  necessary  to  the  protection  of  society,  he  is, 
under  such  rule,  to  be  excluded  from  the  privilege  of  testifying  in 
courts  of  justice  because  of  such  incapacity.  If  it  exists  at  all,  the 
incapacity  is  created  by  law,  and  it  is  therefore  a  civil  incapacity.  The 
constitution  provides  that  no  person  shall  be  denied  any  civil  or  polit- 
ical right,  privilege,  or  capacity  on  account  of  his  religious  opinions. 
In  Bouvier's  Law  Dictionary,  capacity  is  defined  to  be  "ability,  pow- 
er, qualification,  or  competency  of  persons,  natural  or  artificial,  for 
the  performance  of  civil  acts  depending  on  their  state  or  condition  as 
defined  or  fixed  by  law."  It  is  also  defined  as  follows :  "Power ;  com- 
petency ;  qualification ;  ability,  power,  or  qualification  to  do  certain 
acts."  2  Amer.  &  Eng.  Cyclop.  Law,  722.  The  obvious  meaning  of 
the  provision  in  the  constitution  is  that  whatever  civil  rights,  privileges, 
or  capacities  belong  to  or  are  enjoyed  by  citizens  generally,  shall  not  be 
taken  from  or  denied  to  any  person  on  account  of  his  religious  opin- 
ions. 

As  said  by  the  supreme  court  of  Kentucky  in  construing  a  similar 
provision  of  the  constitution  of  that  state  in  Bush  v.  Com.,  80  Ky.  244 : 
"It  is  a  declaration  of  an  absolute  equality,  which  is  violated  when  one 
class  of  citizens  is  held  to  have  the  civil  capacity  to  testify  in  a  court 
of  justice  because  they  entertain  a  certain  opinion  in  regard  to  religion, 
while  another  class  is  denied  to  possess  that  capacity  because  they  do 
not  conform  to  the  prescribed  belief."  It  is  manifest  that,  if  the  legis- 
lature may  prescribe  the  test  of  belief  in  rewards  and  punishments, 
they  may  impose  any  other  test  or  qualification  that,  in  the  judgment 
of  those  entertaining  the  dominant  belief,  may  be  necessary  to  attord 
the  requisite  sanction.  In  Perry's  Case,  3  Grat.  (Va.)  632,  a  like  con- 
clusion was  reached  in  construing  a  constitutional  provision  that  "all 
men  shall  be  free  to  profess,  and  by  argument  maintain,  their  opin- 
ions in  matters  of  religion ;  and  the  same  shall  in  no  wise  affect,  dimin- 
ish, or  enlarge  their  civil  capacities." 

We  are  of  the  opinion  that  the  eft'ect  of  this  constitutional  provision 
is  to  abrogate  the  rule  which  obtained  in  this  state  prior  to  the  consti- 
tution of  1870,  and  that  there  is  no  longer  any  test  or  qualification  in 
respect  to  religious  opinion  or  belief,  or  want  of  the  same,  which  af- 


134  WITNESSES  (Ch.  2 

fects  the  competency  of  citizens  to  testify  as  witnesses  in  courts  of 
justice.     It  follows  that  there  was  no  error  in  permitting  the  witness 
to  testify,     *     *     * 
Judgment  affirmed.* 


REX  V.  WILLIAMS. 

(Court  of  King's  Bench  at  Nisi  Prius,  1S36.     7  Car.  &  P.  320.) 

The  prisoner  was  indicted  for  the  murder  of  William  Williams,  her 
husband. 

On  the  part  of  the  prosecution,  Priscilla  Williams,  a  daughter  of 
the  deceased  and  of  the  prisoner,  aged  eight  years,  was  called  as  a 
witness ;  and  on  her  examination  by  the  learned  Judge,  it  appeared 
that  before  the  death  of  the  deceased,  which  took  place  about  sixteen 
weeks  before  the  trial,  the  death  being  on  the  3rd  of  April,  and  the 
trial  on  the  23rd  of  July,  the  witness  never  heard  of  God,  or  of  a  fu- 
ture state  of  rewards  and  punishments ;  and  that  she  never  prayed, 
nor  knew  the  nature  of  an  oath ;  but  that  since  the  death  of  the  de- 
ceased she  had  been  visited  twice  by  a  reverend  clergyman,  who  had 
given  her  some  instruction  as  to  the  nature  and  obligation  of  an  oath. 
She  said  she  should  go  to  hell  if  she  told  a  lie,  and  that  hell  was  under 
the  kitchen  grate;  but  she  had  still  no  intelligence  as  to  religion  or  a 
future  state. 

John  Evans,  for  the  prisoner.  I  submit  that  this  witness  ought  not 
to  be  examined ;  for  if  it  were  sufficient  that  a  witness  should  under- 
stand the  nature  of  an  oath  merely  from  information  recently  com- 
municated, a  clergyman  might  always  be  called  to  instruct  a  witness  as 
to  the  nature  of  an  oath  when  the  witness  came  into  the  box  to  be 
examined  on  the  trial. 

Chilton,  for  the  prosecution.  It  is  every  day's  practice  to  put  off 
a  trial  in  order  that  a  witness  may  be  instructed  as  to  the  nature  of  an 
oath;  and  this  was  held  in  the  case  of  Rex  v.  Wade,  R.  &  M.  C.  C.  86. 

PaTteson,  J.  I  must  be  satisfied  that  this  child  feels  the  binding 
obligation  of  an  oath  from  the  general  course  of  her  religious  educa- 
tion. The  effect  of  the  oath  upon  the  conscience  of  the  child  should 
arise  from  religious  feelings  of  a  permanent  nature,  and  not  merely 
from  instructions,  confined  to  the  nature  of  an  oath,  recently  commu- 
nicated to  her  for  the  purposes  of  this  trial;  and  as  it  appears  that, 
previous  to  the  happening  of  the  circumstances  to  which  this  witness 
comes  to  speak,  she  had  had  no  religious  education  whatever,  and  had 

8  In  most  of  the  states  this  disqualification  has  been  expressly  removed  by 
statute.  For  tlie  present  state  of  the  law  in  the  various  jurisdictions,  see 
note  to  State  v.  Washington,  42  L.  R.  A.  553  (1S97). 


Sec.  1)  COMPETENCY  135 

never  heard  of  a  future  state,  and  now  has  no  real  understanding  on 
the  subject,  I  think  that  I  must  reject  her  testimony. 
The  child  was  not  examined. 


Verdict — Not  guilty, 


g 


WHEELER  V.  UNITED  STATES. 

(Supreme  Court  of  United  States,  1895.     159  U.  S.  523,  16  S.  Ct.  93,  40  L. 

Ed.  244.) 

Mr.  Justice  Brewer  ^°  delivered  the  opinion  of  the  court. 

On  January  2,  1S95,  George  L.  Wheeler  Avas  by  the  Circuit  Court 
of  the  United  States  for  the  Eastern  District  of  Texas  adjudged  guil- 
ty of  the  crime  of  murder,  and  sentenced  to  be  hanged;  whereupon 
he  sued  out  this  writ  of  error.    *    *    * 

The  remaining  objection  is  to  the  action  of  the  court  in  permitting 
the  son  of  the  deceased  to  testify.  The  homicide  took  place  on  June 
12,  1894,  and  this  boy  was  five  years  old  on  the  5tli  of  July  following. 
The  case  was  tried  on  December  21,  at  which  time  he  was  nearly  five 
and  a  half  years  of  age.  The  boy,  in  reply  to  questions  put  to  him 
on  his  voir  dire,  said,  among  other  things,  that  he  knew  the  difference 
between  the  truth  and  a  lie ;  that  if  he  told  a  lie,  the  bad  man  would 
get  him,  and  that  he  was  going  to  tell  the  truth.     When  further  ask- 

8  Dent,  J.,  in  State  v.  Michael,  37  W.  Va.  565,  16  S.  E.  803,  19  L.  R.  A. 
605  (1893): 

"The  judge  appears  to  have  purposely  avoided  any  reference  to  a  future 
state,  or  of  God,  or  any  other  question  that  would  make  known  the  religious 
sentiment  or  feeling  of  the  child,  if  she  had  any.  And  on  the  witness  stand, 
in  answer  to  the  question  if  her  mother  had  ever  taught  her  anything  about 
God  or  Christ,  she  replies,  'No,'  and  says,  further,  that  she  knows  noth- 
ing about  God,  except  that  he  makes  babies,  and  throws  them  down  tc 
the  doctors — a  falsehood  that  had  evidently  been  taught  to  her,  as  her  only 
light  on  the  existence  of  her  Creator. 

"Now  in  these,  as  in  all  her  answers,  she  simply  gives  vent  to  her  child- 
ish prattle,  and  such  things  as  have  been  told  her  to  say.  From  none  of 
her  answers  can  her  religious  or  moral  accountability  for  falsehood  be 
gathered.  She  knows  nothing  about  God,  nothing  about  Christ,  has  had  no 
religious  training  or  instruction,  is  only  Ave  years  of  age,  has  never  been 
to  school,  can  not  read,  does  not  know  the  letters  of  the  alphabet,  and  seems 
to  have  been  greatly  neglected  by  her  parents,  who  are  from  the  humbler 
walks  of  life.  And  the  prosecution,  by  failing  to  ask  her  questions  con- 
cerning the  distinguishing  element  of  the  crime  charged,  admit  her  incom- 
petency to  testify  concerning  the  same. 

"They  certainly  recognized  her  incapacity  to  answer  such  question,  and 
for  the  same  reason  she  was  not  a  competent  subject  for  a  rigid  cross-ex- 
amination. 

"Unless  we  throw  open  the  doors  to  any  child,  however  young,  who  can 
talk  and  answer  questions  of  simple  form,  and  loading,  and  assume  that 
every  child,  from  birth,  knows  the  sanctity  of  an  oath,  we  must  draw  the 
line  of  incompetency,  somewhere,  and  that  lino,  as  indicated  by  the  wis- 
dom of  many  decisions  founded  upon  reason  and  justice,  is  that,  where  a 
child  is  of  such  tender  years  and  feeble  intelligence  as  to  have  no  concep- 
tion of  the  religious  or  moral  significance  of  an  oath,  it  is  not  competent 
to  testify." 

10  Fart  of  opinion  omitted. 


136  WITNESSES  (Ch.  2 

ed  what  they  would  do  with  him  in  court  if  he  told  a  lie,  he  replied 
that  they  would  put  him  in  jail.  He  also  said  that  his  mother  had 
told  him  that  morning  to  "tell  no  lie,"  and,  in  response  to  a  question  as 
to  what  the  clerk  said  to  him  when  he  held  up  his  hand,  he  answered, 
"Don't  you  tell  no  story."  Other  questions  were  asked  as  to  his  resi- 
dence, his  relationship  to  the  deceased,  and  as  to  whether  he  had  ever 
been  to  school,  to  which  latter  inquiry  he  responded  in  the  negative. 
As  the  testimony  is  not  all  preserved  in  the  record,  we  have  before  us 
no  inquiry  as  to  the  sufficiency  of  the  testimony  to  uphold  the  verdict, 
and  are  limited  to  the  question  of  the  competency  of  this  witness. 

That  the  boy  was  not  by  reason  of  his  youth,  as  a  matter  of  law, 
absolutely  disqualified  as  a  witness  is  clear.  While  no  one  would 
think  of  calling  as  a  witness  an  infant  only  two  or  three  years  old, 
there  is  no  precise  age  which  determines  the  question  of  competency. 
This  depends  on  the  capacity  and  intelligence  of  the  child,  his  ap- 
preciation of  the  difiference  between  truth  and  falsehood,  as  well  as 
of  his  duty  to  tell  the  former.  The  decision  of  this  question  rests 
primarily  with  the  trial  judge,  who  sees  the  proposed  witness,  notices 
his  manner,  his  apparent  possession  or  lack  of  intelligence,  and  may 
resort  to  any  examination  which  will  tend  to  disclose  his  capacity  and 
intelligence,  as  well  as  his  understanding  of  the  obligations  of  an  oath. 
As  many  of  these  matters  cannot  be  photographed  into  the  record,  the 
decision  of  the  trial  judge  will  not  be  disturbed  on  review,  unless 
from  that  which  is  preserved  it  is  clear  that  it  was  erroneous. 

These  rules  have  been  settled  by  many  decisions,  and  there  seems  to 
be  no  dissent  among  the  recent  authorities.  In  Brasier's  Case,  1 
Leach,  Crown  Cas.  199,  it  is  stated  that  the  question  was  submitted 
to  the  twelve  judges,  and  that  they  were  unanimously  of  the  opinion 
"that  an  infant,  though  under  the  age  of  seven  year's,  may  be  sworn 
in  a  criminal  prosecution,  provided  such  infant  appears,  on  strict  ex- 
amination by  the  court,  to  possess  a  sufficient  knowledge  of  the  nature 
and  consequences  of  an  oath ;  for  there  is  no  precise  or  fixed  rule  as 
to  the  time  within  which  infants  are  excluded  from  giving  evidence, 
but  their  admissibility  depends  upon  the  sense  and  reason  they  enter- 
tain of  the  danger  and  impiety  of  falsehood,  which  is  to  be  collected 
from  their  answers  to  questions  propounded  to  them  by  the  court." 
See,  also,  1  Greenl.  Ev.  §  367;  1  Whart.  Ev.  §§  398^00;  1  Best, 
Ev.  §§  155,  156;  State  v.  Juneau,  88  Wis.  180,  59  N.  W.  580,  24  L. 
R.  A.  857,  43  Am.  St.  Rep.  877;  Ridenhour  v.  Railway  Co.,  102  Mo. 
270,  13  S.  W.  889,  and  14  S.  W.  760;  McGuff  v.  State,  88  Ala.  147, 
7  South.  35,  16  Am.  St.  Rep.  25 ;  State  v.  Eevy,  23  Minn.  104,  23  Am. 
Rep.  678:  Davidson  v.  State,  39  Tex.  129;  Com.  v.  Mullins,  2  Allen 
(Mass.)  295;  Peterson  v.  State,  47  Ga.  524;  State  v.  Edwards,  79  N. 
C.  648;  State  v.  Jackson,  9  Or.  457;   Blackwell  v.  State,  11  Ind.  196. 

These  principles  and  authorities  are  decisive  in  this  case.  So  far  as 
can  be  judged  from  the  not  very  extended  examination  which  is  found 
in  the  record,  the  boy  was  intelligent,  understood  the  difference  be- 


Sec.  1)  COMPETENCY  137 

tween  truth  and  falsehood,  and  the  consequences  of  telling  the  lat- 
ter, and  also  what  was  required  by  the  oath  which  he  had  taken.  At 
any  rate,  the  contrary  does  not  appear.  Of  course,  care  must  be  tak- 
en by  the  trial  judge,  especially  where,  as  in  this  case,  the  question  is 
one  of  life  or  death.  On  the  other  hand,  to  exclude  from  the  witness 
stand  one  who  shows  himself  capable  of  understanding  the  differ- 
ence between  truth  and  falsehood,  and  who  does  not  appear  to  have 
been  simply  taught  to  tell  a  story,  would  sometimes  result  in  staying 
the  hand  of  justice. 

We  think  that,  under  the  circumstances  of  this  case,  the  disclosures 
on  the  voir  dire  were  sufficient  to  authorize  the  decision  that  the  wit- 
ness was  competent,  and  therefore  there  was  no  error  in  admitting  his 
testimony.  These  being  the  only  questions  in  the  record,  the  judg- 
ment must  be  affirmed. 

Judgment  affirmed.-^^ 


HARTFORD  v.  PALMER.  '"  ^^^ 

(Supreme  Court  of  New  York,  1S19.     16  Johns.  143.) 

In  error,  on  certiorari  to  a  Justice's  Court. 

In  this  case  a  verdict  and  judgment  were  rendered  for  the  defendant 
below,  on  which  the  plaintiff  below  brought  a  certiorari ;  and  the  only 
question  arising  on  the  return  was,  whether  the  justice  ought  to  have 
refused  to  swear  a  witness,  who  was,  when  offered  to  testify,  in  a  state 
of  intoxication. 

Per  Curiam.  We  are  of  opinion,  that  the  justice  decided  correctly 
in  refusing  to  swear  the  witness.  Peake  lays  down  this  general  prop- 
osition, which  cannot  fail  to  command  the  assent  of  all  mankind: 
"That  all  persons  who  are  examined  as  witnesses,  must  be  fully  pos- 
sessed of  their  understanding,  that  is,  such  an  understanding  as  enables 
them  to  retain  in  memory  the  events  of  which  they  have  been  witnesses, 
and  gives  them  a  knowledge  of  right  and  wrong ;  that,  therefore,  idiots 
and  lunatics,  while  under  the  influence  of  their  malady,  not  possessing 
this  share  of  understanding,  are  excluded."  This  principle,  neces- 
sarily, excludes  persons  from  testifying,  who  are  besotted  with  intox- 
ication, at  the  time  they  are  offered  as  witnesses ;  for  it  is  a  temporary 

11  See  State  v.  Washington,  49  La.  Ann.  1G02,  22  South.  841,  42  L.  R.  A. 
553  (1S97),  (liscriuiiuating  between  intelligence  and  religious  belief  in  the 
case  of  a  young  child.  , 

Under  most  of  the  statutes  it  is  sufficient  if  a  child  has  the  necessary  ln4 
telligeuce  and  appreciates  the  moral  duty  to  tell  the  truth.     He  need  notl 
fuUv  understand   the  nature  of  an  oath,   or  have  any   particular  religiousl 
belief.     Clark  v.   Finnegan,   127   Iowa,   G14,   103   N.    W.   970   (1905);   Com.   v.\ 
Furman,  211   Pa.  549,  CO  Atl.  10S9,  107   Am.   St.   Rep.  594   (1905);   State  v.  ) 
Reddington,  7  S.  D.  368.  64  N.  W.  170  (1895). 

A  child,  who  did  not  understand  the  nature  of  an  oath  or  the  consequences 
of  falsehood,  was  held  incompetent  in  State  v.  Greenberg,  87  N.  J.  Law,  120, 
93  Atl.  G84   (1915). 


138  WITNESSES  (Ch.  2 

derangement  of  the  mind;  and  it  is  impossible  for  such  men  to  have 
such  a  memory  of  events,  of  which  they  may  have  had  a  knowledge,  as 
to  be  able  to  present  them,  fairly  and  faithfully,  to  those  who  are  to 
decide  upon  contested  facts.  A  present  and  existing  intoxication, 
to  a  considerable  degree,  utterly  disqualifies  the  person  so  affected,  to 
narrate  facts  and  events  in  a  way  at  all  to  be  relied  on.  It  would,  we 
think,  be  profaning  the  sanctity  of  an  oath,  to  tender  it  to  a  man  who 
had  no  present  sense  of  the  obligations  it  imposed.  Indeed,  it  would 
be  a  scandal  to  the  administration  of  justice,  to  allow,  for  a  moment, 
the  rights  of  individuals  to  be  jeopardized  by  the  testimony  of  any 
man  laboring  under  the  beastly  sin  of  drunkenness.  The  return  does 
not  state  the  degree  of  intoxication  which  the  justice  considered  suT- 
ficient  to  exclude  the  witness ;  but  we  are  to  presume,  that  it  was  evi- 
dent and  palpable;  and  every  court  must  necessarily  have  the  power 
to  decide,  from  their  own  view  of  the  situation  of  the  witness  offered, 
whether  he  be  intoxicated  to  such  a  degree,  as  that  he  ought  not  to 
be  heard;  nor  can  this  lead  to  any  improper  consequences;  for  if 
the  witness  was  not  so  intoxicated,  the  justice  would  be  responsible  in 
an  action  for  a  false  return.  We  cannot  withhold  our  approbation  of 
the  firmness  which  the  magistrate  has  evinced  on  this  occasion,  in 
refusing  to  administer  an  oath  to  a  witness  thus  circumstanced. 
Judgment  affirmed. 


REG.  v.  HILL. 
(Court  of  Criminal  Appeals,  1851.     5  Cox,  Cr.  Cas.  259.) 

This  prisoner  was  tried  before  me,  assisted  by  my  Brother  Cress- 
well,  at  the  last  February  Sittings  of  the  Central  Criminal  Court,  for 
the  manslaughter  of  Moses  James  Barnes.  He  was  convicted,  but  a 
question  was  reserved  for  the  opinion  of  the  Court  of  Appeal  as  to 
the  propriety  of  having  admitted  a  witness  of  the  name  of  Richard 
Donelly  on  the  part  of  the  prosecution. 

The  deceased  and  the  witness  were  both  lunatic  patients  in  Mr. 
Armstrong's  Asylum,  at  Camberwell,  at  the  time  of  the  supposed 
injury,  and  they  were  at  that  time  placed  in  a  ward  called  the  in- 
firmary. It  appeared  that  a  single  sane  attendant  (the  prisoner)  had 
the  charge  of  this  ward,  in  which  as  many  as  nine  patients  slept,  and 
that  he  was  assisted  by  three  of  the  patients  of  whom  the  witness  Don- 
elly was  one.     *     ♦     * 

Donelly  was  then  called,  and,  before  being  sworn,  was  examined  by 
the  prisoner's  counsel.  He  said  "I  am  fully  aware  I  have  a  spirit, 
and  20,000  of  them;  they  are  not  all  mine.  I  must  inquire.  I  can 
where  I  am.  I  know  which  are  mine.  Those  that  ascend  from  my 
stomach  and  my  head,  and  also  those  in  my  ears.  I  don't  know  how 
many  they  are.  The  flesh  creates  spirits  by  the  palpitation  of  the 
nerves  and  the  rheumatics ;    all  are  now  in  my  body  and  round  my 


Sec.  1)  COMPETENCY  139 

head;  they  speak  to  me  incessantly,  particularly  at  night.  That  spirits 
are  immortal  I  am  taught  by  my  religion  from  my  childhood.  No  mat- 
ter how  faith, goes,  all  live  after  my  death,  those  that  belong  to  me 
and  those  that  do  not.  Satan  hves  after  my  death  and  so  does  the 
living  God." 

After  more  of  this  kind  he  added:  "They  speak  to  me  instantly; 
they  are  speaking  to  me  now;  they  are  not  separate  from  me;  they 
are  round  me  speaking  to  me  now;  but  I  can't  be  a  spirit,  for  I  am 
flesh  and  blood.  They  can  go  in  and  out  through  walls  and  places 
which  I  cannot.  I  go  to  the  grave;  they  Hve  hereafter;  I  do  not, 
unless,  indeed,  I've  a  gift  different  from  my  father  and  mother  that 
I  don't  know.  After  death  my  spirit  will  ascend  to  Heaven  or  remain 
in  Purgatory.  I  can  prove  Purgatory.  I  am  a  Roman  Catholic.  1  at- 
tended Aloorfields,  Chelsea  Chapel,  and  many  other  chapels  round  Lon- 
don. I  believe  Purgatory ;  I  am  taughf  that  in  my  childhood  and  in- 
fancy. I  know  what  it  is  to  take  an  oath.  My  catechism,  taught  me 
from  my  infancy,  tells  me  when  it  is  lawful  to  swear ;  it  is  when  God's 
honour,  our  own  or  our  neighbor's  good  require  it.  When  man  swears 
he  does  it  in  justifying  his  neighbor  on  a  prayer  book  or  obligation. 
My  ability  evades  me  while  I  am  speaking,  for  the  spirit  ascends  to  my 
head.  When  I  swear  I  appeal  to  the  Almighty.  It  is  perjury,  the 
breaking  of  a  lawful  oath  or  taking  an  unlawful  one;  he  that  does  it 
will  go  to  hell  for  all  eternity." 

He  was  then  sworn,  and  gave  a  perfectly  collected  and  rational  ac- 
count of  a  transaction  which  he  reported  himself  to  have  witnessed. 
He  was  in  some  doubt  as  to  the  day  of  the  week  on  which  it  took  place, 
and  on  cross-examination  said,  "These  creatures  insist  upon  it  it  was 
Tuesday  night,  and  I  think  it  was  Monday,"  whereupon  he  was  asked, 
"Is  what  you  have  told  us  what  the  spirits  told  you,  or  what  you  recol- 
lected without  the  spirits?"  and  he  said,  "No;  the  spirits  assist  me  in 
speaking  of  the  date.  I  thought  it  was  Monday,  and  they  told  me  it 
was  Christmas  Eve,  Tuesday;  but  I  was  an  eye-witness,  an  ocular 
witness  to  the  fall  to  the  ground." 

The  question  for  the  opinion  of  the  court  is,  whether  this  witness  was 
competent.  Sentence  has  not  been  passed,  but  is  postponed  until  this 
question  has  been  decided,  and  the  prisoner  remains  in  custody. 

J.  T.  Coleridge. 

April  25,  1851. 

******** 

Lord  Campbell,  C.  J.-*^  I  am  glad  this  case  has  been  reserved,  for 
the  matter  is  of  great  importance,  and  ought  to  be  decided.  However, 
after  a  very  learned  argument,  which  I  have  heard  with  a  great  deal 
of  pleasure,  I  entertain  no  doubt  that  the  rule  is  as  was  laid  down 
by  Parkp,  B.,  in  the  unreported  case  that  has  been  referred  to,  that 
wherever  a  delusion  of  an  insane  character  exists  in  any  person  who 

12  Statement  condensed. 


140  WITNESSES  (Ch.  3 

is  called  as  a  Avitness,  it  is  for  the  judge  to  determine  whether  the  per- 
son so  called  has  a  sufficient  sense  of  religion  in  his  mind,  and  sufti- 
cient  understanding  of  the  nature  of  an  oath,  for  the  jury  to  decide 
\vhat  amount  of  credit  they  will  give  to  his  testimony.  Various  au- 
thorities have  been  referred  to,  which  lay  down  the  law,  that  a  person 
non  compos  mentis  is  not  an  admissible  witness.  But  in  what  sense 
is  the  expression  non  compos  mentis  employed?  If  a  person  be  s'o 
to  such  an  extent  as  not  to  understand  the  nature  of  an  oath,  he  is 
not  admissible.  But  a  person  subject  to  a  considerable  amount  of 
insane  delusion,  may  yet  be  under  the  sanction  of  an  oath,  and  ca- 
pable of  giving  very  material  evidence  upon  the  subject-matter  under 
consideration.  The  just  investigation  of  the  truth  requires  such  a 
course  as  has  been  pointed  out  to  be  pursued,  and  in  the  peculiar  cir- 
cumstances of  this  case,  I  should  have  adopted  the  course  which  was 
taken  at  the  trial.  Nothing  could  be  stronger  than  the  language  of 
the  medical  witnesses  in  this  case,  to  show  that  the  lunatic  might  safe- 
ly be  admitted  as  a  witness.  It  has  been  contended  that  the  evidence 
of  every  monomaniac  must  be  rejected.  But  that  rule  would  be  found 
at  times  very  inconvenient  for  the  innocent  as  well  as  for  the  guilty. 
■  The  proper  test  must  always  be,  does  the  lunatic  understand  what  he 
is  saying,  and  does  he  understand  the  obligation  of  an  oath?  The  lu- 
natic may  be  examined  himself,  that  his  state  of  mind  may  be  discov- 
ered, and  witnesses  may  be  adduced  to  show  in  what  state  of  sanity  or 
insanity  he  actually  is ;  still,  if  he  can  stand  the  test  proposed,  the  jury 
must  determine  all  the  rest.  In  a  lunatic  asylum,  the  patients  are 
often  the  only  witnesses  to  outrages  upon  themselves  and  others,  and 
there  would  be  impunity  for  offences  committed  in  such  places,  if  the 
only  persons  who  can  give  information  were  not  to  be  heard. 

Alderson,  B.     I  quite  agree  that  it  is  for  the  judge  to  say  whether 

/the  person  called  as  a  witness  understands  the  sanction  of  an  oath,  and 

for  the  jury  to  say  whether  they  believe  his  evidence.    Here  the  account 

of  the  lunatic  himself,  and  the  evidence  of  the  medical  witnesses,  show 

that  he  was  properly  received  as  a  witness. 

Coleridge,  J.  This  is  an  important  case.  We  have  been  fur- 
nished, during  the  argument,  with  rules  drawn  from  the  older  author- 
ities against  the  admissibility  of  a  lunatic  witness,  which  are  stated 
without  any  qualification.  It  was  not  necessary  for  the  decision  of 
those  cases  that  the  rule  should  be  qualified,  and  in  former  times  the 
question  of  competency  was  considered  upon  much  narrower  grounds 
than  it  is  at  present.  The  evidence  in  this  case  left  the  matter  thus ; 
there  was  a  disease  upon  the  mind  of  the  witness,  operating  upon  par- 
ticular subjects,  of  which  the  transaction  of  which  he  came  to  speak 
was  not  one.  He  was  perfectly  sane  upon  all  other  things  than  the 
particular  subject  of  his  delusion.  As  far  as  memory  was  concerned, 
he  was  in  the  position  of  ordinary  persons,  and  upon  religious  matters 
he  was  remarkably  well  instructed,  so  as  to  understand  perfectly  the 


Sec.  1)  COMPETENCY  1*1 

nature  and  obligation  of  an  oath.  If  it  had  appeared,  upon  his  evi- 
dence, that  his  impressions  of  external  objects  were  so  tainted  by  his 
delusion  that  they  could  not  be  acted  upon,  that  would  have  been  a 
ground  for  the  jury  to  reject  or  give  little  effect  to  his  evidence.  But 
this  was  a  matter  for  them  to  determine. 

Platt,  B.,  concurred. 

Talfourd,  J.  If  the  proposition,  that  a  person  suffering  under  an 
insane  delusion  cannot  be  a  witness,  were  maintained  to  the  fullest  ex- 
tent, every  man  subject  to  the  most  innocent  unreal  fancy  would  be 
excluded.  Martin  Luther  believed  that  he  had  had  a  personal  conflict 
with  the  devil;  Dr.  Johnson  was  persuaded  that  he  had  heard  his 
mother  speak  to  him  after  death.  In  every  case  the  judge  must  deter- 
mine, according  to  the  circumstances  and  extent  of  the  delusion.  Un- 
less judgment  and  discrimination  be  applied  to  each  particular  case, 
there  may  be  the  most  disastrous  consequences. 

Conviction  affirmed/^ 


'II.  Infamy^* 
CLANCEY'S  CASE.  ^'.  ,  , 

(House  of  Lords,  1G96.     Fortes.  208.)  ^    '  J-vu.^- 

Upon  a  debate  in  the  House  of  Lords  December  15,  1696,  relating 
to  the  bill  for  attainting  Sir  John  Fenwick  of  high  treason,  the  opinion 
of  all  the  Judges  then  present,  viz.  Holt,  Chief  Justice  of  the  King's: 
Bench,  Treby,  Chief  Justice  of  the  Common  Pleas,  Ward,  Chief  Baron 
of  the  Exchequer,  Justice  Turton,  Justice  Powell,  Justice  Samuel  Eyre, 
Baron  Powys,  and  Baron  Blencow,  was  asked  whether  Clancey  (hav- 

13  Same  rule  applied  in  District  of  Columbia  v.  Armes,  107  U.  S.  519,  2 
Sup.  Ct.  840,  27  L.  Ed.  618  (1882);  Coleman  v.  Commonwealth,  25  Grat. 
(Va.)  865,  18  Am.  Rep.  71  (1874) ;  State  v.  Herring,  268  Mo.  514,  188  S.  W. 
169  (1916).  ,      .     ^ 

For  instances  where  the  witness  was  held  to  be  too  lacking  m  understand- 
ing, see  Udv  v.  Stewart,  10  Ontario.  591  (1886);  State  v.  Meyers,  46  Neb. 
152,  64  N.  W.  697,  37  L.  R.  A.  423   (1895). 

Some  courts  incline  to  the  view  that  the  competency  of  a  witness  is  to  be 
determined  by  his  mental  condition  at  the  time  he  is  offered,  and  that  the 
state  of  his  mind  at  the  time  of  the  transaction  which  he  relates  affects  his 
credibility  rather  than  his  competency.     Sarbach  v.  Jones,  20  Kan.  497  (1878). 

For  the  presumption  arising  from  an  adjudication  of  insanity,  see  State 
V.  Herring,  268  Mo.  514,  188  S.  W.  169  (1916). 

14  This  disqualification  has  been  removed  by  statute  in  many  of  the  states, 
e.  g.,  N.  Y.  Code  of  Civil  Procedure,  §  832:  "A  person,  who- has  been  convict- 
ed of  a  crime  or  misdemeanor,  is,  notwithstanding,  a  comi>etcnt  witness  in  a 
civil  or  cTiminal  action  or  special  proceeding  ;•  but  the  conviction  may  be 
proved  for  the  purpose  of  affecting  the  weight  of  his  testimony,  either  by  the 
record  or  bv  his  cross-examination,  upon  which  he  must  answer  any  ques- 
tion relevant  to  that  inquiry ;  and  the  party  cross-examining  him  is  not  con- 
cluded, by  bis  answer  to  such  a  question." 


HI 


142  WITNESSES  (Ch.  2 

ing  been  convicted  of  an  high,  misdemeanor,  of  which  the  record  ^'^  was 
produced)  in  actually  giving  George  Porter  300  guineas,  and  promising 
more,  to  withdraw  himself  into  France,  thereby  to  prevent  his  further 
evidence  against  the  Lord  Aylesbury,  the  Lord  Montgomery  and  Sir 
John  Fenwick,  for  which  he  had  judgment  to  stand  in  the  pillory  (and 
did  so  stand),  might  be  admitted  a  witness,  either 

First,  to  confront  George  Porter  in  his  evidence  before  the  House 
of  Lords. 

Secondly,  or  to  be  admitted  a  witness  in  any  other  case. 

As  to  the  first,  we  were  all  of  opinion  he  could  not,  it  being  utterly 

improper  to  permit  him,  after  his  conviction,  to  come  and  confront 

and  give  evidence  against  the  very  person,  upon  whose  evidence  he 

was  before  convicted  by  verdict,  and  to  purge  himself  of  that  very 

.  crime  of  which  he  was  so  convicted. 

And  as  to  the  second,  we  were  all  of  opinion  (except  Holt,  Chief 
Justice,  who  did  somewhat  hesitate,  yet  said  upon  further  considera- 
tion he  might  also  agree)  that  Clancey  could  never  after  be  admitted  a 
witness  in  any  case ;  for  that  he  was  become  infamous,  not  that  merely 
standing  in  the  pillory  or  -judgment  so  to  stand,  did  of  itself  make  a 
man  infamous  to  such  a  degree  as  never  after  to  be  admitted  a  wit- 
ness (tho'  Co.  Lit.  6  b,  does  seem  to  intimate  as  much) ;  for,  if  a  Judge 
should  sentence  a  man  to  stand  in  the  pillory  for  a  trespass,  a  riot,  a 
libel,  or  seditious  words,  and  he  should  so  stand,  yet  this  would  not 
make  him  infamous,  so  as  never  to  be  admitted  a  witness ;  because  the 
crimes  in  their  own  nature  are  not  perfectly  infamous,  but  rather  ex- 
orbitant in  point  of  rashness  and  misbehaviour :  but  he  that  has  been 
,  /Convicted  of,  or  stood  in  the  pillory  for  perjury  or  forgery,  is  truly 
infamous.  And  so  is  this  Clancey ;  for  his  crime  was  a  base  and 
clandestine  endeavour  to  obstruct  the  publick  justice  of  the  kingdom, 
not  by  discoursing  or  arguing  with  a  witness,  or  endeavouring  to  con- 
vince him  with  reason ;  but  by  downright  bribing  and  corrupting  him 
with  money:  which  no  man  would  attempt  but  a  base,  mean  and  in- 

iR  In  Eex  V.  Inhabitants  of  Castell  Careinion,  8  East,  77  (1806),  the  court 
below  had  rejected  a  witness  on  his  admission  in  court  that  he  had  been 
convicted  of  a  felony. 

Lord  EUenborough,  C.  J.:  "We  must  take  it  upon  this  case  that  the  evi- 
dence was  objected  to  at  the  sessions  by  the  party  interested  in  repelling 
it,  and  there  cannot  be  the  least  doubt  that  the  objection  was  well  founded. 
The  evidence  went  to  affect  the  rights  of  third  persons,  namely,  the  litigant 
parishes;  for  the  pauper  himself  is  no  party  to  the  cause  in  court.  Wheth- 
er or  not  the  witness  were  convicted  of  tl^e  felony  would  appear  by  the  rec- 
ord: and  it  cannot  be  seriously  argued  that  a  record  can  be  proved  by  the 
admission  of  any  witness.  He  may  have  mistaken  what  passed  in  court,  and 
may  have  been  ordered  on  his  knees  for  a  misdemeanor:  This  can  only 
be  known  by  the  record:  and  there  is  no  authority  for  admitting  parol  evi- 
dence of  it." 

Lawrence,  J.:  "The  books  are  uniform  in  requiring  the  production  of  the 
record  to  prove  a  witness  convicted  of  an  oifense.  2  Hawk.  c.  4G,  §  20;  3 
Com.  Dig.  Evidence,  280 ;  5  Com.  Dig.  Testmoigne,  516 ;    Bull.  N.  P.  292." 

And  so  in  Commonwealth  v.  Green,  17  Mass.  515  (1822),  where  the  questiou 
arose  on  a  motion  for  a  new  trial. 


Sec.  1)  COMrETENCY  143 

famous  rascal ;  and  that  to'  prevent  the  discovery  and  punishment  of 
certain  criminals,  who  had  been  conspiring  against  the  publick  safety 
of  the  kingdom,  as  Porter  had  before  upon  his  oath  affirmed.  And 
this  was  a  crime  not  merely  of  misbehaviour,  like  a  riot  or  libel,  but 
even  of  corruption  relating  to  evidence  and  testimony,  and  it  were 
against  reason  to  admit  that  man  as  a  good  witness,  who  has  been 
convicted  of  bribing  and  corrupting  of  a  watness  .as  such.^^ 


PENDOCK  v.  MacKENDER, 

(Court  of  Common  Pleas,  1755.     2  Wils.  IS.) 

This  is  an  ejectment  for  lands  in  Kent;  the  substance  of  the  case 
reserved  at  the  assises  for  the  opinion  of  the  court  is  shortly  this: 
That  J.  M.  being  seised  of  the  lands  in  question,  by  his  will  executed  in 
September,  1750,  devised  the  lands  to  the  defendant;  that  there  were 
three  witnesses  to  the  will,  viz.  Thomas  Turner,  Jos.  Jeffery,  and  an- 
other; that  Jos.  Jeffery,  one  of  the  witnesses  before  the  time  of  at- 
testation thereof,  was  indicted,  tried  and  convicted  for  stealing  a  sheep, 
and  was  found  guilty  to  the  value  of  ten  pence,  and  had  judgment  of 
whipping. 

The  plaintiflf  claims  as  heir  at  law  to  the  testator,  and  therefore  the 
single  question  is,  whether  one  convicted  and  whipped  for  petit  lar- 
ceny be  a  competent  witness,  within  the  statute  of  frauds  and  per- 
juries. 

After  three  arguments  at  the  bar  the  whole  court  w^ere  clearly  of 
opinion  that  Joseph  Jeffery  was  not  a  competent  witness,  and  laid  it 
down  as  a  rule,  that  it  is  the  crime  that  creates  the  infamy,  and  takes 
away  a  man's  competency,  and  not  the  punishment  for  it;  and  it  is 
absurd  and  ridiculous  to  say  it  is  the  punishment  that  creates  the  in-^ 
famy. 

The  pillory  has  always  been  look'd  upon  as  infamous,  and  to  take 
away  a  man's  competency  as  a  witness ;  but  to  put  one  case  (amongst 
many  that  might  be  put)  to  shew  this  is  a  very  absurd  notion,  is  suffi- 
cient :  If  a  man  was  convicted  upon  the  Stat.  4  W.  &  M.  against  deer- 
stealing,  there  is  a  penalty  of  £30.  to  be  levied  by  distress,  and  if  he 
has  no  distress,  he  is  to  be  put  in  the  pillory ;  so  that  if  the  pillory  be 
infamous,  the  person  convicted  (according  to  this  notion)  will  be  so, 
if  he  has  not  £30.  but  if  he  has  £30.  he  will  not  be  infamous. 

In  the  present  case  both  the  crime  and  punishment  are  infamous; 

and  he  that  steals  a  penny  has  as  wickel'  a  mind  as  he  that  steals  a 

.  larger  sum,  if  not  a  more  wicked  mind,  for  he  has  the  less  tempta- 

18  The  aQidavit  of  an  infamous  person  may  be  received,  where  required 
for  his  own  protection,  but  not  to  support  a  charge  by  him.  Res  v.  Davis, 
5  Mod.  74  (1G9G) ;  Wallier  v.  Kearney,  2  Strange,  114S  (1741). 


144  WITNESSES  (Ch.  2 

tion;  petit  larceny  is  felony,  1  Hawk.  95,  §  36.  And  no  case  has 
been  cited  where  a  person  convicted  thereof  was  ever  admitted  to  be 
a  witness.     Judgment  for  the  plaintiff  per  totam  curiam. 


THE  KING  V.  PRIDDLE. 

(Nisi  Prius,  17S7.     Leacli,  Cr.  Cas.  442.) 

William  Priddle,  Robert  Holloway,  and  Stephen  Stephens,  were 
convicted  at  the  Old  Bailey  in  April  Session,  1787,  of  conspiracy; 
and  sentenced  to  pay  a  fine  of  6s.  8d.  each,  and  to  be  imprisoned  in 
his  Majesty's  gaol  of  Newgate,  viz.  William  Priddle  for  the  term  of 
two  years,  and  Robert  PloUoway  and  Stephen  Stephens  for  the  term 
of    eighteen    months. 

During  the  course  of  their  confinement  George  Crossley,  against 
whom  they  had  been  convicted  of  conspiring,  was  indicted  at  Hick's 
Hall  for  wilful  and  corrupt  perjury;  and  the  indictment  being  re- 
moved into  the  Court  of  King's  Bench,  came  on  to  be  tried  before  Mr. 
Justice  Buller,  at  the  sittings  at  Westminster  after  Trinity  Term  1787. 

At  the  trial,  William  Priddle  was  produced  as  a  witness  on  the 
part  of  the  prosecution ;  and  being  examined  on  the  voir  dire,  he 
acknowledged  that  he  had  been  convicted  of  the  conspiracy  above- 
mentioned,  and  was  then  brought  up  under  a  habeas  corpus  from  his 
confinement  for  that  offence. 

The  defendant's  counsel,  objected  to  his  being  examined,  and  sub- 
mitted to  the  Court  that  a  conviction  of  conspiracy  rendered  the  par- 
ty infamous,  and  destroyed  his  competency  as  a  witness. 

Mr.  Justice  BulIvEr.  Conspiracy  is  a  crime  of  a  blacker  dye  than 
barratry,  and  the  testimony  of  a  person  convicted  of  barratry  has  been 
rejected.  It  is  now  settled,  that  it  is  the  infamy  of  the  crime  which 
destroys  the  competency,  and  not  the  nature  or  mode  of  punishment. 
A  conviction  therefore  of  any  oft'ence  which  is  comprehended  under 
the  denomination  of  crimen  falsi,  destroys  the  competency  of  the  per- 
son convicted,  as  perjury,  forgery  by  the  common  law,  &c. 

The  testimony  of  the  witness  was  rejected.^^ 

17  Sir  William  Scott,  in  Ville  de  Varsovie,  2  Dodson,  174  (1817):  "The 
crimen  falsi  lias  nowhere  been  accuratelj'  delined ;  nor  the  species  of  it 
authoritatively  enumerated.  There  are  chasms  in  the  law  that  must  be 
filled  up  by  those  to  whom  the  law  has  more  immediately  confided  a  dis- 
cretionary judgment  upon  such  points.  If  I  find  an  actual  case  in  which  a 
conspiracy  to  cheat  has  been  held  to  carry  witli  it  this  consequence,  it  is 
my  duty  to  apply  it  to  one  that  falls  directly  under  the  same  chiss,  thougli 
not  resembling  it  in  all  circumstances.  But  I  find  no  such  actual  case  (and 
certainly  I  have  not  been  able  to  do  so),  then  looking  to  what  has  been  tlie 
inclination  of  the  courts  in  later  times,  rather  to  narrow  the  ancient  in- 
capacity of  witnesses  than  to  open  the  door  still  wider;  looking  to  the 
variation  which  the  law  seems  to  liave  undergone  in  the  considerution  of 
very  eminent  judges,  at  the  cautious  hesitation  of  opinion  with  which  this 
subject  has  been  treated  by  the  highest  authorities,  I  do  not  find  myself  en- 


Sec.  1)  COMPETENCY  145 

FAUNCE  V.  PEOPLE. 

(Supreme  Court  of  Illinois,  1SG9.     51  111.  311.) 

Mr.  Justice  Walker  ^^  delivered  the  opinion  of  the  Court: 

The  record  shows  that  plaintiff  in  error  was  indicted  jointly  with 
Mrs.  Stephens,  for  receiving  stolen  goods.  There  are  no  questions 
presented  upon  the  pleadings  in  the  case,  but  a  number  of  errors  are 
assigned  on  the  various  rulings  of  the  court.  It  is  first  urged,  that 
the  court  below  erred  in  permitting  Moore,  who  had  been  convicted 
of  stealing  the  goods,  which  the  accused  were  charged  with  concealing,  -^ 

but  who  had  not  been  sentenced,  to  testify  against  plaintiff 'in  error. 
Plaintiff's  attorney  admits,  that  at  the  common  law  there  must  be  a 
verdict  of  guilty  followed  by  a  judgment,  to  render  a  party  incompe-  ; 

tent  to  testify,  but  insists  that  the  rule  has  been  changed  by  our  statute.  -    k 

The  235th  section  of  the  criminal  code,  (Gross'  Stat.  218)  declares,  that)^^^       t7 
each  and  every  person  convicted  of  any  of  the  crimes  therein  enu- '.  "L-ll- 
merated,  of  which  larceny  is  one,  shall  be  deemed  infamous,  and  shall  ^ct 

forever  thereafter  be  rendered  incapable  of  holding  any  office  of  honor,,  c^it 

trust  or  profit,  of  voting  at  any  election,  of  serving  as  a  juror  and  of! 
giving  testimony.^® 

This  presents  the  question,  what  is  a  conviction?  Is  it  the  verdict  of 
guilty,  or  is  it  the  sentence  or  judgment  rendered  on  such  a  verdict? 
So  far  as  our  knowledge  of  the  practice  extends  under  this  section 
since  its  adoption,  the  construction  has  been  uniform,  that  it  is  the  judg- 
ment on  the  verdict  of  guilty  which  renders  the  accused  infamous  and 
disqualifies  him  from  testifying  as  a  witness.  And  such  long  and 
uniform  construction  by  the  courts  and  the  bar,  is  entitled  to  no  small 
weight  in  the  consideration  of  such  a  question.  Had  serious  doubts 
of  the  correctness  of  such  a  construction  existed,  we  must  conclude 
that  the  question  would  long  since  have  been  presented  to  this  court 
for  determination. 

A  reference  to  the  eighth  section,  art.  4,  of  our  constitution,  will 
show  the  construction  the  framcrs  of  that  instrument  placed  on  the 
term  "conviction."  After  conferring  upon  the  governor  the  power  to 
grant  reprieves,  commutations  and  pardons  after  conviction,  for  all 
oft'enses  except  treason  and  cases  of  impeachnient.  it  declar'es  that  "he 
shall,  biennially,  communicate  to  the  general  assembly  each  case  of 
reprieve,  commutation  or  pardon  granted,  stating  the  name  of  the 
convict,  the  crime  for  which  he  was  convicted,  the  sentence  and  its^ 

titled  to  say  that  the  affidavit  of  this  persou  ought  to  be  rejected  in   this 
court,  as  being  clearly  inadmissible  in  all  courts  whatsoever." 
See,  also,  Schuylkill  v.  Copley,  67  Pa.  3S6,  5  Am.  Kep.  441  (1S71). 

18  Tart  of  opinion  omitted. 

19  For  the  present  statute  removing  the  disability,  see  section  426,  c.  3S,  \  »<;;^^     ' 
Hurd's  Rev.  St.  1913.  ' 

IIiNT.Ev.— 10 


146  WITNESSES  (Cb.  2 

date^and  the  date  of  commutation,  pardon  or  reprieve."  This  provi- 
vIsTon  manifestly  contemplates  a  judgment  or  sentence  as  necessary  to 
a  conviction,  or  v^hy  require,  in  each  case  of  conviction  and  reprieve, 
commutation  or  pardon,  to  report  the  sentence  and  its  date?  If  the 
verdict  of  guilty  constituted  the  conviction,  they  w^ould  not  have  re- 
quired in  every  case  the  sentence  and  its  date  to  have  been  communi- 
cated to  the  general  assembly.  They,  no  doubt,  acted  upon  the  uniform 
construction  given  to  the  statute  above  referred  to,  which  was  then 
and  had  long  been  in  force. 

An  examination  of  the  adjudged  cases  in  the  various  states  of  the 
Union,  where  substantially  the  same  laws  are  in  force,  will  show  that 
it  is  not  the  commission  of  the  crime,  nor  the  verdict  of  guilty,  nor  the 
punishment,  nor  the  infamous  nature  of  the  punishment,  but  the  final 
judgment  of  the  court  that  renders  the  culprit  incompetent.  It  is 
true,  that  writers  and  judges  have  loosely  said,  that  a  party  is  convicted 
on  the  finding  of  a  verdict  against  him.  It_is_jtrue^  in  a  sense,  that 
he_has  been  convicted  by  the  jury,  but  not  until  the  judgment  is  ren- 
dered is  he  convicted  by  the  law ;  and  the  statute  only,  like  the  common, 
law,  refers  to  the  conviction  imposed  by  the  law.  We  can  discover 
from  this  section  no  intention  to  change  the  common  law  rule.  And  in 
a  matter  of  such  grave  import  we  should  have  to  see  such  intention 
reasonably  well  expressed  before  we  could  give  the  construction  con- 
tended for  by  plaintiff  in  error.     *     *     * 

Judgment  affirmed.^** 


LOGAN  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1S92.     144  U.  S.  263,  12  Sup.  Ct.  617, 

36  L.  Ed.  429.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
district  of  Texas  to  review  a  conviction  on  a  charge  of  murder. 

Mr.  Justice  Gray.^^  *  *  *  Jj^  support  of  the  objection  to  the  com- 
petency of  the  two  witnesses  who  had  been  previously  convicted  and 
sentenced  for  felony, — the  one  in  North  Carolina,  and  the  other  in 
Texas, — the  plaintiffs  in  error  relied  on  article  730  of  the  Texas  Code 
of  Criminal  Procedure  of  1879,  which  makes  incompetent  to  testify 
in  criminal  cases  "all  persons  who  have  been  or  may  be  convicted  of 
felony  in  this  state,  or  in  any  other  jurisdiction,  unless  such  convic- 

2  0  Lord  Mansfield  in  Lee  v.  Gansel,  1  Cowper,  1  (1774):  "An  affidavit  of 
Lee  was  offered  to  be  read.  Objected,  that  he  stood  convicted  of  peijury,  and 
the  conviction  was  produced.  But,  per  Lord  Mansfield,  a  conviction  upon  a 
charge  of  perjury  is  not  sufficient,  unless  followed  by  a  judgment.  I  know 
of  no  case,  where  a  conviction  alone  has  been  an  objection ;  because,  upon 
a  motion  in  arrest  of  judgment,  it  may  be  quashed." 

So  an  unconvicted  accomplice  is  not  disqualified:  Rex  v.  Teal,  11  East, 
307  (1809; ;  Byrd  v.  Com.,  2  Va.  Cas.  490  (1S2G),  leading  case  in  United  States, 

21  Statement  and  part  of  opinion  omitted. 


Sec.  1)  COMTETENCT  147 

tion  has  been  legally  set  aside,  or  unless  the  convict  has  been  legally 
pardoned  for  the  crime  of  which  he  was  convicted." 

By  an  act  of  the  congress  of  the  republic  of  Texas  of  December 
20,  1836,  §  41,  "the  common  law  of  England,  as  now  practiced  and  un- 
derstood, shall,  in  its  application  to  juries  and  to  evidence,  be  followed 
and  practiced  by  the  courts  of  this  republic,  so  far  as  the  same  may 
not  be  inconsistent  with  this  act,  or  any  other  law  passed  by  this  con- 
gress." 1  Laws  of  Republic  of  Texas,  (Ed.  1838,)  156.  That  act  was 
in  force  at  the  time  of  the  admission  of  Texas  into  the  Union,  in  1845. 
The  first  act  of  the  state  of  Texas  on  the  incompetency  of  witnesses 
by  reason  of  conviction  of  crime  appears  to  have  been  the  statute  of 
February  15,  1858,  c.  151,  by  which  all  persons  convicted  of  felony 
in  Texas  or  elsewhere  were  made  incompetent  to  testify  in  criminal  ac- 
tions, notwithstanding  a  pardon,  unless  their  competency  to  testify  had 
been  specifically  restored.  Gen.  Laws  7th  Leg.  Tex.  242 ;  Oldham  &  W. 
Dig.  640.  That  provision  was  afterwards  put  in  the  shape  in  which  it 
stands  in  tlie  Code  of  1879,  above  cited.    • 

The  question  whether  the  existing  statute  of  the  state  of  Texas  upon 
this  subject  is  applicable  to  criminal  trials  in  the  courts  of  the  United 
States  held  within  the  state  depends  upon  the  construction  and  effect 
of  section  858  -^  of  the  Revised  Statutes  of  the  United  States.    *    *    * 

For  the  reasons  above  stated,  the  provision  of  section  858  of  the 
Revised  Statutes,  that  "the  laws  of  the  state  in  which  the  court  is  held 
shall  be  the  rules  of  decision  as  to  the  competency  of  witnesses  in  the 
courts  of  the  United  States  in  trials  at  common  law  and  in  equity  and 
admiralty,"  has  no  application  to  criminal  trials ;  and,  therefore,  the 
competency  of  witnesses  in  criminal  trials  in  the  courts  of  the  United 
States  held  within  the  state  of  Texas  is  not  governed  by  a  statute  of 
the  state  which  was  first  enacted  in  1858,  but,  except  so  far  as  con- 
gress has  made  specific  provisions  upon  the  subject,  is  governed  by 
the  common  law,^^  which,  as  has  been  seen,  was  the  law  of  Texas  be- 
fore the  passage  of  that  statute,  and  at  the  time  of  the  admission  of 
Texas  into  the  Union  as  a  state. 

At  common  law,  and  on  general  principles  of  jurisprudence,  when 
not  controlled  by  express  statute  giving  effect  within  the  state  which 
enacts  it  to  a  conviction  and  sentence  in  another  state,  such  conviction 
and  sentence  can  have  no  effect,  by  way  of  penalty,  or  of  personal  dis- 
ability or  disqualification,  beyond  the  limits  of  the  state  in  which  the 
judgment  is  rendered.  Wisconsin  v.  Insurance  Co.,  127  U.  S.  265,  8 
Sup.  Ct.  1370,  32  L.  Ed.  239;  Com.  v.  Green,  17  Mass.  515;  Sims  v. 
Sims,  75  N.  Y.  466;  Trust  Co.  v.  Gleason,  77  N.  Y.  400,  ZZ  Am.  Rep. 

22  This  statute  has  been  so  ameuded  as  to  expressly  limit  it  to  civil  cases. 
See  post,  p.  l(jy. 

23  For  the  reasoning  by  which  this  conclusion  was  reached,  see  omitted 
parts  of  the  opinion  and  United  States  v.  Keid,  12  How.  3U1,  13  L.  Ed.  102H 
(1851). 


148  WITNESSES  (Ch.  2 

632 ;  Story,  Confl.  Laws,  §  92 ;  1  Greenl.  Ev.  §  376.  It  follows  that 
the  conviction  of  Martin  in  North  Carolina  did  not  make  him  incom- 
petent to  testify  on  the  trial  of  this  case.^* 

The  competency  of  Spear  to  testify  is  equally  clear.  He  was  con- 
victed and  sentenced  in  Texas;  and  the  full  pardon  of  the  governor 
of  the  state,  although  granted  after  he  had  served  out  his  term  of  im- 
prisonment, thenceforth  took  away  all  disqualifications  as  a  witness, 
and  restored  his  competency  to  testify  to  any  facts  within  his  knowl- 
edge, even  if  they  came  to  his  knowledge  before  his  disqualification 
had  been  removed  by  the  pardon.  Boyd  v.  United  States,  142  U.  S. 
450,  12  Sup.  Ct.  292,  35  L.  Ed.  1077;  United  States  v.  Jones,  (before 
Mr.  Justice  Thompson,)  2  Wheeler,  Crim.  Cas.  451,  461 ;  Hunnicutt  v. 
State,  18  Tex.  App.  498,  51  Am.  Rep.  330;  Thornton  v.  State,  20  Tex. 
App.  519. 

Whether  the  conviction  of  either  witness  was  admissible  to  affect 
his  credibility  is  not  before,  us,  because  the  ruling  on  that  question 
was  in  favor  of  the  plaintiffs  in  error.     *     *     * 

Judgment  reversed  (on  other  grounds). 


ROSEN  et  al.  v.  UNITED  STATES. 

PAKAS  v.  SAME. 

(Supreme  Court  of  the  United  States,  1918.     245  U.  S.  467,  38  Sup.  Ct.  148, 
^^^'^'^     i)  62  L.  Ed.  406.) 

Mr.  Justice  Clarke  ^^  delivered  the  opinion  of  the  Court. 

These  two  cases  present  precisely  the  same  questions  for  decision. 
They  were  argued  and  will  be  decided  together. 

In  No.  365  Rosen  and  Wagner  were  indicted  in  the  District  Court 
of  the  United  States  for  the  Eastern  District  of  New  York  with  one 
U  ^  crt''<f  ^T^odev  for  conspiring  to  buy  and  receive  certain  checks  and  letters 
which  had  been  stolen  from  "duly  authorized  depositories  of  United 
States  mail  matter,"  and  which  were  known  to  the  accused  to  have 
been  so  stolen.  Broder  pleaded  guilty,  and  when  he  was  afterwards 
called  as  a  witness  for  the  government  the  objection  was  made  that  he 
was  not  competent  to  testify  for  the  reason  that,  as  was  admitted  by 
the  government,  he  had  theretofore  pleaded  guilty  to  the  crime  of 
forgery  in  the  second  degree,  in  the  Court  of  General  Sessions,  in  the 
county  and  state  of  New  York,  had  been  sentenced  to  imprisonment, 
and  had  served  his  sentence.  The  objection  was  overruled  and  Broder 
was  permitted  to  testify.     This  ruling  was  assigned  as  error  in  the 

,       21  That  the  conviction  of  a  person  by  a  federal  court  sitting  in  the  same 
\  state  does  n^t  disqualify  him  as  a  witness  in  the  state  court,  see  Samuels 
\  V.  Com.,  110  Va.  901,  66  S.  E.  222,  19  Ann.  Cas.  380  (1909). 
'      2  5  Part  of  opinion  omitted. 


Sec.  1)  COMPETENCY  140 

Circuit  Court  of  Appeals,  where  it  was  affirmed,  and  it  is  now  as- 
signed as  error  in  this  court.     *     *    * 

For  the  vaHdity  of  the  claim  that  Broder  was  disqualified  as  a  wit- 
ness by  his  sentence  for  the  crime  of  forgery,  the  plaintiffs  in  error 
rely  upon  United  States  v.  Reid  et  al,  12  How.  361,  13  L.  Ed.  1023, 
decided  in  1851.  In  that  case  it  was  held  that  the  competency  of  wit- 
nesses in  criminal  trials  in  United  States  courts  must  be  determined 
by  the  rules  of  evidence  which  were  in  force  in  the  respective  states 
when  the  Judiciary  Act  of  1789  was  passed,  and  the  argument  in  this 
case  is,  that  by  the  common  law  as  it  was  administered  in  New  York 
in  1789  a  person  found  guilty  of  forgery  and  sentenced,  was  thereby 
rendered  incompetent  as  a  witness  until  pardoned,  and  that,  there- 
fore, the  objection  to  Broder  should  have  been  sustained. 

While  the  decision  in  United  States  v.  Reid,  supra,  has  not  been 
specifically  overruled,  its  authority  must  be  regarded  as  seriously  shak- 
en by  the  decisions  in  Logan  v.  United  States,  144  U.  S.  263-301,  12 
Sup.  Ct.  617,  36  L.  Ed.  429,  and  in  Benson  v.  United  States,  146  U. 
S.  325,  13  Sup.  Ct.  60,  36  L.  Ed.  991. 

The  Benson  Case  differed  from  the  Reid  Case  only  in  that  in  the 
former  the  witness  whose  competency  was  objected  to  was  called  by 
the  government  w^hile  in  the  latter  he  was  called  by  the  defendant. 
The  testimony  of  the  witness  w^as  admitted  in  the  one  case  but  it  was 
rejected  in  the  other,  and  both  judgments  were  affirmed  by  this  court 
— however  forty  years  had  intervened  between  the  two  trials.  In  the 
Benson  Case,  decided  in  1891,  this  court,  after  determining  that  the 
Reid  Case  was  not  decisive  of  it,  proceeded  to  examine  the  question 
then  before  it  "in  the  light  of  general  authority  and  of  sound  reason," 
and  after  pointing  out  the  great  change  in  the  preceding  fifty  years 
in  the  disposition  of  courts  to  hear  witnesses  rather  than  to  exclude 
them,  a  change  "which  was  wrought  partially  by  legislation  and  par- 
tially by  judicial  construction,"  and  how  "the  merely  technical  bar- 
riers which  excluded  witnesses  from  the  stand  had  been  removed," 
proceeded  to  dispose  of  the  case  quite  without  reference  to  the  com- 
mon-law practice,  which  it  was  claimed  should  rule  it. 

Accepting  as  we  do  the  authority  of  the  later,  the  Benson  Case, 
rather  than  that  of  the  earlier  decision,  we  shall  dispose  of  the  first 
question  in  this  case,  "in  the  light  of  general  authority  and  of  sound 
reason." 

In  the  almost  twenty  years  which  have  elapsed  since  the  decision 
of  the  Benson  Case,  the  disposition  of  courts  and  of  legislative  bodies 
to  remove  disabilities  from  witnesses  has  continued,  as  that  decision 
shows  it  had  been  going  forward  before,  under  dominance  of  the  con-^ 
viction  of  our  time  that  the  truth  is  more  likely  to  be  arrived  at  by 
hearing  the  testimony  of  all  persons  of  competent  understanding  who 
may  seem  to  have  knowledge  of  the  facts  involved  in  a  case,  leaving 
the  credit  and  weight  of  such  testimony  to  be  determined  by  the  jury 
or  by  the  courts  rather  than  by  rejecting  witnesses  as  incompetent,  wiih 


150  WITNESSES  (Ch.  1 

the  result  that  this  principle  has  come  to  be  widely,  almost  universallyj 
accepted  in  this  country  and  in  Great  Britain. 

Since  the  decision  in  the  Benson  Case  we  have  significant  evidence 
of  the  trend  of  congressional  opinion  upon  this  subject  in  the  removal 
of  the  disability  of  witnesses  convicted  of  perjury,  R.  S.  5392  (Comp. 
St.  1916,  §  10295),  by  the  enactment  of  the  federal  Criminal  Code  in 
1909  with  this  provision  omitted  and  section  5392  repealed.  This  is 
significant,  because  the  disability  to  testify,  of  persons  convicted  of 
perjury,  survived  in  some  jurisdictions  much  longer  than  many  of  the 
other  common-law  disabilities,  for  the  reason  that  the  offense  concerns 
directly  the  giving  of  testimony  in  a  court  of  justice,  and  conviction 
of  it  was  accepted  as  showing  a  greater  disregard  for  the  truth  than 
it  was  thought  should  be  implied  from  a  conviction  of  other  crime. 

Satisfied  as  we  are  that  the  legislation  and  the  very  great  weight 
of  judicial  authority  which  have  developed  in  support  of  this  modern 
rule,  especially  as  applied  to  the  competency  of  witnesses  convicted  of 
crime,  proceed  upon  sound  principle,  we  conclude  that  the  dead  hand 
of  the  common-law  rule  of  1789  should  no  longer  be  applied  to  such 
cases  as  we  have  here,  and  that  the  ruling  of  the  lower  courts  on  this 
I  first  claim  of  error  should  be  approved.    *    *    * 

Affirmed. 

Mr.  Justice  Van  Devanter  and  Mr.  Justice  McReynolds  dissent 
from  so  much  of  the  opinion  as  departs  from  the  rule  settled  in  United 
States  V.  Reid  and  Logan  v.  United  States,  which  they  think  is  in  no 
way  modified  by  what  actually  was  decided  in  Benson  v.  United  States. 


III.  Interest 

(A)  At  Common  Law 

THE  QUEEN  v.  MUSCOT. 

(Court  of  Queen's  Bench,  1714.     10  Mod.  192.) 

A  question  was  started  in  an  indictment  for  a  judicial  perjury, 
whether  one  produced  as  an  evidence  for  the  Queen  might  not  be 
examined  upon  a  voir  dire,  as  the  common  usage  is  in  civil  actions? 

It  was  insisted,  by  the  counsel  for  the  Queen,  that  the  question 
should  not  be  put,  because  the  consequence  would  be,  that  no  such 
prosecutions  could  ever  go  on;  for  there  is  scarcely  any  prosecutor 
but  if  asked  whether  he  be  interested  in  the  event  of  a  cause,  must 
say  he  is.  For  example :  Where  the -owner  prosecutes  an  indictment  of 
felony  for  stolen  goods  he  is  concerned  in  interest,  for  he  will  be  in- 
titled  to  restitution,  and  yet  his  evidence  is  admitted.  So  likewise, 
where  an  indictment  is  removed  by  certiorari  from  the  sessions  into 
the  Court  of  King's  Bench,  notwithstanding  the  prosecutor  in  that 
case,  if  the  defendant  be  convicted,  is,  by  the  statute  of  5  and  6  Will. 


Sec.  1)  COMPETENCY  151 

&  Mary,  c.  11,  intitled  to  his  costs,  yet  he  is  allowed  as  a  witness. 
So  likewise  there  are  several  cases  where,  though  a  man  will,  in  case 
of  conviction,  be  intitled  to  forty  pounds,  yet  his  evidence  shall  be 
received.  And  as  to  the  cases  of  The  Queen  v.  Duke  of  Leeds,  and 
The  Queen  v.  Cobham,  where  the  informer  was  refused  to  be  an  evi- 
dence, there  is  this  difference  between  those  and  the  present  case,  that 
there  it  appeared  upon  the  face  of  the  record  that  the  parties  produced 
as  witnesses  were  interested.  In  hue  and  cry,  the  evidence  of  the 
person  robbed  is  always  allowed  as  evidence. 

Parker,  Chief  Justice.-®  It  is  a  principle  of  the  common  law,  that 
every  man  shall  be  tried  by  a  fair  jury,  and  that  evidence  shall  be  given 
by  persons  disinterested.  The  law  gives  the  party  tried  his  election 
to  prove  a  person  offered  as  evidence  interested  two  ways,  viz.  either 
by  bringing  other  evidence  to  prove  it,  or  else  by  swearing  the  person 
himself  upon  a  voir  dire ;  but  though  he  may  do  either,  he  cannot 
have  recourse  to  both.  It  was  never  objected  before,  that  a  person 
should  not  be  sworn  upon  a  voir  dire ;  nor  will  it,  I  hope,  ever  here- 
after. Objections  have  indeed  been  started  as  to  the  nature  of  those 
questions,  that  shall  be  put  to  a  witness  upon  taking  such  an  oath.  As 
to  the  case  of  robbery,  that  is  founded  upon  the  necessity  of  it,  and 
that  only.  As  to  the  cases  put  upon  the  statutes  where  forty  pounds 
reward,  &c.  they  admit  of  this  answer,  that  the  intention  of  those  Acts 
will  be  quite  defeated,  if  the  reward  were  to  take  off  their  evidence. 
The  same  answer  likewise  may  serve  to  the  cases  put  upon  an  indict- 
ment of  felony  for  stolen  goods,  and  where  the  indictment  is  removed 
by  certiorari,  &c. ;  for  who,  in  the  first  case,  but  the  owner  can  prove 
the  property  of  the  goods?  and  in  the  second,  if  the  giving  of  costs 
should  take  oft'  the  evidence  of  the  prosecutor,  that  Act  of  Parliament, 
which  was  designed  to  discountenance  the  removing  of  suits  by  certio- 
rari, would  give  the  greatest  encouragement  to  them  that  is  possible. 
As  for  the  distinction  taken  between  the  interest  of  the  witness  ap- 
pearing upon  record,  and  its  appearing  some  other  way,  it  is  an 
irrational  distinction,  and  a  reflection,  upon  the  wisdom  of  the  law. 
As  to  the  objection  taken  from  the  inconvenience  of  putting  the  gen- 
eral and  common  question,  because  probably  he  must  answer  it  in 
the  affirmative,  there  is  nothing  in  it,  for  he  may  be  asked  to  ex- 
plain the  nature  of  his  interest,  that  so  the  Court  may  be  judge, 
whether  his  interest  is  such  as  ought  to  exclude  his  evidence.'^ 

He  was  accordingly  sworn  upon  a  voir  dire.     *     *     * 

26  Part  of  opinion  omitted. 

2  7  That  the  person  injured  by  the  perjury  is  a  competent  witness  for  the 
prosecution,  see  Rex  v.  Boston,  4  East,  572  (1S04).  A  contrary  rule  ap- 
pears to  have  obtained  in  the  forgery  cases.  Watt's  Case,  Hardres,  331 
(16G4),  and  dicta  in  ICex  v.  Boston.  For  an  extended  discussion  of  the  com- 
petency of  tlie  informer,  or  of  tlie  person  injured,  in  criminal  prosecutions, 
see  Rex  v.  Williams,  9  B.  &  C.  549  (IS^O) ;  United  Slates  v.  Murphy,  10  Pet. 
203,  10  L.  Ed.  937  (1842),  under  a  statute  giving  a  part  of  thc^  fine  to  the 
injured  person. 


152  WITNESSES  (Ch.  2 

PEOPLE  V.  BILIv. 
(Supreme  Court  of  New  York,  1813.     10  Johns.  95.) 

This  was  an  indictment  for  an  assault  and  .battery,  tried  at  the  Del- 
aware sessions  in  January,  1812,  on  which  the  defendant  was  found 
guilty. 

By  consent,  the  judgment  of  the  court  of  sessions  was  suspended, 
in  order  to  take  the  opinion  of  this  court,  on  a  question  of  law,  arising 
upon  the  trial ;   and  the  following  case  was  submitted  to  the  court : 

The  defendant  was  indicted  jointly  with  another  person,  for  an  as- 
sault and  battery  upon  J.  P.  The  defendants  each  pleaded  not  guilty. 
This  defendant  elected  to  be  tried  separately,  and  his  trial  came 
on  first.  The  prosecutor,  and  the  two  defendants,  were  the  only 
persons  present  at  the  time  of  the  aifray.  After  the  testimony  for 
the  people  had  been  produced,  the  defendant  offered  to  prove  his  de- 
fense by  tlae  other  person  named  in  the  indictment.  The  district  attor- 
ney objected  to  the  witness,  on  the  ground  that  he  was  named 
jointly  in  the  indictment,  and  for  the  same  cause;  and  the  witness  was 
excluded. 

Per  Curiam.  It  appears  to  be  a  technical  rule  of  evidence,  and  one 
well  settled,  that  a  party  in  the  same  suit  or  indictment,  cannot  be  a 
witness  for  his  co-defendant,  until  he  has  been  first  acquitted,  or,  at 
least,  convicted.  Whether  the  defendants  be  tried  jointly,  or  sep- 
arately, does  not  vary  the  rule.  It  is  his  being  a  party  to  the  record 
that  renders  him  incompetent,  an4  the  practice  is,  when  nothing  ap- 
pears against  one  of  the  defendants,  for  the  court  to  direct  his  im- 
mediate acquittal,  so  that  the  other  defendant  may  use  him  as  a  wit- 
ness. 1  Hale's  P.  C.  306;  Peake's  Ev.  100,  note;  6  Term  Rep.  623. 
In  the  case  of  Rex  v.  Fletcher,  Stra.  633,  where  two  were  indicted  for 
an  assault,  and  one  submitted,  and  was  fined,  and  paid  it,  the  chief 
justice  allowed  him  to  be  a  witness,  "the  matter  then  being  at  an  end, 
as  to  him."  But  in  the  late  case  of  Rex  v.  Laf  one  and  others,  5  Esp. 
N.  P.  155,  Lord  Ellenborough  would  not  allow  a  co-defendant,  on  a 
joint  indictment  for  a  misdemeanor,  to  be  a  witness  for  the  other, 
though  he  had  let  judgment  go  by  default,  for  he  said  that  one  defend- 
ant, in  that  case,  might  always  protect  the  other,  and  he  had  never 
known  that  evidence  offered. 

The  witness  in  the  present  case  was,  therefore,  legally  excluded.^' 

2  8  Accord:  Com.  v.  Mar.sh,  10  Pick.  (Mass.)  57  (1830);  United  States  v. 
Ueid,  12  How.  361,  13  L.  Ed.  1023  (1851). 


Sec.  r  COMPETENCY  153 

REGINA  V.  WINSOR. 
(Court  of  Queen's  Bench,  1S65.     10  Cox,  Or.  Cas.  276.) 

The  prisoner,  Charlotte  Winsor,  was  jointly  indicted  with  Mary 
Harris  for  murder.  They  were  tried  jointly,  but  the  jury  disagreed. 
The  prisoner  was  then  tried  separately  and  convicted,  largely  on  the 
testimony  of  Mary  Harris,  against  whom  the  indictment  was  still 
pending.'" 

CocKBURN,  C.  J.  *  *  *  "On  the  second  [trial]  it  was  proposed, 
on  the  part  of  the  prosecution,  to  sever  the  trial  with  the  view  to  the 
one  prisoner  becoming  a  witness  against  the  other.  No  doubt  that 
state  of  things  which  the  resolution  of  the  judges,  as  reported  in  Lord 
Holt's  time,  was  intended  to  prevent,  did  place  the  prisoner  under  this 
disadvantage,  that  whereas,  upon  the  first  trial,  most  important  evi- 
dence could  not  be  given  against  her,  it  was  given  against  her  upon 
the  second  trial,  so  that  the  discharge  of  the  jury  produced  to  her  that 
prejudice.  I  equally  felt  the  force  of  what  Mr.  Folkard  said  about 
the  fellow  prisoner  coming  forward  to  give  evidence  without  having 
been  first  acquitted,  or  convicted  and  sentence  passed.  I  think  that  was 
much  to  be  lamented.  In  all  such  cases,  if  it  be  thought  necessary, 
where  two  persons  are  in  the  same  indictment,  and  it  is  thought  desira- 
ble to  separate  thtm  in  their  trials,  in  order  that  the  evidence  of  the  one 
may  be  taken  against  the  other,  I  think,  in  order  to  ensure  the  greatest 
possible  amount  of  truthfulness  on  the  part  of  the  person  who  is  com- 
ing to  give  evidence  under  such  remarkable  circumstances,  it  would 
be  far  better  that  a  verdict  of  not  guilty  should  be  taken  first,  or  if 
the  plea  of  not  guilty  is  withdrawn  and  a  plea  of  guilty  taken,  sentence 
should  be  passed,  in  order  that  the  person  coming  forward  to  give 
evidence  may  do  so  with  the  mind  free  of  all  the  corrupt  influence 
which  the  fear  of  impending  punishment  and  the  desire  to  obtain  im- 
munity at  the  expense  of  the  prisoner  might  otherwise  be  liable  to  pro- 
duce in  the  mind  of  the  witness.  We  are  not  dealing  with  that  ques- 
tion now.  It  cannot  be  brought  before  us  in  a  Court  of  Error.  Evi- 
dence is  not  set  forth  upon  the  record;  it  can  only  in  a  civil  case  be 
taken  advantage  of  on  a  bill  of  exceptions.  It  does  not  otherwise  come 
upon  the  record  so  as  to  constitute  a  matter  before  us  in  error  here. 
It  does  not  appear  on  the  record  at  all,  therefore  we  cannot  take  it 
into  consideration.  Whether  these  circumstances  should  have  any 
influence  elsewhere  is  a  matter  that  it  is  not  for  us  to  refer  to,  or  in 

2  9  Statement  condensed  and  parts  of  the  opinion  omitted. 


154  WITNESSES  (Ch.  2 

any  way  to  pronounce  an  opinion  upon.  The  only  course  that  is  open 
to  us  is  to  pronounce  judgment  for  the  Crown  and  in  favour  of  the 
validity  of  this  conviction. 

Judgment  for  the  Crown. 

February  8,  1866. 

In  this  case  the  counsel  for  the  prisoner  presented  a  petition  to  the 
Home  Secretary,  setting  forth  that  the  other  prisoner  Harris  was  ad- 
mitted as  a  witness  without  any  verdict  being  taken  either  for  or 
against  her,  and  that  the  learned  judge  at  the  trial  had  refused  to 
reserve  the  point  for  the  Court  of  Criminal  Appeal.  The  Home  Sec- 
retary upon  this  submitted  the  point  as  to  the  evidence  of  Harris  to 
the  fifteen  judges  for  their  opinion.  They  met,  and  the  subjoined  is 
an  extract  of  their  opinion.  The  point  was  not  argued  before  the 
judges,  but  their  opinion  was  given  merely  to  inform  the  conscience 
of  the  Home  Secretary,  who  inclosed  the  extract,  and  expressed  his 
regret  that  he  could  not,  under  tlie  circumstances,  consistently  with 
his  public  duty,  recommend  the  convict  to  the  mercy  of  the  Crown: 

"We  think  that  the  evidence  of  the  witness  Harris  was  legally  ad- 
missible, although  she  was  jointly  indicted  with  the  convict,  and  had 
not  been  previously  convicted  or  acquitted.  With  reference  to  this  par- 
ticular case,  we,  in  common  with  the  learned  judge  who  tried  the  case, 
and  by  whom  all  the  circumstances  have  been  brought  before  us,  are 
of  opinion  that  no  injustice  or  irregularity  occurred  of  which  the  con- 
vict can  properly  complain."  so     *     *     * 


AIcKENZIE  V.  STATE. 
(Supreme  Court  of  Arkansas,  1867.     24  Ark.  636.) 

CoMPTON,  J.^^  The  appellant  was  convicted  in  the  circuit  court  of 
Randolph  county  of  murder  in  the  first  degree,  and  was  sentenced  to 
be  hanged.  The  motion  of  the  appellant  for  a  new  trial  was  over- 
ruled, and  he  appealed  to  this  court. 

The  record  presents  several  questions  for  our  consideration,  which 
we  will  proceed  to  determine  in  the  order  in  which  they  have  been 
argued  in  this  court. 

1.  The  bill  of  exceptions  shows  that  the  accused  ofifered  to  introduce 
Jahu  Bremage  as  a  witness  in  his  behalf,  which  the  court  refused 
to  permit  upon  the  ground  that  he  was  the  identical  person  who,  by 
the  name  of  John  Bremage,  was  jointly  indicted  with  the  accused, 
'and  as  to  whom  a  nolle  prosequi  was  entered  and  against  whom  a  sep- 

80  Accord:  Benson  v.  United  States,  146  U.  S.  325,  13  Sup.  Ct.  60,  36  L. 
Ed.  991  (1892).  A  co-indictee  is  competent  for  tlie  prosecution  after  the  case 
is  disposed  of  as  to  him  by  a  plea  of  guilty.  Com.  v.  Smith,  12  Mete.  (Mass.y 
238  (1847). 

81  Statement  and  part  of  opinion  omitted. 


Sec.  1)  COMPETENCY  155 

arate  indictment,  for  the  same  offence,  was  subsequently  preferred, 
which  then  remained  undetermined.  This  was  error.  It  is  true  that 
it  was  decided  by  this  court,  in  Moss  v.  State,  17  Ark.  327,  65  Am. 
Dec.  453,  and  again,  at  the  present  term,  in  Brown  v.  State,  24  Ark. 
620,  that  one  of  several  defendants  in  an  indictment,  stiU  pending 
against  him  for  the  same  offence,  is  not  a  competent  witness  for  his 
co-defendants,  but  such  is  not  the  question  here  presented.  Bremage, 
as  we  have  seen,  had  been  discharged  from  the  joint  indictment,  was 
no  longer  a  party  to  the  record  in  that  case,  and.  the  fact  that  he  stood 
indicted  separately  for  the  same  offence,  did  not  disqualify  him  as  a 
witness  for  the  accused.  Whar.  Crim.  Law,  p.  303;  United  States 
V.  Henry,  4  Wash.  C.  C.  428,  Fed.  Cas.  No.  15,351;  1  Hale,  p.  305, 
(in  Marg. ;)    1  Chit.  Crim.  Law,  p.  603,  (in  Marg.) 

2.  The  bill  of  exceptions  also  shows  that  the  accused  offered  to 
introduce  James  C.  Winters  as  a  witness,  which  the  court  refused  to 
permit,  because  it  was  made  to  appear  that  he  was  an  accomplice.  In 
this  the  court  also  erred.  This  witness  was  not  indicted  at  all,  and 
his  being  an  accomplice  did  not  make  him  incompetent.  Brown  v. 
State,  decided  at  the  present  term.     See  also  authorities  cited.    *    *    * 

Reversed. 


HOPKINS  V.  NEAL  et  al. 
OSlsi  Prius,  1736.     2  Strange,  1026.) 

The  plaintiff  sued  as  an  infant  by  her  father  the  prochein  amy,  for 
an  assault  and  battery :  and  the  father  was  refused  to  be  a  witness  by 
Lord  Hardwicke  at  Nisi  prius  in  Middlesex,  he  being  liable  to  the 
costs. 


V.  FITZGERALD. 


(Court  of  Chancery,  1742.     9  Mod.  330.) 

An  action  was  brought  upon  a  policy  of  insurance  by  the  trustee, 
the  trust  being  declared  upon  the  policy  itself ;  and  it  was  now  moved, 
that  the  trustee,  though  a  plaintiff  in  the  action,  might  be  received  as 
a  witness  upon  the  trial  at  law. 

Hardwicke,  Lord  Chancellor.  Where  policies  of  insurance  have  I 
been  made  to  A.  to  the  use  of  B.  the  legal  interest  being  judged  to 
be  in  B.^  A.  the  trustee  has  been  admitted  to  be  a  witness ;  but 
where  the  trustee  has  the  legal  estate,  and  the  action  has  been  brought 
in  his  name,  he  can  never,  to  be  sure,  be  admitted  as  a  witness  upon) 
any  of  the  principles  of  law.  A  defendant  in  this  Court,  no  doubt, 
can  apply  in  this  Court  to  have  the  plaintiff's  trustees  examined  in  the 
cause;   but  I  am  afraid  it  is  not  so  where  the  plaintiff  comes  to  have 


15G  WITNESSES  (Ch.  2 

himself  examined,  though  he  is  a  tnistee.^^  This  should  have  been 
mentioned  at  the  hearing  of  the  cause;  and  then  if  I  had  been  told 
that  you  must  bring  actions  upon  the  policy,  and  should  have  occasion 
to  examine  the  trustees,  I  would  have  directed  an  issue,  and  have 
given  liberty  to  have  the  trustees  admitted  as  witnesses ;  but  I  can- 
not do  this  upon  motion,  when  the  cause  is  out  of  Court. 

It  was  then  moved,  that  the  depositions  of  several  witnesses  ex- 
amined in  this  cause,  and  now  abroad,  might  be  received  as  evidence 
at  law.  And  his  Lordship  said,  it  was  now  the  constant  practice  in 
the  Courts  of  Law  to  admit  such  depositions  in  evidence,  where  the 
witnesses  were  abroad. 


NORDEN  et  al.  v.  WILLIAMSON. 
(Court  of  Common  Pleas,  1808.     1  Taunt.  378.) 

The  declaration  in  this  case  was  for  work  and  labour  done,  and  ma- 
terials furnished  by  the  plaintiffs,  who  were  partners  in  trade.  At 
the  trial  of  this  cause,  at  the  Westminster  Sittings  after  the  last  term, 
before  Mansfield,  C.  J.,  evidence  was  given  that  the  defendant  had 
issued  orders  to  the  plaintiffs  to  execute  the  work.  To  rebut  this 
evidence,  the  defendant  called,  among  other  witnesses,  the  plaintiff 
Twibill,  who  proved  that  the  orders  for  the  work  were  received  by 
himself,  and  were  not  given  by  the  defendant.  And  upon  this  evi- 
dence the  jury  found  a  verdict  for  the  defendant. 

Cockell,  Serjt.,  on  this  day  moved  for  a  new  trial,  upon  the  ground 
that  Twibill's  testimony  was  inadmissible.  There  is  no  case  in  the 
books  where  a  plaintiff  is  permitted  to  take  an  oath  as  witness,  ex- 
cept that  of  an  action  against  the  hundred,  where  it  is  done  under 
the  especial  directions  of  an  act  of  Parliament.  When  a  plaintiff" 
enters  the  witness  box,  it  cannot  be  known  to  what  effect  he  will  give 
his  testimony. 

Mansfiuld,  C.  J.  This  is  a  new  case.  I  never  before  remember 
a  plaintiff  to  have  been  called  as  a  witness,  and  perhaps  the  same 
tiling  may  rarely  occur  again.  Since  the  decision  in  Lord  Melville's 
case  it  is  no  longer  law  that  a  man  cannot  be  compelled  to  answer 
against  his  civil  interests,  but  supposing  that  decision  will  not  extend 
to  compel  a  plaintiff  to  answer  in  his  own  cause,  at  least,  I  know  no 
reason  why,  if  the  defendant  is  willing  to  admit  him,  and  the  plaintiff 
is  willing  to  give  evidence  against  himself,  he  should  not  be  suffered 
to  do  so.  If  his  evidence  proves  adverse,  the  consequence  must  fall 
on  the  defendant,  who  ventures  to  call  him.     If  the  plaintiff  had  made 

32  In  Bauerman  v.  Radenius,  7  Term  Rep.  G63  (1798),  it  is  assumed  as  a 
matter  of  course  that  a  nominal  plaintiff  was  inconijjetent.  But  see  Heath 
V.  Hall,  4  Taunt.  326  (1812),  suggesting  the  competency  of  the  assignor  of 
a  chode  in  action. 


Sec.  1)  coMPETENcy  157 

a  declaration  out  of  court  that  he  had  never  been  employed  by  the 
defendant,  evidence  of  that  declaration  would  be  admissible.  How 
is  the  proof  less  credible,  if  the  plaintiff  comes  into  court  and  declares 
the  same  thing  upon  his  oath? 

Chambre,  J.  The  defendant  may  waive  the  objection  to  the  plain- 
tiff's testimony,  if  he  will.'' 

Rule  refused. 


BLACKETT  v.  WEIR. 

(Court  of  King's  Bench,  1826.     5  Barn.  &  C.  3S5.) 

Assumpsit  for  goods  sold  and  delivered.  Plea,  the  general  issue. 
At  the  trial  before  Bayley,  J.,  at  the  Northumberland  Summer  assizes, 
r825,  it  appeared  that  the  action  was  commenced  to  recover  the  price 
of  a  cargo  of  coals  sold  and  delivered  to  a  steam  yacht  company. 
In  order  to  prove  that  the  defendant  had  a  share  in  the  concern,  one 
Gilson  was  called,  who  admitted  on  the  voir  dire  that  he  also  was  a 
partner,  and  it  was  thereupon  objected  for  the  defendant  that  the 
witness  was  incompetent.  The  learned  Judge  overruled  the  objec- 
tion, and  the  plaintiff  obtained  a  verdict;  the  defendant  having  leave  to 
move  to  enter  a  nonsuit.  In  Michaelmas  term,  a  rule  nisi  for  that 
purpose  was  obtained  by  F.  Pollock,  who  cited  Bland  v.  Ansley,  2  N. 
R.  331;  Brown  v.  Brown,  4  Taunt.  752;  Mant  v.  Mainwaring,  8 
Taunt.  139. 

Abbott,  C.  J.  I  am  of  opinion  that  the  evidence  of  Gilson,  was 
properly  received.  On  the  motion  for  this  rule  cases  were  cited  which 
show  that  one  joint  contractor,  having  suffered  judgment  by  default, 
cannot  be  called  as  a  witness.  To  that  position  I  accede ;  it  is  founded 
upon  the  rule  that  a  party  to  the  record  cannot  in  general  be  ex- 
amined. It  is  said  that  the  witness  had  an  interest ;  he  had  so ;  but  it 
was  his  interest  to  defeat  the  plaintiff,  for  in  the  event  of  his  recovery, 
the  defendant  would  be  entitled  to  contribution  from  the  witness.  In 
actions  of  trespass,  witnesses  apparently  open  to  a  much  stronger  ob- 
jection are  constantly  admitted.  In  that  action  a  recovery  against 
one  of  several  co-trespassers  is  a  bar  to  an  action  against  the  others ; 
and  yet  scarcely  a  circuit  passes  without  an  instance  of  a  person  who 
has  committed  a  trespass  being  called  to  prove  that  he  did  it  by  the 

33  And  so  In  Worrall  v.  Jones,  7  Bingham,  395  (1831),  where  one  of  the  de- 
fendants who  had  suffered  a  default  was  examined  on  behalf  of  the  plain- 
tiff. But  a  defendant  may  have  such  an  interest  as  will  disqualify  him  for 
the  plaintiff,  as  in  Brown  v.  Brown,  4  Taunt.  752  (1813),  where  it  was  to  the 
interest  of  one  defendant  to  make  the  other  liable;  or  he  may  be  disqualified 
to  testify  for  either  plaintiff  or  a  codefendant,  as  in  Mant  v.  iNIainwaring, 
8  Taunt.  139  (1818),  where  if  called  by  the  plaintiff  it  miiiht  have  been  tc 
his  interest  to  make  his  codefendant  jointly  liable,  or,  if  called  by  the  otlicr 
defendant,  he  might  have  relieved  himself  by  proof  that  there  was  no  joint 
liability.  If  the  interest  of  the  witness  was  equal  either  way,  he  was  not 
disqualified.     Ilderton  v.  Atkinson,  7  D.  &  E.  480  (179S). 


158  WITNESSES  (Cll.  2 

command  of  the  defendant.  In  that  case  a  verdict  for  the  plaintiff 
would  operate  as  a  discharge  to  the  witness,  there  being  no  contribu- 
tion in  actions  of  tort.  Here,  on  the  contrary,  it  brought  a  liability 
upon  him. 

Rule  discharged.^* 


REEVES  V.  SYMONDS. 

(Nisi  Prius,  1714.     10  Mod.  291.) 

This  was  an  action  brought  by  Reeves  for  a  quantity  of  stockings 
sold  to  Symonds. 

The  defence  of  Symonds,  that  it  was  not  he  that  bought  the  stock- 
ings, but  his  son,  who  sent  them  to  France  in  the  way  of  trade. 

To  prove  this  he  would  have  called  his  son. 

Parker,  Chief  Justice.  He  cannot  be  an  evidence ;  because  here  is 
an  advantage  made  by  way  of  trade ;  and  to  whom  this  advantage 
shall  accrue  depends  entirely  upon  this  question,  who  made  this  con- 
tract? and  now  one  comes  to  swear,  that  he  made  the  contract  him- 
self. 

Darnell,  Serjeant.  He  may  be  a  witness  ;  because  he  will  neither  get 
nor  lose  by  the  event  of  this  cause ;  for  what  is  now  given  in  evidence 
cannot  be  given  in  evidence  in  another  action. 

Parker,  Chief  Justice.  This  you  have  often  said,  and  I  as  often  an- 
swered. If  an  action  be  brought  by  a  commoner  for  his  right  of  com- 
mon, shall  another  person  that  claims  a  right  of  common  upon  the 
same  title  be  allowed  to  give  evidence?  No;  and  yet  it  is  certain  that 
he  can  neither  get  nor  lose  in  that  cause ;  for  the  event  of  that  cause 
will  no  way  determine  his  right.  But  though  he  is  not  interested 
in  that  cause,  he  is  interested  in  that  question  upon  which  the  cause 
depends ;  and  that  will  be  a  bias  upon  his  mind.  It  is  not  his  swearing 
the  thing  to  be  true  that  gives  him  any  advantage,  but  it  is  the  thing's 
being  true;  and  the  law  does  judge,  that  it  is  not  proper  to  admit 
a  man  to  swear  that  to  be  true  which  is  plainly  his  interest  should 
be  true.^^ 

84  Concurring  opinions  of  Bayley,  Holroyd,  and  Littledale,  J  J.,  omitted. 
3  5  And  so  in  a  long  opinion  about  the  same  period  in  Lock  v.  Hay  ton, 
Fortesque,  246. 


Sec.  1)  COMPETENCY  159 

LEWIS  V.  FOG. 

(At  Nisi  Prius,  1733.    2  Strange,  944.) 

'  In  an  action  by  the  master  for  the  defendant's  dog's  biting  his  ap- 
prentice, per  quod  servitium  amisit,  the  Chief  Justice  allowed  the  ap- 
prentice to  be  a  witness. ^° 


COMMINS  V.  MAYOR  AND  BURGESSES  OF  OAKHA^IPTON. 
(Court  of  King's  Bench,  1752.     Sayer,  45.) 

Upon  a  rule  to  shew  cause,  why  a  new  trial  should  not  be  had  in 
an  action  upon  the  case,  it  appeared :  that  the  action  was,  for  refus- 
ing to  admit  the  plaintiff  to  the  freedom  of  the  corporation  of  Oak- 
hampton ;  that  at  the  trial  of  the  cause  the  chief  question  was,  wheth- 
er there  was  a  certain  custom  in  the  borough,  under  which  the  plaintiff 
claim.ed  a  right  of  being  admitted?  And  that  the  father  of  the 
plaintiff,  who  had  obtained  his  freedom  by  servitude,  was  not  admitted 
to  prove  this  custom. 

The  question  was,  whether  the  father  was  an  admissible  witness  to 
prove  this  custom? 

It  was  holden  that  he  was. 

And  by  Lee,  C.  J.  The  person,  to  whom  the  remainder  of  an  es- 
tate is,  after  the  determination  of  a  particular  estate  limited  by  a  will, 
cannot  be  admitted  to  prove  the  will;  because  he  has,  although  it  be 
remote,  a  vested  interest  in  the  matter  in  question :  but  it  has  been 
always  holden :  that  the  son  of  the  person,  to  whom  a  particular  estate 
is  devised  by  a  will,  may  be  admitted  to  prove  the  will ;  because,  al- 
though he  may  be  under  a  bias,  he  has  not  a  vested  interest  in  the 
matter  in  question.  Mere  relationship,  how  near  soever  the  relation 
may  be,  does  not  go  to  the  competency  of  a  witness,  unless  there  be 
a  vested  interest  in  the  matter  in  question.  The  bias,  which  a  fa- 
ther is  presumed  to  be  under  in  giving  testimony  in  favour  of  his 
son,  does  certainly  go  to  his  credit :  but  a  father  is,  in  all  cases,  a 
competent  witness  for  his  son,  if  he  have  not  a  vested  interest  in  the 
matter  in  question.  In  the  present  case,  the  father  was  not  immedi- 
ately interested  in  the  matter  in  question ;  nor  could  he  at  any  future 
time  become  interested  therein :  the  freedom  of  a  corporation  not  be- 
ing transmissible. 

It  was,  on  the  contrary,  clearly  against  the  interest  of  the  father, 
who  was  himself  a  freeman,  to  prove  this  custom ;  for  by  the  estab- 
lishment of  a  custom,  under  which  others  as  well  as  his  son  might 
obtain  their  freedom,  his  own  franchise  would  have  been  rendered  less 
valuable. 

3  8  See,  also,  Rex  v.  Huggins,  Fitz-Gibbon,  80  (1730),  wbere  a  witness,  In- 
terested  in  tlie  question,   was  admitted,   because  tlie  verdict  would   not   be 
evidence  in  bis  favor. 


160  WITNESSES  (Ch.  2 

GREEN  V.  NEW  RIVER  CO. 

(Court  of  King's  Bench,  1792.     4  Term  R.  5S9.) 

This  was  an  action  for  consequential  damage  to  the  plaintiff's  horse 
by  reason  of  the  bursting  of  a  pipe  belonging  to  the  New  River  works, 
owing  to  the  negligence  of  the  defendants.  A  witness  was  called  at 
the  trial  before  Lord  Kenyon  at  Westminster  to  prove  the  negligence, 
which  his  lordship  held  to  be  necessary  to  support  the  action,  and  that 
witness  swore  that  he  had  some  hours  before  the  bursting  of  the  pipe, 
and  the  consequent  accident,  informed  the  turncock,  one  of  the  de- 
fendants' servants,  of  the  ouzing  of  the  water,  which  intelligence 
(if  it  had  been  attended  to  in  time)  would  have  enabled  him  to  provide 
against  the  mischief.  In  answer  to  this  the  defendants'  counsel  of- 
fered to  call  the  turncock  himself,  to  disprove  the  evidence  of  the  other 
witness;  which  the  plaintiff  objected  to  without  a  release;  and  none 
such  being  prepared,  his  Lordship  was  of  opinion  that  the  turncock 
was  an  incompetent  witness,  as  he  came  to  disprove  his  own  negli- 
gence, which  if  established  by  the  verdict  would  be  the  ground  of  an 
action  against  himself  by  his  employers.  And  the  jury  having  found 
for  the  plaintiff', 

Erskine  moved  to  set  aside  the  verdict  for  the  rejection  of  the  wit- 
ness, contending  first  that  he  was  not  interested  in  the  event  of  the  suit, 
inasmuch  as  the  verdict  could  not  be  given  in  evidence  in  any  action 
which  the  defendants  might  bring  against  him.  And  even  admitting 
him  to  be  interested,  yet  he  was  a  witness  from  necessity,  on  the  same 
ground  that  coachmen  and  sailors  are  admitted  to  give  evidence  to  dis- 
prove their  own  negligence  in  actions  against  their  masters  and  em- 
ployers for  damage  done  in  their  several  occupations,  or  that  on 
which  a  servant  of  a  tradesman  is  permitted  to  prove  the  delivery 
of  goods.     But 

Per  Curiam.  The  last  instance  cited  is  an  exception  to  the  general 
rule ;  such  a  person  is  admitted  to  give  evidence,  merely  from  neces- 
sity. But  the  exception  does  not  extend  to  the  two  other  cases  men- 
tioned of  the  coacliman  and  the  sailor;  the  verdicts  against  the  propri- 
etors of  those  may  be  respectively  given  in  evidence  in  actions  to  be 
brought  .by  them  against  their  servants,  as  to  the  quantum  of  damages, 
though  not  as  to  the  fact  of  the  injury.  So  the  verdict  in  this  case 
may  be  given  in  evidence  in  an  action  by  the  defendants  against 
the  witness;  and  therefore  he  is  an  incompetent  witness  without  a 
release,^  ^ 

Rule  refused. 

37  Accord:     Martin  v.  Henriclvson,  2  Ld.  Raymond,  1007   (170G). 

That  the  plaintiff's  servant  is  incompetent  to  disprove  his  own  contribu- 
tory negligence  in  an  action  for  a  negligent  injury  to  property  in  the  serv- 
ant's charge,  see  Morish  v.  Foot,  8  Taunt.  454  (ISIS).  But  see  Nix  v.  Cut- 
ting, 4  Taunt.  IS  (ISll),  where,  in  an  action  of  trover  for  the  conversion  of 


Sec.  1)  COMPETENCY  IGl 

SMITH  qui  tarn  v.  PR  ACER. 
(Court  of  King's  Bench,  1796.     7  Term  R.  60.) 

This  was  an  action  for  usury,  tried  before  Lord  Kenyon,  C.  J.,  at 
Guildhall.  In  order  to  prove  the  case,  Bromer  the  borrower  of  the 
money  was  called  as  a  witness ;  and  he  gave  in  evidence  that  on  the 
17th  of  September,  1795,  he  borrowed  of  the  defendant  i900.  to  be 
repaid  on  the  3d  of  October  following,  for  which  he  was  to  pay  ill.  as 
interest.  That  on  the  13th  October,  1795,  he  borrowed  of  the  defend- 
ant £2000.  more,  to  be  repaid  on  the  26th  of  the  same  month,  for  the 
loan  of  which  he  was  to  pay  £42.  and  both  the  principal  sums  and  inter- 
est were  repaid  at  the  stipulated  times  by  Bromer's  drafts  on  his  bank- 
er, which  were  duly  honoured.  That  he  was  still  indebted  to  the  de- 
fendant in  the  sum  of  £4000.  on  a  running  account  for  this  and  other 
loans  of  money.  Bromer  had  before  the  trial  become  a  bankrupt,  and 
had  not  obtained  his  certificate.  It  was  objected  at  the  trial  that  he 
was  not  a  competent  witness,  on  the  ground  of  interest ;  but  Lord 
Kenyon,  C.  J.,  over- ruled  the  objection,  and  the  plaintiff  obtained  a  ver- 
dict on  the  counts,  stating  the  two  transactions  above  mentioned,  there 
being  other  usurious  transactions  stated  in  other  counts  which  were  not 
proved. 

A  rule  having  been  obtained  on  a  former  day,  calling  on  the  plaintiff 
to  shew  cause  why  the  verdict  should  not  be  set  aside,  and  a  new  trial 
had  on  this  ground.     *     *     * 

Lord  Kenyon,  Ch.  J.  The  case  of  Bent  v.  Baker  [3  Term  R.  27] 
laid  down  a  clear  and  certain  rule  by  which  I  have  ever  since  endeav- 
oured to  regulate  my  opinion  in  causes  coming  before  me  at  Nisi  Prius, 
though  probably  I  may  not  have  decided  properly  in  every  instance, 
when  called  upon  to  form  an  opinion  on  the  sudden.  The  rule  there 
laid  down  was,  that  no  objection  could  be  made  to  the  competency  of 
a  witness  upon  the  ground  of  interest,  unless  he  were  directly  inter- 
ested in  the  event  of  the  suit,  or  could  avail  himself  of  the  verdict  in 
the  cause,  so  as  to  give  it  in  evidence  on  any  future  occasion  in  support 
of  his  own  interest.  We  are  now  called  upon  to  review  that  decision; 
and  the  case  of  Abrahams  v.  Bunn  [4  Burr.  2251]  has  been  cited.  The 
report  of  the  latter  in  Burrow  is  a  very  full  one;  but  I  have  a  MS  note 
of  it  something  fuller.  Lord  Mansfield  there  stated  the  great  doubt 
and  contradiction  which  had  long  prevailed  in  the  cases  upon  the  dis- 
tinction between  objections  which  went  to  the  competency  and  such  as 
went  to  the  credit  only  of  a  witness.    That  the  Courts  had  long  been 

a  horse,  it  was  held  that  a  person  who  had  sold  the  horse  to  the  defendant 
under  an  alleged  authority  from  the  plaintiflf  was  a  competent  witness  for 
the  defendant  to  prove  that  fact. 

For  an  early  case  of  disqualification   because  of  possible   liabilitj]  over, 
see  Wicks  v.  SmallbrooU,  1  Sid.  51  (1GU2). 
HiNT.Ev.— 11 


162  WITNESSES  (Ch.  2 

misled  by  the  authority  of  Lord  Holt  in  deciding  the  case  of  the  King 
V.  Whiting,  Salk.  283,  where  upon  an  indictment  for  a  cheat  in  obtain- 
ing a  person's  subscriptions  to  a  note  of  ilOO.  instead  of  £5.,  he  re- 
jected the  evidence  of  the  maker  of  the  note;  because  if  the  defend- 
ant were  convicted.  Lord  Holt  said  the  verdict  would  be  sure  to  be  heard 
of  in  an  action  on  the  note  to  influence  the  jury.  That  this  decision  was 
followed  by  Lord  Hardwicke  in  the  King  v.  Nunez,  2  Stra.  1043 ;  but 
that  in  the  King  v.  Bray,  Rep.  temp.  Hardw.  358,  his  Lordship  had  an 
opportunity  of  reviewing  his  own  opinion  and  that  of  Lord  Holt,  and 
was  then  satisfied  that  the  objection  went  only  to  the  credit  and  not  to 
the  competency  of  the  witness;  and  that,  as  to  hearing  of  the  verdict, 
he,  sitting  as  a  judge,  could  only  hear  of  it  judicially;  and  if  it  could 
not  be  afterwards  given  in  evidence  for  the  witness  it  was  no  objection 
to  his  competency.  Lord  Mansfield  also  observed  that  since  the  King 
v.  Whiting  great  light  had  been  thrown  upon  the  subject  by  three  decid- 
ed cases ;  those  of  R.  v.  Bray,  the  East  India  Company  v.  Gosten,  and 
Bailie  v.  Wilson  before  the  delegates.  And  he  laid  it  down  as  a  rule 
that  the  objection  to  a  witness  on  the  ground  of  future  interest  only 
went  to  his  credit,  unless  the  judgment  could  be  given  in  evidence  for 
him  in  any  other  suit.  Now  that  was  the  very  point  decided  in  Bent  v. 
Baker;  and  therefore  the  authority  of  that  case  stands  fully  confirmed. 
Upon  the  authority  therefore  of  all  these  cases  I  am  clearly  of  opinion 
that  Bromer  was  a  competent  witness  in  this  case;  and  that  the  objec- 
tion to  the  situation  in  which  he  stood  went  only  to  his  credit,  of  which 
the  jury  alone  were  to  judge. 

The  other  Judges  assenting, 

Rule  discharged. 


BENJAMIN  V.  PORTEUS. 
(Court  of  Common  Pleas,  1798.    2  H.  Bl.  590.) 

In  this  action  for  goods  bargained  and  sold,  brought  to  recover  the 

O  O  JO 

price  of  a  quantity  of  indigo,  which  was  sold  for  three  shillings  a 
pound  weight ;  one  Bennett,  the  broker  who  was  employed  by  the 
plaintiff  was  called  as  a  witness  to  prove  the  contract,  and  being  ex- 
amined on  the  voir  dire,  stated  that  by  this  agreement  with  the  plain- 
tiff he  was  to  have  for  his  own  profit  whatever  sum  he  could  get  for 
the  indigo  above  half  a  crown  for  the  pound,  which  price  the  plaintiff 
had  fixed  for  himself,  but  not  an  allowance  of  so  much  per  cent,  on  the 
sale  by  way  of  commission  in  the  usual  way.  The  Lord  Chief  Jus- 
tice at  the  trial  thought  this  was  an  objection  to  the  competence  of 
the  witness  on  the  score  of  interest,  and  that  as  he  did  not  come  with- 
in the  description  of  a  broker  or  factor,  the  exception  to  the  general 
rule  made  jn  favour  of  their  testimony  being  admissible  to  prove  con- 
tracts made  by  them  was  not  applicable  to  him,  and  as  he  refused  to 
release,  the  plaintiff  was  in  consequence  non  suited. 


Sec.  1)  COMPETENCY  103 

Lord  CiiiEF  Justice  Eyre.  The  inclination  of  my  opinion  is,  that 
this  evidence  ought  to  have  been  rejected.  The  principle  is  admit- 
ted, that  where  a  witness  has  a  direct  interest  in  the  event  of  a  cause, 
his  testimony  cannot  be  received.  But  from  necessity  an  exception 
has  been  introduced  in  the  case  of  factors  and  brokers,  because  from 
the  nature  of  the  transactions  in  which  they  are  engaged,  the  con- 
tracts they  make  for  other  persons  cannot  be  proved  without  them. 
It  is  true  indeed,  there  is  no  magic  in  the  term  "factor"  or  "broker," 
and  that  every  man  who  makes  a  contract  for  another  comes,  in  some 
sort,  within  the  description.  But  here  it  was  not  simply  a  contract 
that  Bennett  made  for  another,  but  for  another  and  himself.  He  was 
to  have  all  the  profit  which  could  be  made  upon  the  sale  of  the  indigo 
above,  2s.  6d.  on  every  pound  weight,  the  stated  sum  that  was  to  be 
paid  to  his  principal.  His  profit  therefore  was  not  to  arise  from  the 
profit  of  the  principal,  but  was  collateral  to  and  beyond  it.  He  can- 
not wrong  the  principal,  but  he  may  wrong  the  person  with  whom  he 
deals,  by  screwing  him  up  beyond  the  real  value  of  the  goods,  for  the 
sake  of  his  own  profit,  and  therefore  he  has  a  separate  interest  to 
establish  a  particular  contract  which  he  comes  to  prove.  It  is  true 
that  an  ordinary  broker  has  an  interest,  but  it  is  not  such  as  to  out- 
weigh the  necessity  of  his  testimony  being  received.  If  he  is  to  have 
£S.  per  cent,  commission  on  the  sale,  where  he  gets  one  shilling  for 
himself  he  gets  nineteen  for  his  employer,  and  his  gain  arises  out  of 
the  gain  of  his  employer.  But  here  the  agent  takes  a  profit  in  fact 
as  a  principal,  with  only  2s.  6d.  for  his  employer.  A  regular  broker 
must  take  care  of  his  employer's  interest  as  well  as  his  own,  and  has 
not  such  a  temptation  to  raise  the  price  of  the  commodity  to  the  buyer. 
Besides,  I  think  the  employing  persons  to  transact  business  upon  such 
terms  as  these  is  neither  necessary  nor  convenient,  but  on  the  con- 
trary is  extremely  mischievous  in  commerce,  and  not  to  be  encouraged. 
Brokers  are  men  acting  in  a  known  established  character,  of  known  de- 
scription and  responsibility,  and  therefore  more  fit  to  be  trusted  and 
employed  in  commercial  transactions. 

Heath,  J.  With  great  respect  for  my  Lord  Chief  Justice,  I  think 
this  witness  was  admissible.  I  cannot  distinguish  him  from  a  broker : 
he  must,  I  think,  be  considered  as  a  broker,  and  not  as  principal;  he 
is  only  paid  for  his  trouble  in  a  particular  manner.  The  reason  for 
admitting  him  is  the  necessity  of  the  thing,  for  it  is  often  for  the  bene- 
fit of  trade  that  bargains  of  this  kind  shall  be  kept  secret.  It  appears 
to  me  to  be  equally  the  interest  of  a  broker,  who  is  to  have  a  per- 
centage to  screw  up  the  price,  as  it  was  of  this  person.  It  is  indeed 
his  duty  to  screw  up  the  buyer ;  he  must  tell  the  whole  truth  respect- 
ing the  conmiodity,  but  having  done  that,  it  is  his  duty  to  ask  the 
highest  possible  price.  I  cannot  consider  a  broker  as  the  agent  for 
both  parties ;    he  appears  to  me  to  be  solely  the  agent  of  the  vendor. 

RooKE,  J.     I  agree  with  my  Brother  Heath  in  thinking  this  evi- 


164  WITNESSES  (Ch.  2 

dence  ought  to  have  been  admitted.  I  see  no  difference  in  point  of 
interest,  between  a  person  who  sells  upon  commission,  and  one  who 
is  to  have  a  share  of  the  profit :  nor  can  I  make  a  distinction  between 
this  witness  and  a  common  broker.  He  is  an  agent  who  makes  a 
bargain  between  two  others,  and  whose  evidence  is  admissible  from 
necessity,  which  is  a  necessity  created  by  the  parties  themselves. 

Lord  Chief  Justice.  My  Brothers  have  stated  it  as  a  principle, 
upon  which  they  rest  their  opinions,  that  there  is  no  difference  be- 
tween an  agent  taking  to  himself  a  part  of  the  price  for  which  he 
bargains,  and  taking  a  commission  from  his  employer  upon  that  price. 
If  this  principle  can  be  supported,  I  agree  that  the  evidence  ought  to 
have  been  received.     Let  there  be  a  new  trial. 

Rule  absolute.** 


DOE  dem.  MAYOR  AND  BURGESSES  OF  STAFFORD  et  al.  v. 

TOOTH. 

(Court  of  Exchequer,  1829.     3  Younge  &  J.,  19.) 

Ejectment  to  recover  certain  property  leased  by  the  corporation  to 
the  defendant.  One  of  the  burgesses,  after  releasing  his  interest  in 
the  property  in  question,  was  admitted  to  prove  the  notice  to  quit. 
The  plaintiff  had  a  verdict  and  the  defendant  obtained  a  rule  nisi  to 
set  it  aside.*® 

Garrow,  B.  This  case  depends  entirely  upon  the  question  whether 
the  evidence  of  Tildesley  was  that  of  a  person  who  was  a  competent 
witness,  which  question  is  disposed  of  by  a  simple  statement  of  facts. 
If  the  corporation  obtain  a  verdict,  they  will  thereby  be  entitled  to 
certain  property,  which,  added  to  the  general  stock  of  the  corpora- 
tion, will  become  a  fund  distributable  amongst  the  members  of  the 
corporation,  of  which  the  witness  is  one.  In  that  view  of  the  case, 
therefore,  he  would  clearly  be  disqualified,  because  his  evidence  tends 
to  increase  a  fund  in  which  he  has  a  direct  interest.  But  it  may  be 
said  he  has  released  all  claim  to  this  specific  property.  It  must  be 
admitted,  without  reference  to  this  property,  that  he  is  interested  in 
the  general  funds  of  the  corporation,  and  if  that  be  so,  there  is  a 
second  mode  in  which  that  interest  may  be  affected,  viz.  by  decreasing 
that  general  fund  by  the  amount  of  the  costs,  which  must  come  out 

88  See,  also,  Martin  v,  Horrell,  1  Strange,  647  (1726),  a  case  of  an  agent 
proving  an  overpayment  by  liimself  to  tlie  defendant  in  an  action  by  the 
principal  to  recover  back;  Dixon  v.  Cooper,  3  Wilson,  40  (1769),  like  prin- 
cipal case,  except  that  the  broker  had  a  per  cent,  commission;  Moses  v. 
Boston  &  M.  R.  R.,  24  N.  H.  71,  55  Am.  Dec.  222  (1851),  where  a  drayman 
was  held  competent  to  prove  delivery  to  a  carrier,  though  he  would  have 
been  liable  to  the  plaintiff  if  he  had  misdelivered  or  failed  to  deliver. 

In  Theobald  v.  Tregott,  11  Mod.  261  (1710),  in  an  action  by  a  master 
against  a  servant  for  money  collected,  the  debtor  was  held  incompetent  to 
prove  the  payment. 

8  9  Statement  condensed  and  opinion  of  Hullock,  B.,  omitted. 


Sec.  1)  COMPETENCY  1G5 

of  that  fund  in  the  event  of  the  verdict  being  found  against  the  cor- 
poration. In  either  view  of  the  case,  therefore,  he  was  an  incompe- 
tent witness,  and  the  consequence  will  be  that  the  verdict  must  be  set 
aside,  and  the  rule  made  absolute. 

Vaugiian,  B.  I  concur  in  the  opinion  expressed  by  my  learned 
Brothers.  In  the  case  of  Weller  v.  The  Governors  of  the  Foundling 
Hospital,  P.  N.  P.  153,  the  witnesses  were  admitted  because  they  were 
mere  trustees,*"  and  had  not  the  least  personal  interest.  That  is  not 
the  case  here,  and  wherever  it  is  once  admitted  that  a  witness  has  an 
actual  and  direct  interest  in  a  fund  which  may  be  affected  by  the  ver- 
dict, he  is  thereby  rendered  incompetent. 

Rule  abbolute. 


PAULL  V.  BROWN. 

(Nisi  Prius,  1S06.     6  Esp.  34.) 

Trover,  for  a  quantity  of  household  furniture  claimed  by  the  plain- 
tiff, as  having  belonged  to  the  intestate. 

To  prove  property  in  part  of  the  articles  claimed,  a  witness  was 
called.  He  was  asked  on  his  voir  dire,  if  he  was  not  a  creditor  of 
the  intestate?  and  it  being  answered  that  he  was,  Garrow  objected 
to  his  competency,  on  the  ground  that  he  was  coming  to  increase  the 
estate  of  the  intestate,  which  was  the  fund  out  of  which  his  debt  was 
to  be  paid.  He  instanced  the  case  of  a  commission  of  bankruptcy,  in 
which  in  an  action  by  the  assignees  of  a  bankrupt,  a  creditor  cannot 
be  admitted  as  a  witness,  to  prove  property  belonging  to  the  bankrupt 
estate. 

It  was  answered  by  Shepherd,  Serjt.  That  there  was  no  difference 
in  this  case,  and  that  wherein  the  intestate  himself  was  plaintiff,  in 
which  latter  case  it  was  very  clear,  there  could  be  no  objection,  to 
a  man  to  whom  he  owed  money,  and  who  so  was  his  creditor  being 
called  as  a  witness.  The  right  of  the  representative  was  the  same : 
That  the  case  of  bankruptcy  differed,  for  there  there  was  a  presumed 
insolvency,  so  that  the  witness  bettered  his  situation,  and  the  effect  of 
his  evidence  was  to  increase  the  fund  from  whence  the  payment  of  his 
debt  was  to  be  made.  That  a  creditor,  under  a  bankruptcy,  was  en- 
titled to  a  certain  share  of  the  sum  recovered,  which,  under  an  ad- 
ministration, he  might  not  have,  as  his  share  of  the  money  recovered 
might  depend  on  there  being  no  other  debts  of  a  higher  nature,  or 
the  preference  of  the  administrator;  besides,  too,  he  might  be  deem- 
ed a  party,  as  the  bankrupt's  property  was  by  the  choice  of  all  the 
creditors  conferred  on  the  assignees,  and  they  brought  action  only 
with  the  consent  of  all  the  other  creditors,  so  that  they  thereby  be- 
came as  parties. 

•""  For  the  case  of  a  trustee  without  interest  as  to  costs,  see  Lowe  v.  Jo- 
iiffe,  1  Wm.  Blaclistone,  305  (1762). 


166  WITNESSES  (Ch.  2 

MacDonald,  Chief  Baron,  ruled,  that  the  witness  was  admissible. 
It  was  not  distinguishable  in  principle,  from  the  case  put  of  an  ac- 
tion of  the  party  himself.  The  administrator  represented  the  testa- 
trix herself,  and  it  never  was  heard  of,  that  a  person  being  a  creditor 
to  a  party,  made  him  objectionable  as  a  witness,  and  yet  the  effect  of 
his  testimony  was  to  increase  his  debtor's  ability  to  pay;  such  inter- 
est was  too  remote. 

In  the  case  of  bankruptcy,  all  the  property  of  the  bankrupt  be- 
longed to  the  creditors,  though  nominally  by  operation  of  law  vest- 
ed in  the  assignees.  A  creditor  therefore  came  to  give  evidence  for 
himself.    The  witness  was  admitted. 

Verdict  for  tlie  plaintiff.*^ 


DOE  dem.  LORD  TEYNHAM  v.  TYLER. 
(Court  of  Common  Pleas,  1830.     6  Bing.  390.) 

This  ejectment  was  brought  to  try  the  validity  of  a  recovery  suffer- 
ed by  the  father  of  the  lessor  of  the  plaintiff  in  1789. 

The  lands  in  question  had,  by  a  deed  bearing  date  in  1756,  been 
settled  on  the  father  of  the  lessor  of  the  plaintiff  in  tail  male;  re- 
mainder among  others  to  Philip  Roper,  uncle  of  the  lessor  of  the 
plaintiff,  in  tail  male. 

The  objection  to  the  recovery  was,  that  the  father  of  the  lessor  of 
the  plaintiff,  at  the  time  of  suffering  it,  was  of  unsound  mind,  or  at 
least  so  imbecile  as  to  be  liable  to  be  practised  on. 

At  the  trial  before  Tindal,  C.  J.,  Middlesex  sittings  after  Michael- 
mas term,  the  evidence  of  Philip  Roper,  the  uncle  of  the  lessor  of 
the  plaintiff,  and  ninety  years  old,  was  tendered,  and  rejected  on  the 
ground  that  the  witness  had  an  interest  in  the  result  of  the  cause, 
although  the  lessor  of  the  plaintiff  had  sons  and  grandsons. 

A  verdict  having  been  given  for  the  defendant, 

Jones,  Serjt.,  moved  for  a  new  trial,  on  the  ground  of  the  exclusion 
of  this  evidence,  and  the  admission  of  other  evidence  which  he  al- 
leged ought  to  have  been  excluded;  but  the  objections  on  this  latter 
head  are  not  stated  now,  as  the  decision  on  them  was  deferred. *- 

TiNDAT,,  C.  J.  This  rule  has  been  moved  for  on  two  grounds :  first, 
on  the  exclusion  of  evidence  which  ought  to  have  been  admitted; 
secondly,  on  the  admission  of  evidence  which  ought  to  have  been 
rejected. 

The  question  as  to  the  first  ground  of  exception  is  this, — Whether 
the  evidence  of  the  remainder-man  in  tail  is  admissible  on  the  part  of  a 

*i  So  a  legatee  may  be  a  competent  witness  for  the  executor.  No  well  v. 
Davies,  5  B.  «&  Ad.  308  (1833).  But  not  a  residuary  legatee.  Yardley  v.  Ar- 
nold, 10  M.  &  W.  141  (1842).  Nor  tlie  creditor  of  a  bankrupt  ShuttlewortU 
V.  Bravo,  1  Strange,  507  (1722). 

*2  Statement  condensed. 


Sec.  1)  COMPETENCY  1G7 

prior  tenant  in  tail  who  has  brought  ejectment  to  try  the  vahdity  of 
a  common  recovery,  on  the  ground  of  the  incompetency  of  the  ten- 
ant in  tail  by  whom  it  was  suffered;  and  as  to  this  objection,  we  are 
of  opinion,  both  upon  principle  and  on  the  authority  of  decided  cases, 
that  such  evidence  is  not  admissible. 

The  general  rule  upon  which  the  incompetency  of  witnesses  is 
founded,  is  laid  down  by  Chief  Baron  Gilbert,  in  his  Law  of  Evi- 
dence, p.  106,  in  these  terms:  "The  law  looks  upon  a  witness  as  in- 
terested, when  there  is  a  certain  benefit  or  disadvantage  to  the  witness 
attending  the  consequence  of  the  cause  one  way."  Now  this  benefit 
may  arise  to  the  witness  in  two  cases:  First,  where  he  has  a  direct 
and  immediate  benefit  from  the  event  of  the  suit  itself;  and,  sec- 
ondly, where  he  may  avail  himself  of  the  benefit  of  the  verdict  in 
support  of  his  claim  in  a  future  action :  and  where  the  case  falls  with- 
in the  first  description,  in  which  the  interest  is  more  immediate  and 
direct,  there  is  no  occasion  to  have  recourse  to  the  second  principle, 
where  the  interest  is  one  degree  removed. 

Cases  daily  occur  in  which  the  witness  is  rejected  upon  the  first 
ground.  An  executor  brings  an  action  for  a  debt  due  to  his  testator's 
estate :  the  residuary  legatee  is  not  an  admissible  witness.  Not  be- 
cause this  verdict  would  be  evidence  for  or  against  him  in  any  future 
suit,  for  he  can  neither  be  plaintifif  nor  defendant  in  an  action  relating 
to  this  debt;  but  because  he  receives  an  immediate  benefit  by  a  ver- 
dict for  the  plaintiff.  So,  the  tenant  in  possession,  in  ejectment,  could 
not  be  called  to  prove  the  title  of  the  defendant  under  whom  he  claims 
to  hold ;  nor  could  the  landlord  be  called  to  prove  the  title  of  the 
tenant  who  defended  the  possession.  Nor  in  ejectment,  after  a  prima 
facie  case  is  made  out  against  the  defendant,  could  a  witness  be  called 
to  prove  himself  a  real  tenant,  and  the  defendant  his  bailiff;  for  the 
verdict  and  judgment  in  this  very  action  would  have  the  effect  of 
turning  him  out  of  possession  immediately. 

In  all  these  cases  the  witness  is  excluded,  not  because  the  verdict 
would  be  evidence  for  or  against  him  in  a  future  action,  but  on  ac- 
count of  the  immediate  benefit  or  injury  he  would  receive  by  the  de- 
termination of  the  very  cause  itself. 

Now  the  present  case  falls  within  this  principle.  If  Lord  Teynham 
recovers  in  this  ejectment,  he  will  be  in  as  of  his  former  right.  Noth- 
ing is  better  established  than  that  the  lessor  of  the  plaintiff,  when  he 
recovers  in  an  ejectment,  is  in,  not  merely  as  of  the  term  which  he 
has  granted  to  John  Doe,  but  as  of  the  right  and  title  which  he  has 
proved  in  himself.  If  he  has  only  a  chattel  interest,  he  is  in  as  of  that 
term;  but  if  he  has  a  freehold,  he  is  in  as  of  that  freehold;  if  ten- 
ant in  tail,  he  is  in  as  such  tenant  in  tail.  (See  the  judgment  of  Lord 
Mansfield  in  Taylor  v.  Horde,  1  Burr.  114.) 

Lord  Teynham,  therefore,  if  he  should  have  recovered  a  verdict, 
would  have  been  tenant  in  tail  in  possession  under  the  settlement 


168  WITNESSES  (Ch.  2 

of  1756.  But,  by  the  very  same  verdict,  Philip  Roper,  the  proposed 
witness,  would  have  acquired  a  vested  interest  in  the  remainder  in 
tail  under  the  same  settlement. 

The  seisin  of  the  tenant  in  tail  in  possession  is  the  seisin  of  the 
remainder-man;  the  estate  in  possession,  and  the  estate  in  remainder 
being  for  this  purpose  but  one  estate.  It  seems,  therefore,  to  us,  that, 
upon  principle,  the  witness  had  a  direct  and  immediate  interest  in 
procuring  a  verdict  which  should  have  the  effect  of  revesting  his 
own  remainder  in  tail.  And,  upon  authority,  besides  the  cases  which 
have  been  referred  to  in  1  Salk,  283,  and  1  Ld.  Raym.  730,  there  is 
an  opinion  of  Lord  Chief  Justice  Lee  in  the  case  of  Commins  v.  The 
Mayor  of  Oakhampton,  Say.  Rep.  45 :  "The  person  to  whom  the  re- 
mainder of  an 'estate  is,  after  the  determination  of  a  particular  es- 
tate, limited  by  a  will,  cannot  be  admitted  to  prove  the  will;  because 
he  has,  although  it  be  remote,  a  vested  interest  in  the  matter  in  ques- 
tion." 

We  therefore  think,  that  this  rule  to  show  cause  ought  not  to  be 
granted  upon  the  first  ground  of  objection ;  but  with  respect  to  the 
second,  without  giving  any  opinion  upon  the  result  of  the  rule,  we 
grant  a  rule  to  show  cause. 

Rule  granted  upon  the  second  objection. 


DOE  dem.  NIGHTINGALE  v.  MAISEY. 
(Court  of  King's  Bench,  1830.     1  Barn.  &  Adol.  439.) 

Ejectment  for  a  cottage  and  land.  At  the  trial  before  Park,  J.,  at 
the  Summer  assizes  for  the  county  of  Gloucester,  it  appeared  that  the 
lessor  of  the  plaintiff  had  been  in  possession  of  the  premises  under  a 
conveyance  to  him  from  Elizabeth  Maisey,  made  about  three  years  ago, 
but  the  defendant  had  obtained  possession  thereof  from  a  tenant  of 
the  lessor  of  the  plaintiff.  Elizabeth  Maisey  had  been  in  possession 
of  the  premises  for  upwards  of  thirty  years,  when  she  sold  them  for 
a  valuable  consideration  to  Nightingale.  The  defendant  proved  that 
his  grandfather  (whom  his  father  survived)  was  possessed  of  the  prem- 
ises, having  enclosed  them  on  the  side  of  a  road,  and  gave  them  up  to 
his  daughter  Elizabeth  Maisey,  upon  a  family  agreement  that  she 
was  to  have  them  for  her  life  for  taking  care  of  them;  or,  in  other 
words,  that  Elizabeth  Maisey  never  had  any  adverse  possession.  To 
prove  that  the  defendant  was  heir  to  his  father,  and  also  to  prove 
that  tiie  possession  of  Elizabeth  Maisey  was  under  the  family  arrange- 
ment, the  defendant  called  his  mother.  It  was  objected  by  the  plain- 
tiff, that  she  was  incompetent,  because  she  came  to  prove  a  seisin  in 
law  in  her  husband,  and  thus  her  evidence  would  go  towards  es- 


Sec.  1)  COMPETENCY  169 

tablishing  that  she  was  entitled  to  dower.  The  learned  Judge  over- 
ruled the  objection,  and  received  the  evidence,  and  the  defendant  had 
a  verdict. 

Godson,  on  a  former  day  in  this  term,  moved  for  a  new  trial.  The 
witness  was  incompetent,  inasmuch  as  she  by  her  own  evidence  alone 
proved  a  seisin  in  law  in  her  husband.  The  title  of  the  lessor  of  the 
plaintiff  being  one  of  possession  under  a  conveyance  from  Elizabeth 
Maisey,  if  it  remained  uncontradicted  there  never  could  be  a  time  at 
which  the  witness's  husband  was  seised  in  law  of  the  premises.  She 
at  least  assisted  her  case  for  dower  by  her  evidence ;  for  if  the  de- 
fendant continued  in  possession,  she  had  only  to  prove  that  he  took 
by  descent,  and  her  case  would  be  complete ;  whereas,  if  her  evidence 
were  rejected,  and  the  lessor  of  the  plaintiff  were  in  possession,  then 
she  would  be  bound  to  prove  aliunde,  that  her  husband  was  ever 
seised  in  law,  and  it  did  not  appear  that  any  such  evidence  was  in  ex- 
istence. 

Lord  Tenterden,  C.  J.,  now  delivered  the  judgment  of  the  Court. 
The  question  in  this  case  was,  whether  the  mother  of  the  defendant 
was  an  incompetent  witness,  inasmuch  as  she  would  be  entitled  to  dow- 
er if  her  husband  was  seised.  On  consideration,  we  are  all  of  opin- 
ion she  was  competent.  She  had  no  interest,  of  which  the  law  as  to 
evidence  takes  notice,  in  the  event  of  the  suit.  The  judgment  in  the 
action  would  be  no  evidence  of  the  husband's  seisin.  If  he  was  seised, 
she  is  equally  entitled  to  dower,  whether  the  premises  be  in  the  hands 
of  the  defendant  or  the  lessor  of  the  plaintiff. 

Rule  refused.*' 


(B)   Under  Modern  Stalutes 
UNITED  STATES  COMPILED  STATUTES  1913. 

§  1464.**  (R.  S.  §  858,  as  amended.  Act  June  29,  1906,  c.  3608.) 
Competency  of  Witnesses  in  Civil  Cases  to  be  Determined  by  Lazvs  of 
State. — The  competency  of  a  witness  to  testify  in  any  civil  action,  suit, 
or  proceeding  in  the  courts  of  the  United  States  shall  be  determined  by 
the  laws  of  the  state  or  territory  in  which  the  court  is  held. 

*8  See,  also.  Doe  v.  Clarke,  .3  Bingham,  New  Cases,  429  (1832). 

**  Tliis  section,  as  enacted  in  the  Revised  Statutes,  was  as  follows:  "lu 
the  courts  of  the  United  States  no  witness  shall  be  excluded  in  any  action 
on  account  of  color,  or  in  any  civil  action  because  he  is  a  party  to  or  in 
terestcd  in  the  issue  tried:  Provided,  that  in  actions  by  or  aj^ainst  execu- 
tors, administrators,  or  guardians,  in  which  judgment  may  be  rendered  for 
or  against  them,  neither  party  shall  be  allowed  to  testify  against  the  other, 
as  to  any  transaction  with,  or  statement  by,  the  testator,  intestate,  or  ward, 
unless  called  to  testify  thereto  by  the  opposite  party,  or  required  to  testify 
thereto  by  the  court.  In  all  other  respects,  the  laws  of  the  state  in  which 


170  WITNESSES  (Ch.  2 

§  1465.*''  (Act  March  16,  1878,  c.  37.)  Competency  as  Witnesses 
of  Defendants  in  Criminal  Cases. — In  the  trial  of  all  indictments,  in- 
formations, complaints,  and  other  proceedings  against  persons  charged 
with  the  commission  of  crimes,  offences,  and  misdemeanors,  in  the 
United  States  courts,  territorial  courts,  and  courts-martial,  and  courts 
of  inquiry,  in  any  state  or  territory,  including  the  District  of  Colum- 
bia, the  person  so  charged  shall,  at  his  own  request  but  not  otherwise, 
be  a  competent  witness.  And  his  failure  to  make  such  request  shall 
not  create  any  presumption  against  him.     (20  Stat.  30.) 


NEW  YORK  CODE  OF  CIVIL  PROCEDURE.''^ 

§  828.  No  Witness  to  be  Excluded  by  Reason  of  Interest,  etc. — 
Except  as  otherwise  specially  prescribed  in  this  title,  a  person  shall 
not  be  excluded  or  excused  from  being  a  witness,  by  reason  of  his  or 
her  interest  in  the  event  of  an  action  or  special  proceeding;  or  be- 
cause he  or  she  is  a  party  thereto ;  or  the  husband  or  wife  of  a  party 
thereto,  or  of  a  person  in  whose  behalf  an  action  or  special  proceed- 
ing is  brought,  prosecuted,  opposed,  or  defended. 

§  829.  [Am'd  1877,  1881.]  When  Party,  etc..  Cannot  be  Exam- 
ined.— Upon  the  trial  of  an  action,  or  the  hearing  upon  the  merits  of 
a  special  proceeding,  a  party  or  a  person  interested  in  the  event,  or  a 
person  from,  tlirough  or  under  whom  such  a  party  or  interested  per- 

the  court  is  held  shall  be  the  rules  of  decision  as  to  the  competency  of  wit- 
nesses in  the  courts  of  the  United  States  in  trials  at  common  law,  and  in 
equity  and  admiralty." 

It  Vv'as  amended  to  read  as  set  forth  here  by  Act  June  29,  1906,  c.  3G0S, 
cited  above. 

All  persons  within  the  jurisdiction  of  the  United  States  are  entitled  to  the 
same  right  to  give  evidence  as  are  white  citizens,  by  Rev.  St.  §  1977. 

4  5  Taney,  C.  J.,  in  United  States  v.  Reid,  12  How.  361,  13  L.  Ed.  1023 
(1851):  "Nor  is  there  any  act  of  Congress  prescribing  in  express  words  the 
rule  by  which  the  courts  of  the  United  States  are  to  be  governed,  in  the 
admission  of  testimony  in  criminal  cases.  But  we  think  it  may  be  found 
witli  sutricient  certainty,  not  indeed  in  direct  terms,  but  by  necessary  impli- 
cation, in  the  acts  of  1789  and  1790,  establishing  the  courts  of  the  United 
States,  and  providing  for  the  punishment  of  certain  offenses.  And  the  law 
by  which,  in  the  opinion  of  this  court,  the  admissibility  of  testimony  in 
criminal  cases  must  be  determined,  is  the  law  of  the  state,  as  it  was  when 
the  courts  of  the  United  States  were  established  by  the  Judiciary  Act  of 
1789.  The  subject  is  a  grave  one,  and  it  is  therefore  proper  that  the  court 
should  state  fully  the  grounds  of  its  decision." 

In  Logan  v.  United  States,  144  U.  S.  263,  12  Sup.  Ct.  617,  36  U.  Ed.  429 
(1892),  a  similar  rule  was  applied  where  the  question  arose  in  one  of  the 
states  admitted  at  a  later  period.  But  see  Rosen  v.  United  States,  245  U.  S. 
467.  38  Sup.  Ct.  148,  G2  L.  Ed.  40G  (1918),  ante,  page  148. 

4  8  The  statutes  of  the  various  states  differ  more  or  less  in  wording  and  in 
detail,  so  that  it  is  impracticable  to  attempt  any  extensive  comparison.  The 
cases  following  in  this  subsection  are  merely  intended  to  illustrate  some  of 
the  main  features.  The  student  must  necessarily  be  left  to  work  out  the 
exact  rule  in  any  given  jurisdiction,  from  a  construction  of  the  particular 
statute  involved. — Editor. 


Sec.  1)  COMPETENCY  171 

son  derives  his  interest  or  title,  by  assignment  or  otherwise  shall  not 
be  examined  as  a  witness  in  his  own  behalf  or  interest,  or  in  behalf 
of  the  party  succeeding  to  his  title  or  interest  against  the  executor,  ad- 
ministrator, or  survivor  of  a  deceased  person,  or  the  committee  of  a 
lunatic,  or  a  person  deriving  his  title  or  interest  from,  through  or  under 
a  deceased  person  or  lunatic,  by  assignment  or  othcrv/ise,  concerning  a 
personal  transaction  or  communication  between  the  witness  and  the 
deceased  person  or  lunatic,  except  where  the  executor,  administrator, 
survivor,  committee  or  person  so  deriving  title  or  interest  is  examined 
in  his  own  behalf,  or  the  testimony  of  the  lunatic  or  deceased  person 
is  given  in  evidence  concerning  the  same  transaction  or  communication. 
A  person  shall  not  be  deemed  interested  for  the  purpose  of  this  section, 
by  reason  of  being  a  stockholder  or  officer  of  any  banking  corporation 
which  is  a  party  to  the  action  or  proceeding,  or  interested  in  the  event 
thereof. 


PETERSON  v.  MERCHANTS'  ELEVATOR  CO. 

(Supreme  Court  of  Minnesota,  1910.     Ill  Minn.  105,  12G  N.  W.  534,  27  L    R 
A.  [N.  S.]  816,  137  Am.  St.  Rep.  537.) 

Brown,  J.*''  Defendant  was  engaged  in  operating  a  grain  elevator 
in  the  city  of  Minneapolis.  Plaintiff's  intestate  was  in  its  employ  as 
a  laborer,  and  was  killed  while  in  the  discharge  of  his  duties  by  com- 
ing in  contact  with  an  uncovered  dangerous  machine,  and  this  action 
was  prosecuted  by  his  personal  representative  in  behalf  of  the  next 
of  kin.  A  verdict  was  returned  for  plaintiff,  and  defendant  appealed 
from  an  order  denying  its  alternative  motion  for  judgment  notv/ith- 
standing  the  verdict  or  a  new  trial.     *     *     * 

Defendant  called  as  a  witness  one  of  its  stockholders,  J.  C.  Hensey, 
superintendent  in  charge  of  the  elevator,  and  elicited  from  him  the 
fact  that  some  time  prior  to  the  accident  he  had  a  conversation  with  de- 
cedent in  reference  to  the  motor  and  the  uncovered  cogwheels,  and  he 
was  asked  the  question,  "What  was  the  conversation  ?"  Upon  the  fact 
appearing  that  the  witness  was  a  stockholder  in  defendant  corpora- 
tion, the  court  sustained  plaintiff's  objection  to  the  question,  based  up- 
on section  4663,  Rev.  Laws  1905,  which  prohibits  the  giving  in  evi- 
dence by  a  party  or  person  interested  in  an  action  a  conversation  with 
a  deceased  party  or  person.  The  subject  was  referred  to  again  later 
in  the  examination  of  the  witness,  and  he  was  asked  whether  he 
said  anything  to  decedent  about  oiling  the  motor,  and  the  court  again 
sustained  plaintiff's  objection.  Again,  at  the  close  of  the  trial,  counsel 
interrogated  the  witness  further  in  reference  to  a  conversation  with 
decedent,  the  last  question  being,  "But  you  did  have  some  talk  with  him 
after  the  hood  had  been  taken  off  the  gear?"     To  which  the  witness 

*''  Parts  of  opinion  omitted. 


1T2  WITNESSES  (Ch.  2 

answered  in  the  affirmative.  Upon  objection  being  made  to  further  evi- 
dence along  that  line,  counsel  offered  to  show  that  the  witness  warned 
decedent  of  the  dangers  of  working  about  the  motor  when  the  cover 
was  off  and  instructed  him  how  safely  to  oil  it.  The  court  sustained 
plaintiff's  objection,  and  the  ruling  is  assigned  as  error. 

The  fact  that  the  witness  was  a  stockholder  in  the  corporation  was 
not  disputed,  and  the  question  presented  is  whether  he  came  within 
the  provisions  of  the  statute  respecting  the  admissions  of  evidence  of 
conversations  with  a  deceased  person.  The  question  does  not  require 
extended  discussion.  That  the  witness  was  an  interested  party,  within 
the  meaning  of  the  statute,  cannot  be  seriously  questioned.  He  was 
a  stockholder  and  pecuniarily  interested  in  the  result  of  the  action — a 
direct,  and  not  a  remote  or  speculative,  interest.  The  case  of  Ferine  v. 
Grand  Lodge,  48  Minn.  82,  50  N.  W.  1022,  is  not  in  point.  The  de- 
fendant in  that  case  was  a  mutual  benefit  association,  and  the  person 
called  as  a  witness  for  the  purpose  of  giving  a  conversation  with  a  de- 
ceased member,  upon  whose  certificate  of  membership  the  action  was 
founded,  was  not  a  member  of  the  association  at  the  time  the  conver- 
sation took  place,  and,  though  he  was  such  when  called  as  a  witness, 
he  did  not  become  a  member  until  after  the  death  of  the  certificate 
holder,  and  not  until  the  rights  of  the  parties  thereunder  had  be- 
come fully  vested.  His  interest  in  the  result  of  that  action  was  ex- 
tremely remote,  and  not  such  as  to  come  within  the  meaning  of  the 
statute. 

We  need  not  stop  to  inquire  whether  in  an  action  of  this  kind  a  stock- 
holder of  a  corporation,  who  is  also  its  superintendent  and  manager, 
may  be  heard  to  testify  to  the  fact  that  in  his  capacity  as  manager  or 
superintendent  he  warned  an  employe,  since  dead,  of  the  dangers  of  his 
employment,  and  which  dangers  were  the  cause  of  his  death.    Robbins 
V.  Legg,  80  Minn.  419,  83  N.  W.  379.     Such  is  not  the  question  here 
presented.     The  examination  of  the  witness  upon  this  subject  clearly 
indicated  to  the  court  below  that  the  warning,  if  any  was  given,  was 
the  result  of.  a  conversation  with  decedent.     The  witness,  on  the  oc- 
casions when  the  subject  was  under  inquiry,  was  asked  whether  he 
had  a  conversation  or  talk  with  decedent,  and,  upon  an  affirmative  an- 
swer being  given,  finally  made  the  offer  to  show  the  warning;    and 
J  though  at  one  point  in  the  examination  of  the  witness  counsel  stated 
'  that  he  did  not  intend  to  show  a  conversation,  it  is  clear  that  the 
"warning"  was  in  fact  a  part  of  a  conversation  and  was  properly  ex- 
,  eluded.     *     *     * 
Order  affirmed.*" 

48Accord:  Albers  Com.  Co.  v.  Sessel,  193  111.  153,  61  N.  E.  1075  (1001); 
Croniii  v.  Supreme  Comieil  Royal  League,  199  111.  228,  65  N.  E.  323,  93  Am 
St.  Rep.  127  (1902),  member  of  a  mutual  benefit  society. 

Compare  Talbot  v.  Laubheim,  188  N.  Y.  421,  81  N.  E.  163  (1907),  where  the 
remote  interest  of  a  corporation  not  a  party  did  not  disciualify  an  officer  of 
such  corporation. 


Sec.  1)  COMPETENCY  173 

■  MERRIMAN  v.  WICKERSHAM. 
(Supreme  Court  of  Califoruia,  1904.     141  Cal.  567,  75  Pac.  180.) 

Henshaw,  J."*®  Plaintiff  is  the  assignee  of  the  Burnham  &  Marsh 
Company,  a  corporation,  real  estate  brokers.  The  action  is  for  com- 
missions due  upon  an  alleged  sale  for  F,  A.  Wickersham.  Suit  was 
commenced  against  Wickersham  in  his  lifetime.  He  suffered  default. 
Plaintiff  afterwards  consented  that  his  default  might  be  set  aside. 

His   death    following,   his    executrix   was    substituted   as    defendant. 
*    *    * 

The  Burnham  &  Marsh  Company  is  a  corporation.  Mr.  Marsh,  vice 
president  and  one  of  its  principal  stockholders,  was  allowed  to  testify 
to  matters  and  facts  in  issue.  It  is  contended  that  the  evidence  was 
improperly  admitted,  in  violation  of  section  1880  of  the  Code  of  Civil 
Procedure,  which  provides  that  "the  following  persons  cannot  be  wit- 
nesses :  *  *  *  Parties,  or  assignors  ^^  of  parties  to  an  action  or 
proceeding,  or  persons  in  whose  behalf  an  action  or  proceeding  is  pros- 
ecuted, against  an  executor  or  administrator,  upon  a  claim  or  demand 
against  the  estate  of  a  deceased  person,  as  to  any  matter  of  f^ct  occur- 
ring before  the  death  of  such  deceased  person."  At  common  law  in- 
terest disqualified  any  person  from  being  a  witness.  That  rule  has 
been  modified  by  statute.  In  this  state  interest  is  no  longer  a  dis- 
qualification, and  the  disqualifications  are  only  such  as  the  law  imposes. 
Code  Civ.  Proc.  §  1879. 

An  examination  of  the  authorities  from  other  states  will  disclose 
that  their  decisions  rest  upon  the  wordings  of  their  statutes,  but  that 
generally,  where  interest  in  the  litigation  or  its  outcome  has  ceased 
to  disqualify,  officers  and  directors  of  corporations  are  not  considered 
to  be  parties  within  the  meaning  of  the  law.  In  example,  the  statute 
of  Maryland  (Pub.  Gen.  Laws,  art.  35,  §  2)  limits  the  disability  to  the 
"party"  to  a  cause  of  action  or  contract,  and  it  is  held  that  a  salesman 
of  a  corporation,  who  is  also  a  director  and  stockholder,  is  not  a  party, 
within  the  meaning  of  the  law,  so  as  to  be  incompetent  to  testify  in 
an  action  by  the  company  against  the  other  party,  who  is  insane  or 
dead.  Flach  v.  Gottschalk  Co.,  88  Md.  368,  41  Atl.  908,  42  L.  R.  A. 
745,  71  Am.  St.  Rep.  418. 

To  the  contrary,  the  Michigan  law  expressly  forbids  "any  officer  or 
agent  of  a  corporation"  to  testify  at  all  in  relation  to  matters  which, 
if  true,  must  have  been  equally  within  the  knowledge  of  such  deceased 
person.  Howell's  Ann.  St.  Mich.  §  7545.  The  Supreme  Court  of 
Michigan,  in  refusing  to  extend  the  rule  to  agents  of  partnerships, 
said:     "It  is  conceded  that  this  testimony  does  not  come  directly  with- 

*8  Parts  of  opinion  omitted. 

50  As  to  tlie  compt'toncv  of  an  assisinor  when  not  expressly  disqualified  by 
statute,  see  Clendennin  \.  Clancy,  82  N.  J.  Law,  418,  81  Atl.  750,  42  L.  K.  A. 
(N.  S.)  315  (1911),  where  the  cases  are  collected. 


174  WITNESSES  (Ch.  2 

in  the  wording  of  the  statute,  but  it  is  said  there  is  the  same  reason 
for  holding  the  agent  of  a  partnership  disqualified  from  testifying  that 
there  is  in  holding  the  agent  of  a  corporation.  This  is  an  argument 
which  should  be  directed  to  the  legislative  rather  than  to  the  judicial 
department  of  government.  *  *  *  The  inhibition  has  been  put  upon 
agents  of  corporations,  and  has  not  been  put  upon  agents  of  partner- 
ships. We  cannot,  by  construction,  put  into  the  statute  what  the  Leg- 
islature has  not  seen  fit  to  put  into  it."  Demary  v.  Burtenshaws'  Es- 
tate, 131  Mich.  329,  91  N.  W.  648. 

In  New  York  the  statute  provides  that  against  the  executor,  ad- 
ministrator, etc.,  "no  party  or  person  interested  in  the  event,  or  person 
from,  through,  or  under  whom  such  party  or  interested  person  de- 
rives his  interest  or  title  shall  be  examined  as  a  witness  in  his  own  be- 
half or  interest."  This  is  followed  by  the  exception  that  a  person  shall 
not  be  deemed  interested  by  reason  of  being  a  stockholder  or  officer 
of  any  banking  corporation  which  is  a  party  to  the  action  or  proceed- 
ing or  interested  in  the  event  thereof.  Ann.  Code  Civ.  Proc.  N.  Y.  § 
829.  Here  it  is  apparent  that  the  interest  of  the  witness  is  made  a 
disqualification,  and  it  is  of  course  held  that  stockholders  and  officers 
of  corporations  other  than  banking  corporations  are  under  disqualifi- 
cation.    Keller  v.  West  Bradley  Mfg.  Co.,  39  Hun  (N.  Y.)  348. 

To  like  effect  is  the  statute  of  Illinois,  which  declares  that  no  party 
to  any  civil  action,  suit,  or  proceeding,  or  person  directly  interested  in 
the  event  thereof,  shall  be  allowed  to  testify  under  the  given  circum- 
stances. Under  this  statute  it  is  held  that  stockholders  are  interested, 
within  the  meaning  of  the  section,  and  are  incompetent  to  testify 
against  the  representatives  of  the  deceased  party.  Albers  Commis- 
sion Co.  V.  Sessel,  193  111.  153,  61  N.  E.  1075.  The  law  of  Missouri 
disqualifies  "parties  to  the  contract  or  cause  of  action,"  and  it  is  held 
that  a  stockholder,  even  though  an  officer  of  the  bank,  is  not  disqual- 
ified by  reason  of  his  relation  to  the  corporation  when  he  is  not  ac- 
tually one  of  the  parties  to  the  making  of  the  contract  in  the  interest 
of  the  bank. 

Our  own  statute,  it  will  be  observed,  is  broader  than  any  of  these. 
It  neither  disqualifies  parties  to  a  contract  nor  persons  in  interest,  but 
only  parties  to  the  action  (Code  Civ.  Proc.  §§  1879,  1880) ;  and  thus 
it  is  that  in  City  Savings  Bank  v.'  Enos,  135  Cal.  167,  67  Pac.  52,  it 
has  been  held  that  one  who  is  cashier  and  at  the  same  time  a  stock- 
holder of  a  bank  w^as  not  disqualified,  it  being  said:  "To  hold  that 
the  statute  disqualifies  all  persons  from  testifying  who  are  officers  or 
stockholders  of  a  corporation  would  be  equivalent  to  materially  amend- 
ing the  statute  by  judicial  interpretation."  It  is  concluded,  therefore, 
that  our  statute  does  not  exclude  from  testifying  a  stockholder  of  a 
corporation,  whether  he  be  but  a  stockholder,  or  whether,  in  addi- 
tion thereto,  he  be  a  director  or  officer  thereof. 

The  examination  of  the  witness  Page  undoubtedly  discloses  that  he 
had  an  interest  in  the  outcome  of  the  litigation,  but  that  fact  did  no* 


Sec.  1)  COMPETENCY  175 

bring  his  testimony  within  the  inhibition  of  the  law.  It  was  not  es- 
tabhshed  that  he  was  a  person  "in  whose  behalf  the  action  was  pros- 
ecuted," and  his  testimony  was  therefore  properly  admitted. 

For  the  foregoing  reasons,  the  judgment  and  order  appealed  from 
are  affirmed. 

We  concur:     McFarland,  J. ;  Lorigan,  J. 


^VHITHED  V.  WOOD  et  al 
(Supreme  Judicial  Court  of  Massachusetts,  1S70.     103  Mass.  563.) 

Contract  on  a  prom.issory  note  made  by  James  M.  Wood,  one  of  the 
defendants,  under  date  of  July  25,  1866,  for  $400  payable,  with  in- 
terest, four  months  from  date,  to  Henry  W.  Dresser,  the  other  de- 
fendant, or  his  order,  and  indorsed  in  blank  by  Dresser.  Writ  dated 
March  15,  1867.  Trial,  and  verdict  for  the  plaintiff,  in  the  superior 
court,  before  Rockwell,  J.,  who  allowed  a  bill  of  exceptions  of  which 
the  following  is  the  material  part: 

"Dresser  did  not  defend  the  action,  but  was  defaulted  at  the  first 
term,  and  died  after  said  first  term  and  before  the  trial.  Wood  de- 
fended the  action,  and,  being  a  witness  at  the  trial,  called  by  his  coun- 
sel, admitted  that  the  signature  to  the  note  was  his,  but  offered  to 
prove,  by  his  own  testimony,  that  tlie  words,  'with  interest,'  were 
added  to  the  note  by  Dresser  after  it  was  signed  and  delivered  to  Dres- 
ser and  without  the  consent  or  knowledge  of  Wood,  and  that  the  note 
including  the  words  so  added  v/as  in  the  liandwriting  of  Dresser.  To 
this  testimony  the  plaintiff's  counsel  objected,  and  the  judge  excluded 
the  evidence  and  refused  to  admit  tlie  testimony  thus  offered,  and  to 
these  rulings  "Wood  excepted." 

Gray,  J.  The  contract  in  issue  and  on  trial  was  a  promissory  note 
made  by  Wood  to  Dresser,  and  by  him  indorsed  to  the  plaintiff.  Dres- 
ser, one  of  the  original  parties  to  that  contract,  was  dead,  and  Wood, 
the  other  party,  was  therefore  rightly  not  permitted  to  testify  in  his 
own  favor.  Gen.  St.  1860,  c.  131,  §  14;=^  Byrne  v.  McDonald,  1 
Allen,  293. 

61  Section  14,  c.  131,  Gen.  St.  Mass.  1S60:  "Parties  in  civil  actions  and  pro- 
ceedings, including  probate  and  insolvency  proceeding.s,  suits  in  equity,  and 
divorce  suits,  (except  those  in  which  a  divorce  is  sought  on  the  ground  of 
alleged  adultery  of  either  party,)  shall  be  admitted  as  competent  witnesses 
for  themselves  or  any  other  party ;  and  in  any  such  case  in  which  the  wife 
is  a  party  or  one  of  the  parties,  she  and  her  husband  shall  be  competent 
witnesses  for  and  against  each  other,  but  they  shall  not  be  allowed  to  tes- 
tify as  to  private  conversations  with  each"  other:  provided,  that  where  one 
of  the  original  parties  to  the  contract  or  cause  of  action  in  issue  and  on 
trial  is  dead,  or  is  shown  to  the  court  to  be  insane,  the  other  party  shall  not 
be  admitted  to  testify  in  his  own  favor;  and  where  an  executor  or  admin- 
istrator is  a  party,  the  other  party  s^hall  not  be  admitted  to  testify  in  his 
own  favor,  unless  the  contract  in  issue  was  originally  made  with  a  person 
who  is  living  and  competent  to  testily,  exccpL  as  lu  sucli  acts  and  couiruct-s 


176  WITNESSES  (Ch.  2 

The  bill  of  exceptions  does  not  show  any  waiver  of  the  objection 
to  his  competency ;  for  it  is  at  least  ambiguous  upon  the  point  whether 
his  admission  of  his  signature  was  not  made  as  party  and  not  as  wit- 
ness, and  the  objection  taken  before  he  had  begun  to  testify. 

Exceptions  overruled. 


BANKING  HOUSE  OF  WILCOXSON  &  CO.  v.  ROOD. 

(Supreme  Court  of  Missouri,  1S96.     132  Mo.  256,  33  S.  W.  S16.) 

MacFarlanE,  J.''*  Plaintiff,  a  banking  corporation,  presented  to 
the  probate  court  for  allowance  against  the  estate  of  N.  P.  Rood, 
deceased,  a  note  for  $515.  On  appeal  to  the  circuit  court,  plaintiff 
recovered  judgment,  and  defendant  appealed.  On  the  trial,  James  M. 
Wilcoxson  and  Harrison  Wilcoxson,  both  stockholders  in  the  bank, — 
the  former  its  cashier,  and  the  latter  its  president, — were  permitted  to 
testify  as  witnesses.  Defendant  objected  to  their  competency,  on  the 
ground  that  they  were  both  interested  in  the  result  of  the  suit,  and 
Rood,  the  other  party  to  the  note,  was  dead.  These  witnesses  testi- 
fied that  the  name  signed  on  the  note  was  the  proper  signature  of  de- 
ceased, and  also  that  they  saw  him  write  it.  In  the  opinion  of  the 
Kansas  City  court  of  appeals,  to  which  the  appeal  was  first  taken,  these 
witnesses  were  incompetent  to  testify  to  any  fact,  on  account  of  their 
interest;  but  one  of  the  judges  being  of  the  opinion  that  the  decision 
is  in  conflict  with  the  decision  in  the  case  of  Bates  v.  Forcht,  89  Mo. 
121,  1  S.  W.  120,  the  appeal  was  certified  to  this  court. 

There  can  be  no  doubt  that  these  witnesses  would  have  been  incom- 
petent under  the  general  rule  at  common  law.  The  rule  is  correctly 
given  in  the  opinion  of  the  court  of  appeals,  which  is  sustained  by  the 
authorities  therein  cited.  *  *  *  A  class  of  cases  excepted  out  of 
the  general  rule,  on  the  ground  of  convenience  and  necessity,  "is  that 
of  agents,  carriers,  factors,  brokers,  and  other  servants,  when  offered 
to  prove  the  making  of  contracts,  the  receipt  or  payment  of  money, 
the  receipt  or  delivery  of  goods,  and  other  acts  done  in  the  scope  of 
their  employment."  1  Greenl.  Ev.  §  416.  Under  this  exception,  the 
opinion  in  the  Bates  Case,  supra,  includes  a  cashier  and  teller  of  a 
bank,  and  holds  that  at  common  law  they  were  competent  witnesses 
"to  charge  the  defendant  on  a  promissory  note,  or  for  money  lent  or 
unpaid,  or  obtained  from  the  officer  without  the  security  he  should 
have  received."  It  is  questionable,  as  seen,  whether  the  exemption 
would  apply  at  common  law  in  case  the  cashier  was  also  a  stockholder 
in  the  corporation,  and  directly  interested  in  the  result  of  the  Iftiga- 

as  have  been  done  or  made  since  the  probate  of  the  will,  or  the  appoint- 
ment of  the  administrator." 

The  proviso  in  this  statute  appears  to  have  served  as  a  model  for  several 
of  the  Western  states;    e.  g.,  Rev.  St.  Mo.  1009,  §  6354. 

6  2  Part  of  opinion  omitted. 


Sec.  1)  COMPETENCY  177 

tion.  "But,"  says  the  court,  "whatever  the  rule  at  common  law  as  fo 
the  interest  of  a  witness  disqualifying  him,  it  is  superseded  by  section 
4010,  Rev.  St.  1879  (now  section  8918,  Rev.  St.  1889),  which  declares 
that  no  person  shall  be  disqualified  as  a  witness  by  reason  of  his  in- 
terest in  the  event  of  the  suit,  as  a  party  or  otherwise.  The  rejected 
evidence  was  clearly  competent  under  our  statute,  if  not  under  the 
rule  at  common  law."  As  the  witness  in  the  Bates  Case  was  not  only 
the  cashier  of  the  bank,  but  also  a  stockholder  therein,  it  is  clear  that 
the  opinion  of  the  court  o£  appeals  is  directly  in  conflict  with  that  de- 
cision. 

But  counsel  challenge  the  correctness  of  the  decision  in  Bates  v. 
Forcht,  and  claim  that  it  is  not  consistent  with  subsequent  decisions 
of  this  court.  The  statute  declares  that  no  person  shall  be  disqualified 
as  a  witness  in  any  civil  suit  by  reason  of  his  interest  in  the  event  of 
the  same,  as  a  party  or  otherwise :  "provided,  that  in  actions  where 
one  of  the  original  parties  to  the  contract  or  cause  of  action  in  issue 
and  on  trial  is  dead  *  *  *  ^-j^g  other  party  to  such  contract  or 
cause  of  action  shall  not  be  admitted  to  testify."  This  court  has  ever 
undertaken  to  conform  its  decisions  to  the  spirit,  ratlier  than  to  the 
strict  letter,  of  this  statute.  Orr  v.  Rode,  101  Mo.  398,  13  S.  W.  1066. 
The  primary  object  and  purpose  of  the  law,  evidently,  was  to  remove 
the  disabilities  by  which  parties  to  the  record  and  parties  interested 
were  at  common  law  rendered  incompetent  to  testify.  The  exception 
was  intended  to  prevent  the  injustice  that  would  arise  in  permitting 
one  party  to  the  contract  or  cause  of  action  to  testify  when  the  lips  of 
the  other  are  sealed  in  death.  This  equitable  construction  has  been 
applied  in  a  variety  of  cases.  Stanton  v.  Ryan,  41  j\Io.  510;  Williams 
V.  Edwards,  94  Mo.  447,  7  S.  W.  429;  Orr  v.  Rode,  supra;  Leach 
V.  McFadden,  110  Mo.  587,  19  S.  W.  947;  Bank  v.  Payne,  HI  Mo. 
296,  20  S.  W.  41 ;  Miller  v.  Wilson,  126  Mo.  54,  28  S.  W.  640. 

It  will  be  observed  that  the  proviso  does  not  exclude  the  testimony 
of  one  party  in  interest  when  the  other  party  in  interest  is  dead,  but 
confines  the  exclusion  to  a  party  to  the  contract  or  cause  of  action, 
while  the  body  of  the  statute  removes  the  disability  of  a  person  caused 
by  his  interest  in  the  suit.  The  exclusion  of  the  proviso  is  not  as 
broad  as  the  inclusion  of  the  body  of  the  act.  Hence  an  examination 
of  the  cases  will  show  that  a  "party  to  the  contract"  has  been  con- 
strued to  mean  the  person  who  negotiated  ^^  the  contract,  rather  than 

B3  For  the  contrary  view,  that  the  negotiating  agent  of  a  corporation  Is 
not  a  party  to  the  contract  within  the  meaning  of  the  statute,  see  Flach  v. 
Gottschalk  Co.,  88  Md.  368,  41  Atl.  908,  42  K  R.  A.  745,  71  Am.  St.  Rep.  418 
(1898). 

In  Missouri  the  negotiating  agent  of  a  natural  person  is  not  disqualified  bv 
the  death  of  the  other  party.    Clark  v.  Thias,  173  Mo.  628,  73  S.  W.  616  (1903). 

The  death  of  the  negotiating  agent,  however,  disqualifies  the  adverst' 
party  as  to  transactions  between  them.     Wendover  v.  Baker,  121  Mo.  273. 

HiNT.Ev.— 12 


1'''^'^  WITNESSES  (Ch.  2 

the  person  in  whose  name  and  interest  it  was  made.  Thus,  though 
one  party  in  interest  be  dead,  the  other  party  will  be  a  competent  wit- 
ness, if  the  contract  in  issue  was  negotiated  by  an  agent  of  deceased 
who  is  living  at  the  time  of  the  trial.  Miller  v.  Wilson,  supra.  If  both 
parties  to  a  contract  be  living,  one  of  them  will  not  be  permitted  to 
testify,  if  the  agent  who  acted  for  the  other  is  dead.  Williams  v. 
Edwards,  supra.  If  one  member  of  a  partnership  be  dead,  the  other 
party  to  a  partnership  contract  would  only  be  excluded  from  testifying 
to  transactions  with  the  deceased  partner.  Stanton  v.  Ryan,  supra.  A 
principal  in  a  boncj,  though  not  a  party  to  fhe  suit  against  his  sureties, 
is  not  a  competent  witness  to  prove  payments  to  an  agent  of  plaintiff 
who  is  dead.  Leach  v.  McFadden,  110  Mo.  588,  19  S.  W.  947.  It 
will  be  seen  from  these  decisions  that  the  statements  or  dicta  found 
in  some  of  the  decisions,  that  when  one  party  to  a  contract  or  cause  of 
action  is  dead  the  common  law  is  in  full  force  as  to  the  competency 
of  the  survivor  as  a  witness  in  his  own  behalf,  is  not  strictly  correct 
under  all  circumstances.  His  interest  does  not  exclude  him  as  at 
common  law.  He  is  excluded  because  he  and  deceased  are  both  par- 
ties to  the  contract  or  cause  of  action. 

The  declaration  in  the  Bates  Case,  therefore,  that  no  person  is  dis- 
qualified as  a  witness  by  reason  of  his  interest  in  the  event  of  the 
suit,  under  the  construction  given  the  statute  by  this  court,  is  not  open 
to  the  criticism  counsel  makes  against  it.  The  witnesses  in  that  case 
testified  that  the  name  written  upon  the  note  was  the  signature  of  de- 
ceased. The  testimony  was  to  an  independent  fact,  which  was  in  no 
manner  connected  with  the  transaction  upon  which  the  attempt  was 
made  to  charge  the  firm  of  which  deceased  was  a  member.  In  a  case 
somewhat  analogous,  this  court,  speaking  through  Brace,  J.,  said: 
"They  [the  witnesses  who  were  interested  in  the  suit]  were  permitted 
to  testify  merely  to  a  physical  fact,  the  existence'  of  which  was  inde- 
pendent of  any  and  all  contracts  between  the  parties, — a  fact  not  pe- 
culiarly within  the  knowledge  of  the  defendants  and  any  agent  of  the 
bank,  arising  from  a  transaction  between  them  and  such  agent,  but 
of  which  they  obtained  cognizance  by  their  sense  of  sight,  and  which 
was  open  to  the  cognizance  of  any  other  witness  to  whom  an  oppor- 
tunity was  afforded,  at  the  time,  of  inspecting  the  note  in  suit,  and 
concerning  which  one  of  the  plaintiff's  officers,  who  had  such  oppor- 
tunity, testified,  and  but  for  whose  evidence  as  to  such  fact  the  plain- 

25  S.  W.  918  (ISOi).  Likewise  the  deatli  of  the  negotiating  agent  disqnali- 
lies  the  sui-viving  agent  of  a  corporation  as  to  transactions  between  them. 
Ham  &  Ham  Lead  &  Zinc  Inv.  Co.  v.  Catherine  Lead  Co.,  251  Mo.  721,  158  S. 
W.  yC9  (1913). 

In  actions  for  death,  the  statute  is  not  construed  as  disqualifying  the 
survivor.  Entwhistle  v.  Feighner,  60  Mo.  214  (1875).  But  the  death  of  a 
servant  for  whose  tort  the  master  is  sued  disqualifies  the  plaintiff.  Leavea 
V.  Southern  Ry.  Co.,  2GG  Mo.  151,  181  S.  W.  7,  L.  K.  A.  191UD,  810,  Ann. 
Cas.  1918B,  97  (1915). 


Sec.  1)  COMPETENCY  179 

tiff  would  liave  made  out  no  case  against  the  defendant."     Bank  v. 
Fiyne,  supra. 

Our  conclusion,  therefore,  is  that  the  stockholders  of  a  corporation 
are  not  incompetent,  on  account  of  interest,  to  testify  as  witnesses  in 
a  case  involving  a  contract  with  the  corporation,  though  the  other 
party  to  the  contract  be  at  the  time  dead.  His  competency  depends  up- 
on the  character  of  the  evidence  offered.  He  will  be  incompetent  to 
testify  in  regard  to  transa'ctions  and  negotiations  between  himself,  as 
agent  of  the  corporation,  and  deceased.  In  regard  to  independent 
facts,  he  will  be  competent.  It  follows  that  the  witnesses  were  compe- 
tent to  testify  to  the  genuineness  of  the  signature,  from  their  knowl- 
edge of  it  or  as  experts.  Whether  they  were  competent  to  testify  that 
they  saw  deceased  sign  the  note,  would  depend  upon  circumstances. 
Signing  the  note  by  deceased  was  a  part  of  the  transaction  which  re- 
sulted in  the  contract  in  issue,  and  the  agent  of  the  corporation  who 
conducted  the  negotiations,  whether  a  stockholder  or  not,  could  no 
more  testify  to  that  fact  than  to  any  other  fact  connected  with  the 
negotiation.  It  does  not  expressly  appear  with  which  officer  of  the 
bank  deceased  dealt,  in  making  the  contract  which  is  the  basis  of  this 
suit.  The  circumstances  are  sufficient  to  admit  of  the  inference  that 
it  was  with  the  cashier.  This  witness  only  testified  in  chief  that  the 
name  written  on  the  note  was  the  signature  of  deceased.  The  court 
refused  to  permit  him  to  testify  that  the  note  was  a  renewal  of  one 
then  held  by  the  bank.  The  evidence  of  the  witness  that  he  saw 
deceased  sign  the  note  was  called  out  by  a  direct  question  put  to  him 
on  cross-examination.  Defendant  is  not  in  a  situation  to  complain 
of  the  answer  he  himself  invoked.  Especially  is  this  so  as  no  excep- 
tion was  taken  to  the  answer.  It  does  not  appear  what,  if  any,  part 
Harrison  Wilcoxson  took  in  the  negotiations  which  resulted  in  making 
the  note  in  suit.  He  was  an  officer  of  the  corporation,  and  was  pres- 
ent in  the  bank  at  the  time  his  testimony  tends  to  prove  the  note  was 
made.  Presumably,  he  had  power  to  make  the  contract.  His  compe- 
tency depends  upon  the  part  he  took  in  making  it.  As  the  trial  court 
held  him  competent  for  all  purposes,  prejudicial  error  may  have  been 
committed. 

We  think,  therefore,  that  the  case  should  be  retried,  in  accordance 
with  the  views  herein  expressed.  The  judgment  of  the  circuit  court 
is  reversed,  and  the  cause  remanded. 


180  WITNESSES  (Ch.  2 

HURLBUT  V.  MEEKER. 

(Supreme  Court  of  Illinois,  1882.     104  111.  541.) 

Craig,  J.'*  This  was  an  action  brought  by  Samuel  E.  Hurlbut, 
for  the  use  of  Eben  Higgins,  against  Elizabeth  Meeker,  executrix  of 
the  estate  of  Joseph  Meeker,  deceased,  to  recover  the  amount  due  on 
a  promissory  note  executed  June  23,  1865,  by  Hurlbut  Bros.  &  Co., 
payable  to  the  order  of  S.  E.  Hurlbut,  amount  $405.40,  due  on  demand, 
after  date.  It  was  claimed  by  the  plaintiff  that  Joseph  Meeker  was  a 
member  of  the  firm  of  Hurlbut  Bros.  &  Co.  at  the  time  the  note  was 
executed,  and  hence  his  liability  as  one  of  the  makers  of  the  instru- 
ment. On  the  trial  of  the  cause  in  the  circuit  court,  before  a  jury, 
a  judgment  was  rendered  in  favor  of  the  defendant.  This  judg- 
ment, on  appeal,  was  affirmed  in  the  Appellate  Court. 

As  to  the  controverted  questions  of  fact  involved  on  the  trial  in 
the  circuit  court  we  have  no  concern.  The  affirmance  of  the  judg- 
ment of  the  circuit  court  by  the  Appellate  Court  was  a  final  settle- 
ment of  these  matters  in  favor  of  the  defendant,  which  cannot  be 
reviewed  here. 

On  the  trial  of  the  cause  in  the  circuit  court,  appellant  called  J.  B. 
Hurlbut  as  a  witness,  and  also  offered  the  deposition  of  D.  N.  Hurl- 
but as  evidence.  The  offered  evidence  having  been  objected  to,  on 
the  ground  that  the  two  witnesses  were  both  members  of  the  firm  of 
Hurlbut  Bros.  &  Co.,  "and  hence  interested  in  the  result  of  the  suit, 
the  court  sustained  the  objection,  and  refused  to  allow  the  witness  to 
testify  or  the  deposition  to  be  read  to  the  jury,  and  this  decision  is 
assigned  as  error.  Under  section  2,  chapter  51,  Rev.  Stat.  1874,  a 
party  to  a  civil  action,  or  person  directly  interested  in  the  event  there- 
of, is  not  a  competent  witness  where  the  adverse  party  sues  or  defends 
as  executor,  administrator,  heir,  legatee  or  devisee  of  any  deceased 
person,  with  certain  specified  exceptions  named  in  the  act,  in  none  of 
which  does  the  present  case  fall.  Under  this  statute,  we  are  satisfied 
that  neither  J.  D.  Hurlbut  nor  D.  N.  Hurlbut  was  a  competent  witness 
for  the  plaintiff.  They  were  not  made  defendants  in  the  action,  but 
were  directly  interested  in  the  event  of  the  suit.  They  were  members 
of  the  firm  of  Hurlbut  Bros.  &  Co.  at  the  time  the  note  was  executed, 
and  were  makers  of  the  note  in  suit,  and  hence  had  a  direct  interest 
in  the  result  of  the  pending  action.  Eangley  v.  Dodsworth,  Ex'x, 
81  111.  86,  is  a  case  in  point,  and  the  same  principle  which  governed 
the  decision  of  that  case  must  control  here. 

It  is  also  said  the  witness  J.  B.  Hurlbut  was  called  by  defendant, 
and  examined  at  length  by  her,  and  plaintiff  was  deprived  of  the  right 
to  cross-examine  the  witness  by  the  court.  If  this  statement  was  cor- 
rect the  decision  of  the  court  would  clearly  be  erroneous;  but  an  ex- 

6*  Part  of  opinion  omitted. 


Sec.  1)  COMPETENCY  181 

amlnation  of  the  record  will  show  that  the  witness  was  called  by  the 
defendant  simply  to  prove  a  handwriting,  and  the  court  confined  the 

^ross-examination,  as  it  should  have  done,  to  the  examination  in  chief. 

(  \Vhen  a  witness  is  called  to  prove  a  single  fact,  the  opposite  party, 
under  the  guise  of  a  cross-examination,  can  not  enter  upon  a  gen- 
eral examination  of  the  witness,  but  the  cross-examination  must  be 
confined  to  the  examination  in  chief ij[  This  rule,  we  apprehend,  is 
well  established  by  the  authorities.     *     *     * 

As  no  substantial  error  appears  in  the  record,  the  judgment  will 
be  affirmed. 
Judgment  affirmed. 


SB 


CLIFT  v.  MOSES  et  al. 
(Court  of  Appeals  of  New  York,  1889.     112  N.  Y.  426,  20  N.  E.  392.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  entered  upon  an  order  made  April 
20,  1886,  which  affirmed  a  judgment  in  favor  of  plaintiff  entered  up- 
on a  verdict.     (Reported  below,  44  Hun,  312.) 

This  action  was  brought  by  plaintiff,  as  survivor  of  the  firm  of  C. 
Pardee  &  Co.,  upon  four  promissory  notes  made  by  the  firm  of  Dodge 
&  Moses,  composed  of  defendants.  Defendant  Moses,  who  alone  ap- 
peared and  answered,  among  other  things,  alleged  payment  of  the 
notes. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Andrews,  J."^®  *  *  *  'p|-,g  theory  of  the  defense,  therefore,  as 
developed  by  the  testimony  of  Mrs.  Moses,  was  that  the  notes  were 
paid  by  the  transfer  by  Moses  to  Pardee  of  his  interest  in  the  dredge 
property,  and  that  they  were  delivered  up  to  him  by  Pardee  in  consid- 
eration of  such  transfer.  The  defendant  Moses  was  called  as  a  wit- 
ness in  his  own  behalf,  immediately  after  the  conclusion  of  his  wife's 
testimony.  He  was  first  interrogated  directly  as  to  transactions  be- 
tween himself  and  Mr.  Pardee,  and  the  questions  were  excluded,  and 
the  correctness  of  those  rulings  is  not  now  assailed.  These  were  fol- 
lowed by  a  series  of  questions,  put  in  a  great  variety  of  forms,  of 

5  5  Accord:  Charlotte  Oil  &  Fertilizer  Qo.  v.  Rippy,  124  N.  C.  643,  32  S.  E. 
980  (1S99),  in  which  there  is  an  extended  discussion  of  the  interest  of  the 
witness  in  this  class  of  cases. 

The  bare  possibility  of  an  action  over  against  the  witness  is  not  suffi- 
cient to  disqualify.     Franklin  v.  Kidd,  219  N.   Y.  409,  114  N.  E.  839  (1916). 

The  modern  cases  do  not  appear  to  recognize  the  liability  of  a  servant  to 
his  master  as  sufficient  to  disqualify  hiin  as  a  witness  in  an  action  by  the 
representative  of  a  deceased  person  against  the  master  for  the  act  of  such 
servant.  Nearpass  v.  Gilman.  104  X.  Y.  506,  10  N.  E.  894  (1SS7) ;  Feitl  v.  Chi- 
cago City  Ry.  Co.,  211  111.  279,  71  N.  E.  991  (1904) ;  O'Toole  v.  Faulkner,  34 
Wash.  371,  75  Pac.  975  (1904).  But  in  such  cases,  if  the  servant  is  joined 
with  the  master,  he  is  disqualified  as  a  party.  Sullivan  v.  Corn  Products 
Refining  Co.,  245  111.  9,  91  N.  E.  643  (1910). 

t>«  Part  of  opinion  omitted. 


182  WITNESSES  (Ch.  2 

which  the  following  are  samples:  "Have  you  ever  had  the  notes  in 
suit  in  your  possession  ?"  "Did  you  see  the  notes  in  suit  in  November 
or  December,  1875?"  "Did  you  ever  see  the  notes  in  the  possession 
of  your  wife  when  Mr.  Pardee  was  not  present,  or  in  your  wife's 
hands  when  Mr.  Pardee  was  not  present?" 

The  questions  were  objected  to  as  inadmissible  under  section  829  of 
the  Code,  and  were  excluded,  and,  we  think,  properly.  The  plamtiff 
was  the  survivor  of  a  deceased  person  within  section  829.  Green  v. 
Edick,  56  N.  Y.  613.  The  defendant  Moses  could  not,  therefore,  be 
examined  as  a  witness  in  his  own  behalf  or  interest  "concerning  a 
personal  transaction  or  communication"  between  himself  and  Pardee, 
unless  the  plaintiff  had  been  examined  in  his  own  interest  "concerning 
the  same  transaction  or  communication."  Section  829.  The  primar}- 
question  is  whether  the  evidence  sought  to  be  elicited  by  the  questions 
put  to  Moses,  touching  the  possession  of  the  notes  prior  to  Pardee's 
death,  was  evidence*  concerning  a  personal  transaction  between  the 
witness  and  Pardee.  The  evidence  was  very  material  upon  the  issue 
of  payment.  If  the  notes  were  in  the  possession  of  Moses  prior  to 
Pardee's  death,  the  presumption  of  payment  would  be  very  strong, 
and  if  he  saw  them  in  the  possession  of  his  wife,  in  1875,  or  1876,  or 
subsequently  during  Pardee's  life-time,  it  would  be  a  strong  circum- 
stance in  corroboration  of  her  testimony. 

The  questions  do  not  on  their  face  call  for  a  disclosure  of  a  person- 
al transaction  of  the  witness  with  Pardee,  and  if  it  be  the  true  con- 
struction of  section  829,  that  a  party  may  be  a  witness  against  the 
representative  of  a  deceased  party  as  to  any  fact  which  is  not  a  narra- 
tive of  an  occurrence  between  the  witness  and  the  deceased,  or  if  any 
fact  may  be  proved  by  the  survivor  which  does  not  involve  on  its 
face  a  direct  statement  of  a  transaction  or  communication  between 
himself  and  the  deceased,  then  the  evidence  of  Moses  was  improperly 
excluded.  But  this  literal  construction  of  the  section  has  not  been 
adopted  by  the  courts.  It  has  been  held  with  general  uniformity  that 
the  section  prohibits,  not  only  direct  testimony  of  the  survivor  that  a 
personal  transaction  did  or  did  not  take  place,  and  what  did  or  did 
not  occur  between  the  parties,  but  also  every  attempt  by  indirection  to 
prove  the  same  thing,  as  by  negativing  .the  doing  of  a  particular  thing 
by  any  other  person  than  the  deceased,  or  by  disconnecting  a  particu- 
lar fact  from  its  surroundings,  and  testifying  to  what  on  its  face  may 
seem  an  independent  fact,  when  in  truth  it  had  its  origin  in,  or  direct- 
ly resulted  from,  a  personal  transaction.  It  may  be  too  broad  to  say 
that  where  the  uUimate  fact  cannot  be  proved  under  this  section  by  a 
witness,  he  cannot  testify  to  any  of  a  series  of  facts  from  which  the 
ultimate  fact  may  be  inferred ;  but  if  there  is  introduced  into  this 
statement  the  qualification  that  he  cannot  testify  as  to  any  of  the 
subsidiary  facts  which  originated  in  a  personal  transaction  with  the 
deceased,  or  which  proceeded  from  such  transaction  as  a  cause,  the 
statement  so  qualified  may  be  substantially  correct. 


Sec.  1)  COMPETENCY  •  1S3 

• 

Reference  to  a  few  of  the  decided  cases  will  illustrate  the  general 
rule  of  construction  to  which  we  have  adverted.  In  Grey  v.  Grey, 
supra  [47  N.  Y.  552],  the  action  was  by  an  administrator  on  a  note 
made  by  the  son  of  the  intestate,  the  defendant  in  the  action.  The 
note  was  in  possession  of  the  son,  who  claimed  that  it  had  been  de- 
livered to  him  by  his  father  before  his  death,  and  he  was  permitted  to 
prove  this  by  his  own  testimony,  under  objection,  and  also  to  testify 
that  he  received  it  from  no  one  else.  The  court  held  that  the  objection 
was  well  taken,  Peckham,  J,,  saying:  "The  witness  was  incompetent 
to  testify  that  he  received  it  from  his  father.  If  he  could  not  testify 
to  that  directly,  he  was  equally  incompetent  to  prove  it  indirectly  by 
stating  in  substance  that  he  received  it  from  no  one  else."  In  Koeh- 
ler  V.  Adler,  91  N.  Y.  657,  the  question  was  whether  a  check  given  by 
the  plaintiff  to  the  defendant's  intestate  was  a  personal  transaction  be- 
tween them,  or  a  transaction  in  which  the  plaintiff  acted  for  the  Stone- 
wall Oil  Company.  The  plaintiff  offered  himself  as  a  witness  on  the 
trial,  and  was  asked  by  his  counsel  whether  the  check  had  an^^thing 
to  do  with  the  affairs  of  the  oil  company.  The  question  was  objected 
to  under  section  839,  and  excluded.  This  court  sustained  the  ruling 
on  the  ground  that  it  was  an  indirect  attempt  to  show  that  the  check 
was  a  personal  transaction  between  the  plaintiff'  and  the.  intestate. 

To  permit  Moses  to  testify  to  his  possession  of  the  notes  prior  to 
Pardee's  death,  or  that  he  saw  them  in  his  wife's  hands,  was  equiva- 
lent, under  the  circumstances,  to  permitting  him  to  testify  that  he  re- 
ceived the  notes  from  Pardee,  and,  as  he  could  not  be  permitted  to 
testify  directly  to  that  fact,  he  was  equally  incompetent  to  testify  to 
a  possession  which  was  the  inseparable  incident  and  result  of  a  per- 
sonal transaction.  The  statute  cannot  be  evaded  by  framing  a  ques- 
tion which  on  its  face  relates  to  an  independent  fact,  when  it  is  dis- 
closed by  other  evidence  that  the  fact  had  its  origin  in,  and  directly 
resulted  from,  a  personal  transaction.     *     *     * 

Affirmed." 

B7  Compare  Pinney  v.  Orth,  88  N.  Y.  451  (1882),  that  a  survivor  might  testify 
that  a  third  person  was  not  present.  For  a  collection  of  the  cases,  see 
Blount  V.  Blount,  158  Ala.  242,  48  South.  581,  21  L.  R.  A.  (N.  S.)  755,  17 
Ann.  Cas.  392    (1909). 

See  Grlswold  v.  Hart.  205  N.  Y.  384,  98  N.  E.  918,  42  L.  R.  A.  (N.  S.)  320, 
Ann.  Cas.  1913E,  790  (1912),  that  a  survivor  cannot  testify  to  a  conversation 
by  the  deceased,  though  witness  took  no  part  in  it.  For  a  collection  of  cases 
on  this  latter  point,  see  notes  to  Griswold  v.  Hart,  42  L.  R.  A.  (N.  S.)  320 
(1912),  and  Wall  v.  Wall.  45  L.  R.  A.  (N.  S.)  583  (1913).  See,  also,  Helbig 
V.  Citizens'  Ins.  Co..  234  111.  251,  84  N.  E.  897  (1908). 


184  WITNESSES  (Ch.  2 


rv.  Marital  Re;lationship  '* 

MARY  GRIGGS'  CASE. 
(Court  of  King's   Bench,   1660.    T.   Raym.  1.) 

Mary  Griggs  was  indicted  upon  the  statute  of  1  Jac.  1,  cap.  11,  for 
that  she  the  28th  of  February,  1653,  was  married  to  one  Nicholas 
Coats,  and  that  she  afterwards,  viz.  the  10th  of  October,  1659,  the  first 
husband  being  then  alive,  married  Edward  Cage,  &c.  Upon  not  guilty 
pleaded,  the  first  husband  was  produced  at  the  trial  as  a  witness  to 
prove  the  first  marriage ;  but  the  Court  totally  refused  to  admit  of  his 
testimony,  and  said,  that  a  wife  could  not  be  admitted  to  give  evidence 
against  her  husband,  nor  the  husband  against  his  wife  in  any  case, 
excepting  treason,  because  it  might  occasion  implacable  dissention, 
according  to  1  Inst.  6  b.  And  they  denied  the  Lord  Audley's  Case  in 
Hutton,  116,  to  be  law;  so  the  prosecutor  having  no  other  consider- 
able witness,  the  jury  brought  in  the  prisoner  not  guilty. 


ANONYMOUS. 
(Court  of  Queen's  Bench,  1710.     11  Mod.  224.) 

In  an  action  of  assault  and  battery  brought  by  the  husband  against 
the  defendant  for  an  intent  to  ravish  his  wife,  she  was  admitted  a 
witness. 

Holt,  Chief  Justice,  said,  it  was  because  the  wife  cannot  give  any 
consent,  though  it  be  not  felony. 

Holt,  Chief  Justice,  held,  that  A.  having  laid  five  pounds  on  the 
event  of  the  cause,  was  no  objection  to  the  wife  of  A.  being  admitted 
to  be  a  witness,  because  it  shall  not  be  in  the  power  of  a  third  person 
to  disqualify  one  who  otherwise  would  be  a  good  witness ; 

And  thereupon  she  was  admitted  to  give  evidence.^** 

6  8  The  rule  disqualifying  one  spouse  from  testifying  against  the  other  is 
based  on  an  entirely  different  policy  from  that  which  excludes  the  one  as 
a  witness  for  the  other.  The  latter  rule  is  based  on  much  the  same  notions 
as  those  excluding  a  party  or  intei-ested  witness  from  testifying  in  his  own 
favor,  that  is,  a  bias  rendering  the  testimony  untrustworthy. 

The  exclusion  of  one  spouse  from  testifying  against  the  other  is  based  on 
a  theory  of  preserving  marital  harmony  and  confidence,  and  so  blends  into 
the  privilege  for  certain  communications  between  husband  and  wife. 

The  questions  of  incompetency  and  of  privilege  growing  out  of  the  mari- 
tal relation  are  so  closely  connected  that  it  appeared  advisable  to  treat 
them  together. — Editor. 

0  8  There  are  a  few  other  instances  where  the  wife  has  been  admitted  on 
the  ground  of  necessity;  e.  g.,  to  prove  the  contents  of  a  lost  trunk.  Il- 
linois Cent.  Ry.  Co.  v.  Taylor,  24  111.  323  (1860).  Under  modern  statutes 
the  wife  is  frequently  made  competent  to  testify  to  transactions  carried  on 
by  her  as  agent  for  the  husband. 


Sec.  1)  COMPETENCY  185 

1 

REX  V.  AZIRE. 
(Court  of  King's  Bench,  1725.     1  Strango,  633.) 

On  indictment  against  the  husband  for  an  assault  upon  the  wife, 
the  Chief  Justice  allowed  her  to  be  a  good  witness  for  the  King,  and 
cited   Lord  Audley's  Case,  State  Trials,  vol.  1.°** 


WILLIAMS  V.  JOHNSON. 

(msi  Prius,  1722.    1  Strange,  504.) 

The  plaintiff  brought  this  action  against  the  daughter's  husband  for 
her  wedding  cloaths ;  and  the  defence  was,  that  the  goods  were  fur- 
nished on  the  credit  of  the  father ;  and  to  prove  this  the  mother  who 
was  present  at  the  chusing  the  goods  was  called  to  charge  her  husband, 
and  allowed. 


REX  V.  FREDERICK  et  al. 
(Court  of  King's  Bench,  1725.    2  Strange,  1095.) 

The  defendants  were  indicted  for  a  joint  assault.  And  at  the  trial 
in  'Middlesex,  it  was  insisted  to  examine  the  wife  of  the  defendant 
Tracy  as  a  witness  for  the  other  defendant:  but  there  having  been 
material  evidence  given  against  the  husband,  and  it  being  a  joint  tres- 
pass, and  impossible  to  separate  the  cases  of  the  two  defendants  in  the 
account  to  be  given  of  the  transaction;  the  Chief  Justice  refused  to 
let  her  be  examined.'^ 


BENTLEY  v.  COOKE. 

(Court  of  King's  Bench,  1784.    3  Doug.  422.) 

This  was  an  action  of  assumpsit  by  a  woman  suing  as  a  feme  sole 
tried  before  Buller,  J.  After  the  plaintiff  had  proved  her  case,  the  de- 
fendant called  one  James  Ramsden,  who  proved  that  he  was  married 
to  tlie  plaintiff,  and  produced  a  copy  of  the  marriage  register.    On  his 

00  But  the  wife  is  not  competent  on  a  cliarge  of  assault  on  her  by  the 
husband  prior  to  the  marriage.  State  v.  Evans,  138  Mo.  116,  39  S.  W.  462, 
60  Am.  St.  Rep.  549  (1897) ;  Norman  v.  State,  127  Tenn.  340,  155  S.  W.  135. 
45  L.  R.  A.  (N.  S.)  399  (1913).  See,  also,  State  v.  Winnett,  48  Wash.  93, 
92  Pac.  904  (1907),  where,  on  a  similar  charge,  it  was  thought  that  the  rule 
was  violated  by  exhibiting  the  wife  to  the  jury,  who  could  observe  her  ap- 
pearance. 

61  And  so  in  a  civil  case.     Hawksworth  v.  Shawler,  12  M.  &  W.  45  (1843).' 
The  wife  of  a   defendant  who  has  been   convicted   is   competent  against 
another  defendant,  though  she  hopes  by  lier  testimony  to  obtain  a  i>nrdonj 
for  her  husband.    Rudd's  Case,  1  Leach,  135  (1775). 


186  •  WITNESSES  (Ch,  2 

cross-examination,  he  stated,  that  he  and  his  wife  had  been  long  sep- 
arated by  agreement  without  deed,  and  that  the  plaintiff  maintained 
herself,  and  allowed  him  a  certain  sum  yearly.  The  plaintiff  having 
been  nonsuited  on  the  ground  of  the  coverture,  a  rule  for  a  new 
trial  was  obtained  on  the  incompetency  of  the  husband  as  a  witness. 

Lee  and  Peckham  showed  cause.  The  husband  was  competent. 
He  was,  in  fact,  speaking  against  his  own  interest,  for  whatever  his 
wife  recovered  in  that  action  would  become  his  property.  It  is  said, 
however,  that  a  husband  or  wife  cannot  be  a  witness  for  or  against 
each  other;  but  the  true  reason  why  the  wife  is  incom.petent  is  that 
she  is  supposed  to  be  under  restraint.  The  objection,  in  this  case, 
cannot  be  stated,  without  being  answered,  "You  reject  the  witness  be- 
cause he  is  the  plaintiff's  husband.  If  he  is  the  plaintiff's  husband  she 
cannot  maintain  the  action."  The  husband  was  only  called  to  prove 
the  copy  of  the  register,  which  any  person  may  prove,  and  the  Court 
will  not,  under  such  circumstances,  put  the  plaintiff"  to  the  expense  of 
a  new  trial. 

Lord  Mansfield.  There  never  has  been  an  instance  either  in  a 
civil  or  criminal  case  where  the  husband  or  wife  has  been  permit- 
ted to  be  a  witness  for  or  against  the  other,  except  in  case  of  neces- 
sit}'',  and  that  necessity  is  not  a  general  necessity,  as  where  no  other 
witness  can  be  had,  but  a  particular  necessity,  as  where,  for  instance, 
the  wife  would  otherwise  be  exposed  without  remedy  to  personal  in- 
jury.   I  think  the  husband  was  not  a  competent  witness. 

WiLLES  and  Ashurst,  Justices,  of  the  same  opinion. 

BuLLER,  Justice.  If  this  case  is  to  be  determined  by  the  abstract 
general  rule  that  husband  and  wife  cannot  be  witnesses  for  or  against 
each  other,  the  witness  was  certainly  incompetent.  But  if  that  rule 
be  grounded  on  the  principle  of  interest,  then  I  think  the  husband  was 
a  competent  witness.  How  is  the  husband's  interest  affected  here? 
He  is  interested  to  disprove  the  marriage,  because  he  is  hable  to  main- 
tain his  wife.  He  is  interested  to  disprove  the  rnarriage  on  this  occa- 
sion, because,  if  the  wife  should  recover,  all  that  she  recovers  will  be 
his.  In  proving  the  marriage,  therefore,  he  is  speaking  against  his 
own  interest.  I  cannot  think  that  the  verdict  in  this  action  would  be 
a  bar  to  another  action  by  the  husband  for  the  same  cause.  Suppose 
that  a  wife  gets  possession  of  her  husband's  effects,  and  sells  them, 
'  shall  she  recover  the  price  and  her  husband  be  barred  ?  I  thin'}-:  the 
true  ground  in  these  cases  is  laid  down  in  Abraham  v.  Bunn,  B.  R.  4 
Burr,  2251,  that  the  interest  to  exclude  must  be  an  interest  in  the 
question.  As  to  the  general  rule,  I  find  it  only  in  criminal  cases,  and 
then  where  the  marriage  is  admitted.  Where  the  marriage  is  in  ques- 
l,tion,  as  here,  every  motive  of  interest  is  certainly  the  other  way,  be- 
cause the  husband  may  hurt  himself,  but  cannot  do  himself  any  good. 
iHowever,  if  the  rule  is  a  general  one,  to  be  sure  it  must  prevail. 

Rule  absolute. 


Sec.  1)  COMPETENCY  187 

DAVIS  V.  DINWOODY. 

(Court  of  King's  Bench,  1792.     4  Durn.  &  E.  678.) 

This  was  an  action  by  the  executrix  of  a  surviving  trustee  under  a 
marriage  settlement  of  J.  Lewis  in  1780,  by  which  certain  household 
goods,  mentioned  in  a  schedule  annexed  to  the  deed,  were  settled  to 
the  sole  and  separate  use  of  Lewis's  wife ;  and  it  was  brought  against 
the  defendant,  sheriff  of  Monmouthshire,  to  recover  back  the  value 
of  some  of  those  articles,  which  had  been  seized  and  sold  by  him  un- 
der an  execution  against  Lewis.  At  the  trial  at  Monmouth  before 
Grose,  J.,  J.  Lewis  was  called  as  a  witness  to  prove  the  identity  of 
the  goods  J  the  defendant's  counsel  objected  to  his  competency,  and  it 
was  said  that  he  was  interested;  to  which  it  was  answered  that  he 
came  to  speak  against  his  interest;  for  that  if  these  goods,  which  had 
been  seized,  were  not  his  own  and  could  not  be  taken  to  pay  his  debt, 
he  would  be  liable  afterwards.  Whereas,  if  they  could  be  taken  in 
execution,  his  debt  would  be  discharged.  The  learned  judge  admitted 
the  witness,  but  reserved  the  point. 

Adair,  Serjt.,  having  obtained  a  rule  to  shew  cause  why  the  ver- 
dict for  the  plaintiff  should  not  be  set  aside,  and  a  new  trial  had. 

Lord  Kenyon,  C.  J.  (stopping  Adair  Serjt.  and  Caldecott,  contra). 
Independently  of  the  question  of  interest,  husbands  and  wives  are 
not  admitted  as  witnesses  either  for  or  against  each  other :  from  their 
being  so  nearly  connected,  they  are  supposed  to  have  such  a  bias  upon 
their  minds  that  they  are  not  to  be  permitted  to  give  evidence  either  for 
or  against  each  other. 

BuLLER,  J.  It  is  now  considered  as  a  settled  principle  of  law  that 
husbands  and  wives  cannot  in  any  case  be  admitted  as  witnesses  either 
for  or  against  each  other. 

Rule  absolute. 


THE  KING  V.  THE  INHABITANTS  OF  BATHWICIC 
(Court  of  King's  Bench,  1831.     2  Barn.  &  Adol.  639.) 

Upon  an  appeal  against  an  order  of  two  justices,  whereby  Elizabeth, 
the  wife  of  William  Joliffe  Cook,  was  removed  from  the  parish  of 
Bathwick,  in  the  county  of  Somerset,  to  the  parish  of  St.  Pancras,  in 
the  county  of  Middlesex,  the  sessions  quashed  the  order,  subject  to  tlie 
opinion  of  this  Court  on  the  following  case: 

The  respondents  proved  by  the  testimony  of  the  said  William  Joliffe 
Cook,  his  settlement  in  St.  Pancras,  and  his  marriage  with  the  pauper 
at  Bath  in  1829,  and  he  stated  her  to  be  now  his  wife.  The  appellants 
insisted  that  the  marriage  was  void,  the  said  Wm.  Joliffe  Cook  having 
been  previously  married  in  Dublin  in  1826,  to  Mary  Byrne;    and,  to 


1-S8  WITNESSES  (Ch.  2 

prove  their  case,  they  called  the  said  Mary,  to  whose  competency  the 
respondents  objected.®^ 

Lord  Tenterden,  C.  J.,  now  delivered  the  judgment  of  the  Court. 

First,  we  are  of  opinion  that  the  witness  Mary,  assuming  her  to  be 
the  first  and  lawful  wife  of  W.  J.  Cook,  was  a  competent  witness. 

The  question  arose  on  the  settlement  of  another  woman,  considered 
to  be  the  wife  of  Cook.  Cook  was  examined,  and  proved  his  mar- 
riage with  this  woman;  but  he  was  not  asked,  and  did  not  say,  that 
he  had  not  been  previously  married  to  the  witness  Mary.  The  wit- 
ness, Mary,  was  afterwards  called  to  prove  her  previous  marriage  with 
this  person.  In  deposing  to  this  marriage,  she  did  not  contradict  any- 
thing that  he  had  said.  I  notice  this  fact ;  but  we  do  not  mean  to  say 
that,  if  she  had  been  called  to  contradict  what  he  had  sworn,  she  would 
not,  in  a  case  like  this,  have  been  a  competent  witness  to  do  so.  It 
is  not  necessary  to  decide  that  question  at  present;  but  it  may  well 
be  doubted  whether  the  competency  of  a  witness  can  depend  upon  the 
marshalling  of  the  evidence,  or  the  particular  stage  of  the  cause  at 
which  the  witness  may  be  called.  In  the  present  case,  however,  the 
witness  not  having  been  called  to  contradict  her  husband,  and  her  tes- 
timony not  being  inconsistent  with  the  fact  to  which  he  had  deposed, 
her  incompetence,  if  it  can  be  established,  can  be  so  only  upon  the 
authority  of  the  case  of  The  King  v.  The  Inhabitants  of  Cliviger,  2  T. 
R.  263.  The  authority  of  that  case  was  much  shaken  by  the  decision 
of  the  case  in  The  King  v.  The  Inhabitants  of  All  Saints,  Worcester, 
6  M.  &  S.  194,  in  which  Lord  EHenborough  said,  "The  objection  rests 
only  on  the  language  of  The  King  v.  Cliviger,  that  it  may  tend  to  crim- 
inate him ;  for  it  has  not  an  immediate  tendency,  inasmuch  as  what  she 
stated  could  not  be  used  in  evidence  against  him.  The  passage  from 
Lord  Hale  (P.  C.  301)  has  been  pressed  upon  us,  where  it  is  said  the 
wife  is  not  bound  to  give  evidence  against  another  in  a  case  of  theft, 
if  her  husband  be  concerned,  though  her  evidence  be  material  against 
another,  and  not  directly  against  her  husband.  Admitting  the  author- 
ity of  that  passage,  it  assumes  that  the  husband  was  under  the  crim- 
inal charge ;  that  he  was  included  in  the  simul  cum  aliis.  But  if  we 
were  to  determine,  without  regard  to  the  form  of  proceeding  whether 
the  husband  was  implicated  in  it  or  not,  that  the  wife  is  an  incompetent 
witness  as  to  every  fact  which  may  possibly  have  a  tendency  to  crim- 
inate her  husband,  or  which,  connected  with  other  facts,  may  perhaps 
go  to  form  a  link  in  a  complicated  chain  of  evidence  against  him,  such 
a  decision,  as  I  think,  would  go  beyond  all  bounds;  and  there  is  not 
any  authority  to  sustain  it ;  unless,  indeed,  what  has  been  laid  down, 
as  it  seems  to  me,  somewhat  too  largely,  in  Rex  v.  Cliviger  may  be 
supposed  to  do  so." 

The  decision  in  the  case  of  Rex  v.  The  Inhabitants  of  Cliviger  ap- 
pears to  have  been  founded  on  a  supposed  legal  maxim  of  policy,  viz. 

«2  Slatement  condensed  and  part  of  opinion  omitted. 


Sec.   I)  COMPETENCY  189 

that  a  wife  cannot  be  a  witness  to  give  testimony  in  any  degree  to 
criminate  her  husband.  This  will  undoubtedly  be  true  in  the  case  of 
direct  charge  and  proceeding  against  him  for  any  offence;  but  in  such 
a  case  she  cannot  be  a  witness  to  prove  his  innocence  of  the  charge. 
The  present  case  is  not  a  direct  charge  or  proceeding  against  the 
husband.  It  is  true,  that  if  the  testimony  given  by  both  be  considered 
as  true,  the  husband,  Cook,  has  been  guilty  of  the  crime  of  bigamy; 
but  nothing  that  was  said  by  the  wife  in  tliis  case,  nor  any  decision 
of  the  court  of  session,  founded  upon  her  testimony,  can  hereafter  be 
received  in  evidence  to  support  an  indictment  against  him  for  that 
crime.  This  is  altogether  res  inter  alios  acta ;  neither  the  husband 
nor  the  wife  has  any  interest  in  the  decision  of  the  question,  and  the 
interest  of  the  parish  of  Pancras  required  that  the  illegality  of  the 
second  marriage  should  be  established,  if  it  was  in  fact  illegal.  *  *  * 
Order  of  sessions  confirmed. 


MILES  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1880.     103  U.  S.  304,  26  L.  Ed.  481.) 

Mr.  Justice  Woods  *'  delivered  the  opinion  of  the  court. 

Section  5352  of  the  Revised  Statutes  of  the  United  States  declares : 

"Every  person  having  a  husband  or  wife  living,  who  marries  an- 
other, whether  married  or  single,  in  a  territory  or  other  place  over 
which  the  United  States  has  exclusive  jurisdiction,  is  guilty  of  big- 
amy, and  shall  be  punished  by  a  fine  of  not  more  than  five  hundred 
dollars  and  by  imprisonment  for  a  term  not  more  than  five  years." 

The  plaintiff  in  error  was  indicted  under  this  section  in  the  Third 
District  Court  of  Utah,  at  Salt  Lake  City.  He  was  convicted.  He 
appealed  to  the  Supreme  Court  of  the  Territory,  where  the  judgment 
of  the  District  Court  was  affirmed. 

That  judgment  is  now  brought  to  this  court  for  review  upon  writ  of 
error,     *     *     * 

The  plaintiff  in  error  lastly  claims  that  the  court  erred  in  allowing 
Caroline  Owens,  the  second  wife,  to  give  evidence  against  him  touch- 
ing his  marriage  with  Emily  Spencer,  the  alleged  first  wife;  and  in 
charging  the  jury  that  they  might  consider  her  testimony,  if  they 
found  from  all  the  evidence  in  the  case  that  she  was  a  second  and  plu- 
ral wife. 

This  assignment  of  error,  we  think,  is  well  founded. 

The  law  of  Utah  declares  that  a  husband  shall  not  be  a  witness  for  or 
against  his  wife,  nor  a  wife  for  or  against  her  husband. 

The  marriage  of  the  plaintiff  in  error  with  Caroline  Owens  was 
charged  in  the  indictment  and  admitted  by.  him  upon  the  trial.     The 

•»  Part  of  opinion  omitted. 


190  WITNESSES  (Ch.  2 

fact  of  his  previous  marriage  with  Emily  Spencer  was,  therefore, 
the  only  issue  in  the  case,  and  that  was  contested  to  the  end  of  the  trial. 
Until  the  fact  of  the  marriage  of  Emily  Spencer  with  the  plaintiff  in 
error  was  established,  Caroline  Owens  was  prima  facie  his  wife,  and 
she  could  not  be  used  as  a  witness  against  him. 

The  ground  upon  which  a  second  wife  is  admitted  as  a  witness 
against  her  husband,  in  a  prosecution  for  bigamy,  is  that  she  is  shown 
not  to  be  a  real  wife  by  proof  of  the  fact  that  the  accused  had  pre- 
viously married  another  wife,  who  was  still  living  and  still  his  lawful 
wife.  It  is  only  in  cases  where  the  first  marriage  is  not  controverted, 
or  has  been  duly  established  by  otlier  evidence,  that  the  second  wife 
is  allowed  to  testify,  and  she  can  then  be  a  witness  to  the  second  mar- 
riage, and  not  to  the  first. 

The  testimony  of  the  second  wife  to  prove  the  only  controverted  is- 
sue in  the  case,  namely,  the  first  marriage,  cannot  be  given  to  the  jury 
on  the  pretext  that  its  purpose  is  to  establish  her  competency.  As  her 
competency  depends  on  proof  of  the  first  marriage,  and  that  is  the  issue 
upon  which  the  case  turns,  that  issue  must  be  established  by  other 
witnesses  before  the  second  wife  is  competent  for  any  purpose.  Even 
then  she  is  not  competent  to  prove  the  first  marriage,  for  she  cannot  be 
admitted  to  prove  a  fact  to  the  jury  which  must  be  established  before 
she  can  testify  at  all. 

Witnesses  who  are  prima  facie  competent,  but  whose  competency 
is  disputed,  are  allowed  to  give  evidence  on  their  voir  dire  to  the 
court  upon  some  collateral  issue,  on  which  their  competency  depends, 
but  the  testimony  of  a  witness  who  is  prima  facie  incompetent  cannot 
be  given  to  the  jury  upon  the  very  issue  in  the  case,  in  order  to  establish 
his  competency,  and  at  the  same  time  prove  the  issue. 

The  authorities  sustain  these  views. 

Upon  a  prosecution  for  bigamy  under  the  statute  of  1  Jac,  c.  11, 
it  was  said  by  Lord  Chief  Justice  Hale:  "The  first  and  true  wife  is 
not  allowed  to  be  a  witness  against  her  husband,  but  I  think  it  clear 
the  second  may  be  admitted  to  prove  the  second  marriage,  for  she  is 
not  his  wife,  contrary  to  a  sudden  opinion  delivered  in  July,  1664,  at 
the  Assizes  in  Surrey,  in  Arthur  Armstrong's  case,  for  she  is  not  so 
much  as  his  wife  de  facto."    1  Hale,  P.  C.  693. 

So  in  East's  Pleas  of  the  Crown  the  rule  is  thus  laid  down:  "The 
first  and  true  wife  cannot  be  a  witness  against  her  husband,  nor  vice 
versa ;  but  the  second  may  be  admitted  to  prove  the  second  marriage, 
for  the  first  being  proved  she  is  not  so  much  as  wife  de  facto,  but  that 
must  be  first  established."  1  East,  P.  C.  469.  The  text  of  East  is 
supported  by  the  following  citation  of  authorities :  1  Hale,  P.  C.  693 ; 
2  M.  S.  Sum.  331;  Ann  Cheney's  Case,  O.  B.  May,  1730,  Sergt.  Fos- 
ter's Manuscript. 

In  Peake's  Evidence  (Norris)  248,  it  is  said :  "It  is  clearly  settled 
that  a  woman  who  was  never  legally  the  wife  of  a  man,  though  she 


Sec.  1)  COMrETENCT  191 

has  been  in  fact  married  to  him,  may  be  a  witness  against  him;  as  in 
an  indictment  for  bigamy,  the  first  marriage  being  proved  by  other 
witnesses,  the  second  wife  may  be  examined  to  prove  the  marriage 
with  her,  for  she  is  not  de  jure  his  wife." 

Mr.  Greenleaf ,  in  his  work  on  Evidence,  volume  3,  section  206,  says : 
"If  tlie  first  marriage  is  clearly  proved  and  not  controverted,  then  the 
person  with  whom  the  second  marriage  was  had  may  be  admitted  as 
a  witness  to  prove  the  second  marriage,  as  well  as  to  other  facts  not 
tending  to  defeat  the  first  or  legalize  the  second.  There  it  is  con- 
ceived she  would  not  be  admitted  to  prove  a  fact  showing  that  the  first 
marriage  was'  void, — such  as  relationship  within  the  degrees,  or  the 
like, — nor  that  the  first  wife  was  dead  at  the  time  of  the  second  mar- 
riage, nor  ought  she  to  be  admitted  at  all  if  the  first  marriage  is  in 
controversy." 

The  result  of  the  authorities  is  that,  as  long  as  the  fact  of  the  first 
marriage  is  contested,  the  second  wife  cannot  be  admitted  to  prove  it. 
When  the  first  marriage  is  duly  established  by  other  evidence,  to  the 
satisfaction  of  the  court,  she  may  be  admitted  to  prove  the  second 
marriage,  but  not  the  first,  and  the  jury  should  have  been  so  instructed. 

In  this  case  the  injunction  of  the  law  of  Utah,  that  the  wife  should 
not  be  a  witness  for  or  against  her  husband,  was  practically  ignored 
by  the  court.  After  some  evidence  tending  to  show  the  marriage  of 
plaintiff  in  error  with  Emily  Spencer,  but  that  fact  being  still  in  con- 
troversy, Caroline  Owens,  the  second  wife,  was  put  upon  the  stand  and 
allowed  to  testify  to  the  first  marriage,  and  the  jury  were,  in  effect, 
told  by  the  court  that  if,  from  her  evidence  and  that  of  other  wit- 
nesses in  the  case,  they  were  satisfied  of  the  fact  of  the  first  marriage, 
then  they  might  consider  tlie  evidence  of  Caroline  Owens  to  prove  the 
first  marriage. 

In  other  words,  the  evidence  of  a  witness,  prima  facie  incompetent, 
and  whose  competency  could  only  be  shown  by  proof  of  a  fact  which 
was  the  one  contested  issue  in  the  case,  was  allowed  to  go  to  the  jury 
to  prove  that  issue  and  at  the  same  time  to  establish  the  competency 
of  the  witness. 

In  this  we  think  the  court  erred. 

It  is  made  clear  by  the  record  that  polygamous  marriages  are  so 
celebrated  in  Utah  as  to  make  tlie  proof  of  polygamy  very  difficult. 
They  are  conducted  in  secret,  and  the  persons  by  whom  they  are  sol- 
emnized are  under  such  obligations  of  secrecy  that  it  is  almost  im- 
possible to  extract  the  facts  from  them  when  placed  upon  the  witness 
stand.  If  both  wives  are  excluded  from  testifying  to  the  first  marriage, 
as  we  think  they  should  be  under  the  existing  rules  of  evidence,  testi- 
mony sufficient  to  convict  in  a  prosecution  for  polygamy  in  the  ter- 
ritory of  Utah  is  hardly  attainable.  But  this  is  not  a  consideration  by 
which  we  can  be  influenced.  We  must  administer  the  law  as  we  find 
it.    The  remedy  is  with  Congress,  by  enacting  such  a  change  in  the  law 


392  WITNESSES  (Ch.  2 

of  evidence  in  the  territory  of  Utah  as  to  make  both  wives  witnesses 
on  indictments  for  bigamy. 

For  the  error  indicated  the  judgment  of  the  Supreme  Court  of  the 
territory  of  Utah  must  be  reversed  and  the  cause  remanded  to  that 
court,  to  be  by  it  remanded  to  the  District  Court,  with  directions  to 
set  aside  the  verdict  and  judgment  and  award  a  venire  facias  de  novo. 

So  ordered. 


STAPLETON  v.  CROFTS. 

(Court  of  Queen's  Bench,  1852.    18  Adol.  &  El.  N.  S.  367.) 

Assumpsit  for  goods  sold  and  dehvered.  Plea,  Non  assumpsit.  Is- 
jUe  thereon. 

On  the  trial  before  Erie,  J.,  at  the  sittings  at  Westminster  in  last 
term,  the  defendant's  wife  was  called  as  a  witness  for  the  defendant. 
The  evidence  was  objected  to;  but  the  learned  Judge  admitted  it. 
Verdict  for  the  defendant. 

In  the  ensuing  term  Huddleston  obtained  a  rule  nisi  for  a  new  trial, 
on  the  ground  of  the  improper  reception  of  evidence. 

WiGHTMAN,  J.®*  It  is  contended  that  the  objection  to  the  admissi- 
bility of  the  wife  is  removed  by  Stat.  14  &  15  Vict.  c.  99.  That  Act, 
however,  in  its  terms  applies  only  to  "the  parties"  to  any  suit.  Now 
the  wife  of  a  party  is  not  herself  a  party  to  the  suit;  and  the  terms 
oi  the  Act  do  not  embrace  this  case.  But,  independently  of  the  terms 
ol  the  Act,  I  think  that  the  object  appears  to  have  been  to  complete 
the  removal  of  objections  on  the  ground  of  interest:  and  the  objection 
to  admitting  the  wife  of  a  party  is  not  merely  on  the  ground  of  her 
identity  in  interest  with  her  husband,  but  depends  upon  a  broader 
view  of  the  relation  of  husband  and  wife,  and  on  the  interest  which 
the  public  have  in  the  preservation  of  domestic  peace  and  confidence 
between  married  persons."* 

CnoMPTON,  J.  *  *  *  It  is  said  that  the  ground  on  which  the 
wife  is  rejected  is  the  identity  in  interest  between  her  and  her  husband, 
the  party  to  the  record.  If  that  were  so,  it  would  not  follow  that  be- 
cause the  one  was  enabled  to  be  a  witness  the  other  was.  The  ground 
of  objection,  the  interest,  remains ;  but  the  Legislature  has  by  express 
enactment  said  that  it  shall  no  longer  be  an  objection  to  the  admissi- 
bility of  the  party:  the  objection  to  the  admissibility  of  the  wife  is 
left  untouched.  The  Legislature  might  have  taken  away  the  objection 
to  both ;  but  they  have  not  chosen  to  do  so :  and,  there  being  no  words 
enacting  that  the  wife  shall  be  adinissible,  I  think  she  continues  in- 
admissible. 

«*  Part  of  opinions  of  Crompton  and  Erie,  JJ.,  omitted. 
«8  Accord:  Hopkins  v.  Grimshaw,  165  U.  S.  342,  17  Sup.  Ct.  401,  41  L.  Ed. 
739  11897). 


Sec.  1)  •  COMPETENCY  19.T 

ERLTt,  J.  I  am  of  opinion  that  Stat.  13  &  14  Vict.  c.  99,  §  2,  ren- 
dering parties  to  a  suit  competent  witnesses,  has  rendered  the  wives  of 
parties  also  competent. 

The  law  relating  to  exclusion  of  evidence  on  account  of  interest 
gave  effect  to  the  principle  of  uniting  the  interest  of  husband  and  wife. 
If  the  husband  was  excluded  on  account  of  interest,  so  was  also  the 
wife  on  account  of  her  united  interest ;  and,  if  the  capacity  of  the 
husband  was  restored,  the  wife  became  thereby  also  capable.  Although 
the  wife  had  no  direct  interest  during  coverture  in  personal  property, 
she  was  taken- to  have  an  indirect  interest  derivative  from  that  of  her 
husband. 

The  party  to  a  suit  was  both  excluded  and  exempted  on  account  of 
his  interest.  For  the  same  reason  and  from  the  same  union  of  interest 
the  wife  of  a  party  was  also  exempted  and  excluded.  If  capacity  was 
restored  to  the  parties  by  judgment  by  default,  by  nolle  prosequi  or 
otherwise,  the  capacity  of  the  wife  was  also  restored  thereby.  It  seems 
to  me  to  follow  that,  when  the  incapacity  of  parties  is  taken  away  by 
statute,  the  incapacity  of  the  wives  of  parties  should  also  cease,  and 
the  union  of  capacity  or  incapacity  be  still  maintained. 

This  brings  me  to  the  question  whether  there  was  any  other  prin- 
ciple for  excluding  the  wife  of  a  party  besides  this  union  of  interest 
and  privilege  between  husband  and  wife.  Upon  the  affirmative  side, 
authorities  are  cited  for  exclusion  of  the  wife  with  a  view  to  pre- 
serving the  peace  of  families ;  they  are  collected  in  Taylor  on  Evi- 
dence, vol.  2,  p.  899,  where  it  is  said  the  admission  of  such  testimony 
would  lead  to  dissension  and  unhappiness,  and  probably  to  perjury,  and 
because  the  confidence  subsisting  between  husband  and  wife  should  be 
sacredly  cherished. 

There  is  no  doubt  that  the  law  most  carefully  protects  the  interests 
connected  with  marriage,  and  established  the  union  of  interest  above 
mentioned  for  the  purpose  of  domestic  union,  and  excluded  the  testi- 
mony of  the  wife,  where  the  husband  was  excluded,  on  account  of  this 
union ;  and  the  expressions  above  cited,  if  confined  to  the  exclusion  of 
the  wife  when  the  husband  is  excluded,  have  a  definite  meaning,  capa- 
ble of  a  practical  application :  but,  if  they  are  carried  beyond  this  lim- 
it, and  are  supposed  to  introduce  tendency  to  domestic  discord  as  a 
ground  of  exclusion,  they  will  be  found  to  be  contrary  to  known  prin- 
ciples of  evidence,  and  to  be  incapable  of  being  consistently  applied. 
For,  if  this  ground  of  exclusion  existed,  it  would  apply  to  other  wit- 
nesses, as  well  as  to  parties,  their  domestic  peace  being  equally  impor- 
tant. But  it  is  clear  with  respect  to  witnesses,  not  parties,  that  they 
cannot  refuse  to  be  examined  on  any  ground  derived  from  marriage, 
and  that  hu.sbands  and  wives  may  mutually  contradict  and  discredit 
each  other  upon  matters  full  of  family  dissension,  as  freely  as  if  the 
marriage  was  null. 

Even  if  .it  could  be  supposed  that  the  law  regarded  only  the  doniestir 
HiNT.Ev.— 13 


194  WITNESSES  (Ch.  2 

peace  of  parties,  and  protected  their  confidence,  still  the  supposed 
ground  of  exclusion  is  not  consistently  applied ;  for,  if  a  husband  is 
assaulted  or  libelled,  he  may  seek  redress  either  by  action  or  indict- 
ment. In  either  form  he  is  in  substance  the  party.  If  he  proceeds 
by  action,  he  and  his  wife  were  incompetent.  If  by  indictment,  both 
are  admissible  either  to  corroborate,  or  contradict  or  discredit  each 
other.  Now,  if  the  principle  of  excluding  the  wives  of  parties  was 
protection  of  domestic  peace  and  confidence,  the  wife  ought  to  be 
excluded  equally  in  both  cases :  but  she  was  excluded  only  in  the 
action,  where,  as  the  husband  was  also  incompetent,  it  seems  better 
reasoning  to  attribute  her  exclusion  to  the  uniform  principle  of  union, 
than  to  suppose  a  regard  for  domestic  peace  in  the  civil  Court,  to  be 
neglected  in  the  criminal  Court. 

With  respect  to  the  protection  of  confidential  communications  be- 
tween husband  and  wife,  there  seems  good  reason  for  such  protection 
at  all  times  ;   but  no  such  principle  has  been  brought  into  practice. 

The  decisions  excluding  the  wives  of  parties  have  been  accompanied 
with  general  declarations  in  favour  of  such  protection.  But,  as  the 
exclusion  extended  to  all  the  testimony  of  the  wives  of  parties,  whether 
it  was  confidential  or  not,  and  as  no  protection  was  given  to  conjugal 
confidence  in  respect  of  the  wives  of  witnesses,  not  parties,  who  are  as 
much  within  the  reason  of  the  rule,  if  it  existed,  as  the  first-mentioned 
class,  I  think  the  rule  has  not  yet  been  established.     *     *     * 

If  the  question  may  be  considered  with  reference  to  the  interest  of 
truth,  it  is  clear  the  exclusion  of  essential  information  as  a  means  for 
finding  truth  is  absurd.  It  is  not  doubted  that  wives  often  possess 
essential  information  as  to  matters  within  the  usual  province  of  a  wife, 
and  as  to  those  conducted  by  her  as  agent  for  her  husband,  and  as  to 
those  which  she  has  happened  to  witness. 

If  essential  witnesses  are  excluded,  there  is  the  certain  evil  of  de- 
ciding without  knowledge,  and  there  is  the  probable  evil  of  shaking 
confidence  in  the  law:  these  evils  are  certain;  and,  if  the  notion  of  a 
compensating  good  in  the  promotion  of  domestic  happiness  by  render- 
ing the  wife  powerless  as  a  witness  be  analyzed,  I  believe  it  will  be 
found  illusory.  The  idea  that  husbands  generally  would  suborn  their 
wives  to  perjury,  and  persecute  them  if  they  spoke  truth,  is,  to  my 
mind,  unworthy  of  the  time;  there  is  no  reason  for  supposing  that 
wives,  if  admitted,  would  be  worse  treated  in  respect  of  their  testimony 
than  in  respect  of  any  other  part  of  their  conduct,  or  be  more  prone  to 
untruth  than  any  other  class  of  witnesses:  and,  if,  by  reason  of  the 
exclusion  of  the  wife,  the  husband  has  to  suffer  an  adverse  judgment 
contrary  to  truth,  and  the  consequent  loss,  he  would  dissent  with  much 
reason  from  the  zealous  declarations  that  such  a  mean  for  protecting 
the  peace  of  his  family  and  the  sanctity  of  his  marriage  was  better 
than  administering  the  law  according  to  truth. 

These  observations  apply  to  the  present  case ;  for  the  husband  was 
examined,  and  did  not  understand  the  matters  in  question,  which  had 


Sec.  1)  COMPETENCY  195 

been  managed  by  his  wife.  If  she  had  been  excluded  the  verdict 
would  have  been  for  the  plaintiff,  and  the  defendant  would  have  been 
made  liable  to  a  demand  contrary  to  the  truth.  As  these  considerations 
wore  in  my  mind  before  the  judgment  of  the  Exchequer  in  Barbat  v. 
Allen,  9  Exch.  609,  and  as  they  refer  entirely  to  the  effect  of  the 
second  section,  which  was  not  much  discussed  in  that  case,  I  trust  I  am 
not  wanting  in  deference  if  I  say  that  my  opinion  is  not  changed."® 
Rule  absolute. 


MAVERICK  V.  EIGHTH  AVE.  R.  CO. 

(Court  of  Appeals  of  New  York,  1867.     36  N.  Y.  378.) 

Action  by  Augustus  Maverick  and  Ellen  G.,  his  wife,  for  damages 
on  account  of  personal  injuries  sustained  by  the  wife  while  a  pas- 
senger on  the  defendant's  car.  The  plaintiffs  recovered  a  judgment 
for  $1215.00,  which  was  affirmed  by  the  General  Term,  and  the  de- 
fendant appealed."^ 

ScRUGHAM,  J.  The  testimony  of  the  plaintiff,  Augustus  Maverick, 
was  properly  received. 

The  question  is,  not  whether  he  can  be  a  witness  for  his  wife,  but 
whether,  being  a  party,  he  must  be  debarred  from  testifying  in  his 
own  behalf  because  his  wife  is  also  a  party  to  the  action.  If  the  re- 
sult of  the  action  could  only  affect  his  wife  or  her  separate  property, 
and  he  was  merely  a  nominal  plaintiff,  having  no  pecuniary  interest 
whatever  in  the  result,  and  he  should  be  offered  as  a  witness,  the 
question  as  to  his  inadmissibility  on  account  of  his  marital  relation  to 
the  real  plaintiff  in  interest  would  be  presented.  As  having  no  inter- 
est in  the  result  of  the  action  he  could  not  be  considered  as  a  party 
offering  to  testify  in  his  own  behalf  or  in  any  other  character  than  as 
a  witness  for  or  against  his  wife. 

But  in  cases  like  this  before  us,  the  husband  has  a  direct  pecuniary 
interest  in  the  result. 

The  action  was  commenced  and  the  judgment  rendered  before  the 
passage  of  the  act  of  1861  giving  to  the  married  woman  the  right  to 
maintain  an  action  in  her  own  name,  and  as  if  she  were  a  feme  sole,  for 
injuries  to  her  person;  and  declaring  that  the  moneys  recovered  on  a 
judgment  in  such  action  shall  be  her  sole  and  separate  property.  As 
the  law  stood  at  the  time  of  the  injury  on  account  of  which  this  action 
was  brought,  and  of  the  judgment,  the  husband  was  entitled  to  the 
money  which  should  be  recovered  in  his  life-time  for  injuries  to  the 

68  The  omitted  parts  of  this  opinion  review  Bentley  v.  Coolce,  3  Doug,  422 
(1784) ;  Davis  v.  Dinwoody,  4  D.  &  E.  678  (1792) ;  Ilawkesworth  v.  Showier 
12  M.  &  W.  45  (1S43);  Brou^hton  v.  Harper,  2  Ld.  Rayiaond,  752  (170:J) ; 
Hex  V.  Cliviger,  2  D.  &  E.  2(J3  (17SS);  Rex  v.  All  Saints,  6  M.  &  S.  194 
(1S17);  Ilex  v.  Bathwiclc,  2  B.  &  Ad.  639  (1831);  O'Connor  v.  Majoribanks, 
4  M.  &  G.  435  (1842). 

6  7  Statement  condensed  and  part  of  opinion  omitted. 


196  WITNESSES  .  (Ch.  2 

person  of  his  wife;  and  the  necessity  for  making  the  wife  a  party  to 
such  actions  arose  from  the  fact  that  the  damages  would  survive  to 
the  wife  if  the  husband  died  before  they  were  recovered.  The  in- 
terest of  the  husband  in  the  recovery  was  direct  and  immediate,  while 
that  of  the  wife  was  uncertain  and  contingent.  He  had  the  right  as 
a  real  party  in  interest  to  be  examined  as  a  witness  in  his  own  be- 
half,"^ and  the  circumstance  that  his  wife  might  be  benefited  by  his 
testimony  if  he  should  die  before  recovery,  is  merely  incidental  and 
would  not  justify  the  exclusion  of  his  testimony.  *  *  * 
Judgment  affirmed. 


WOOD  V.  BROADLEY. 
(Supreme  Court  of  Missouri,  1SS2.     76  Mo.  23,  43  Am.  Rep.  754.) 

Henry,  J.*®  The  plaintiff,  Elizabeth,  is  the  daughter  of  Nicholas 
D.  Broadley,  deceased,  and  her  co-plaintiff  is  her  husband.  On  the 
25th  day  of  February,  1875,  said  Nicholas  by  deed  conveyed  to  his 
wife,  defendant  Elizabeth,  all  the  lands  he  owned,  about  300  acres,  for 
the  expressed  consideration  of  $2,000,  which  was  never  paid  by  her, 
and  which  it  was  not  the  intention  of  said  Nicholas  that  she  should  pay. 
The  grantee  was  his  second  wife,  and  the  plaintiff,  Elizabeth,  is  the 
only  living  child  of  the  first  marriage.  His  second  marriage  occurred 
in  1849,  and  his  death  in  1876.  The  defendant  Virginia  is  the  only 
child  of  the  last  marriage.  The  object  of  this  suit  is  to  set  aside  said 
deed,  on  the  ground  that  Nicholas  Broadley,  when  it  was  executed  and 
delivered,  was  old  and  infirm  and  had  not  mental  capacity  to  make  the 
deed.     *     *     * 

[The  finding  was  for  the  defendants  and  the  plaintiffs  appealed.] 
The  only  remaining  question  which  we  deem  it  necessary  to  notice, 
is  that  growing  out  of  the  exclusion  of  John  Wood  as  a  witness.  We 
do  not  think  that  the  court  erred  therein.  In  Joice  v.  Branson,  73  Mo. 
28,  which  was  a  suit  by  husband  and  wife  for  an  assault  and  battery 
committed  on  the  wife,  the  court  remarked  that  "the  husband  was 
properly  joined  with  the  wife  as  co-plaintiff,  and  this  because  the  stat- 
ute requires  it.  The  wife,  however,  was  the  substantial  party  to  the 
suit.  *  *  *  The  husband  was  clearly  incompetent  as  a  witness,  and 
error  was  committed  in  permitting  him  to  testify."  In  Paul  v.  Eeav- 
itt,  53  Mo.  595,  the  suit  was  on  the  promissory  note  of  the  wife,  to 
enforce  payment  thereof  out  of  her  separate  estate,  and  it  was  held 
that  being  only  a  nominal  party,  the  husband  was  not  a  competent 
witness.     So  in  Haerle  v.  Kreihn,  65  Mo.  202,  it  was  held  that  the 

6  8  Tlie  statute  at  tliis  time  provided  that  no  person  should  be  exchided  on 
account  of  interest  in  the  event,  and  that  a  party  might  be  examined  on  Ms 
own  behalf  or  on  behalf  of  any  other  party. 

«»  Part  of  opinion  omitted. 


Sec.  1)  COMPETENCY  197 

husband  is  not  a  competent  witness,  in  a  suit  to  which  he  and  his  wife 
are  parties,  unless  he  has  a  substantial  interest  in  the  controversy,  or 
acted  as  her  agent  in  the  transaction  which  is  the  foundation  of  the 
suit.  Steffen  v.  Bauer,  70  Mo.  405,  is  unlike  any  of  the  cases  above 
cited.  It  was  a  suit  to  set  aside  a  deed  executed  by  husband  and  wife, 
conveying  land,  the  title  of  which  was  vested  in  the  wife,  on  the  ground 
that  it  was  not  acknowledged  in  compliance  with  the  law,  and  that 
she  signed  under  compulsion  of  her  husband.  The  husband  was  of- 
fered as  a  witness.  The  court  excluded  him,  but  this  court  held  it 
error,  because  ''he  had  an  interest  in  the  issue  as  well  as  his  wife,  since 
in  the  event  of  her  death  he  would  be  tenant  by  curtesy,  and  also  had 
an  interest  in  his  wife's  land  during  coverture."  It  is  contended  by 
appellants'  counsel  that  the  excluded  witness  in  the  case  at  bar,  "had 
a  substantial  interest,  as  a  party  litigating  for  a  tenancy  by  the  cur- 
tesy initiate,"  relying  upon  Steffen  v.  Bauer,  supra.  But  in  the  lat- 
ter case  the  husband  had  a  vested  interest  in  his  wife's  land,  before  the 
conveyance,  and  that  interest  continued  if  the  deed  was  inoperative. 
In  the  case  at  bar,  the  witness  Wood  had  never  had  any  interest  in 
the  land  in  controversy.  His  wife  was  never  seized  of  the  land,  and 
could  never  be  until  a  judgment  in  her  favor  in  this  cause.  How  can 
it  be  said  that  he  was  tenant  by  the  curtesy  initiate  of  land  of  which 
his  wife  was  never  seized?  All  concurring,  the  judgment  is  af- 
firmed.^" 


DEXTER  v.  BOOTH. 
(Supreme  Judicial   Court  of  Massachusetts,  1861.    2  Allen,  559.) 

Chapman,  J.^^  This  being  an  action  against  an  executor  to  recover 
the  price  of  goods  purchased  by  the  testator's  wife,  and  delivered  to 
her,  some  of  which  it  is  conceded  were  not  necessaries,  the  plaintiff 
was  allowed  to  prove  by  the  testimony  of  the  widow  that  after  the 
purchase  the  husband  ratified  it  in  a  private  conversation  with  her. 
The  question  is  now  raised,  whether  she  was  a  competent  witness  to 
prove  such  a  conversation.  It  is  admitted  that,  at  common  law,  she 
is  excluded  on  considerations  of  policy  from  testifying  to  confidential 
conversations  between  herself  and  her  husband,  and  that  the  exclusion 
remains  unaffected  by  his  death.     The  question  is  whether  this  rule 

7  0  Where  both  husband  and  wife  are  parties,  and  each  has  a  substantial 
interest,  both  are  competent  under  similar  statutes.  Bell  v.  Hannibal  «&  St. 
J.  R.  Co.,  86  Mo.  599  (1885) ;  Suell  v.  Westport,  9  Gray  (Mass.)  321  (1857). 
But  a  spouse  not  a  party,  though  substantially  interested,  is  excluded.  Lay- 
son  V.  Cooper,  174  Mo.  211,  73  S.  W.  472,  97  Am.  St.  Rep.  545  (1903). 

In  Cauole  v.  Allen,  222  Pa.  1.56,  70  Atl.  1053  (1908),  an  action  against 
husband  and  wUe  for  an  alleged  trespass  of  the  wife,  it  was  held  that  the 
statute  qualifying  parties  did  not  make  the  husband  competent  for  the 
plaintiff. 

7  >■  Part  of  opinion  omitted. 


198  WITNESSES  (Ch.  2 

extends  to  his  ratification  of  a  purchase  made  by  her,  whicli  in  its 
nature  does  not  seem  to  be  confidential,  though  made  in  a  private  con- 
versation. In  England  this  question  is  settled.  In  Monroe  v.  Twistle- 
ton,  cited  in  Peake  on  Ev.  c.  3,  §  4,  and  Appendix,  Lord  Alvanley 
stated  the  doctrine  broadly,  that  a  wife,  who  has  been  divorced  by  an 
act  of  Parliament,  cannot  be  called  to  prove  any  conversation  which 
happened  between  herself  and  her  husband  during  the  coverture. 
In  Aveson  v,  Kinnaird,  6  East,  194,  Lord  Ellenborough  expressed  a 
doubt  whether  the  exclusion  was  so  broad,  and  said  he  considered  Lord 
Alvanley  as  having  mentioned  it  as  a  general  doctrine  that  trust  and 
confidence  shall  not  be  betrayed.  He  remarked  that,  as  such,  it  is 
sound  doctrine.  In  Doker  v.  Hasler,  Ry.  &  Mood.  198,  Best,  C.  J., 
refused  to  allow  the  widow  to  testify  to  a  conversation  with  her  hus- 
band— the  question  at  issue  being  whether  he  had  fraudulently  taken 
out  an  execution  to  protect  the  goods  of  a  debtor.  But  in  Beveridge  v. 
Minter,  1  C.  &  P.  364,  Abbott,  C.  J.,  admitted  the  widow  as  a  witness 
to  prove  her  husband's  admission  in  respect  to  a  debt  sued  for.  Thus 
far  the  authorities  are  contradictory.  They  are  reviewed,  and  the  doc- 
trine is  thoroughly  discussed,  in  O'Connor  v.  Marjoribanks,  4  Man. 
&  Gr.  435.  That  was  an  action  brought  by  an  administrator  to  recover 
goods  which  the  wife  had  pledged  to  the  defendant,  and  she  was 
offered  by  the  defendant  to  prove  that  her  husband  had,  in  a  private 
conversation,  authorized  her  to  pledge  them.  Tindal,  C.  J.,  and  Colt- 
man  and  Maule,  J  J.,  gave  separate  opinions,  each  declaring  that  she 
was  excluded,  and  that  considerations  of  policy  protect  all  private  con- 
versations between  husband  and  wife  from  disclosure,  not  only  during 
the  coverture,  but  after  it  has  ceased  to  exist.  If  the  exclusion  extends 
to  the  giving  of  an  authority  to  make  a  contract,  it  extends,  of  course, 
to  the  ratification  of  a  contract  made  by  her. 

In  the  same  year  that  O'Connor  v.  Marjoribanks  was  decided  (1842), 
the  Supreme  Court  of  New  York  had  occasion  to  consider  the  ques- 
tion, and  made  a  similar  decision,  overruling  the  case  of  Beveridge  v. 
Minter.  Babcock  v.  Booth,  2  Hill  (N.  Y.)  181,  38  Am.  Dec.  578.  And 
in  Osterhout  v.  Shoemaker,  3  Hill  (N.  Y.)  513,  Judge  Bronson  reaf- 
firmed the  decision.  In  Stein  v.  Bowman,  13  Pet.  209,  10  L.  Ed.  129, 
the  Supreme  Court  of  the  United  States  discussed  the  question  to  some 
extent,  but  did  not  decide  the  precise  point  raised  here.  In  Dicker- 
man  V.  Graves,  6  Cush.  308,  53  Am.  Dec.  41,  the  doctrine  of  exclusion 
is  recognized  by  this  court  as  resting  on  the  broad  ground  that  all  pri- 
vate conversations  between  husband  and  wife  should  be  regarded  as 
sacred.  But  the  case  did  not  require  a  decision  of  the  question.  The 
same  doctrine  is  held  in  Delaware  in  Gray  v.  Cole,  5  Har.  418.  The 
offer  was  to  prove  by  the  widow  an  admission  of  her  husband  that  he 
occupied  a  house  under  an  agreement  to  pay  rent.  The  evidence  was 
excluded. 

Our  legislature  has  by  statute  extended  the  competency  of  witnesses 
as  far  as  it  was  deemed  safe  to  do  so ;   and  where  it  makes  husbands 


Sec.  1)  COMPETENCY  199 

and  wives  admissible,  it  provides  that  "tliey  shall  not  be  allowed  to 
testify  as  to  private  conversations  with  each  other."  This  includes 
conversations  on  subjects  which  are  not  confidential  in  their  nature; 
and  adopts  the  doctrine  of  O'Connor  v.  Marjoribanks.'^^  q^^  g^  jg^Q^ 
c.  131,  §  14.  The  present  case  does  not  belong  to  the  particular  class 
provided  for  by  section  16,  namely,  actions  against  the  husband  grow- 
ing out  of  a  wrong  or  injury  done  by  him  to  the  wife,  or  his  neglect 
to  furnish  her  with  the  proper  means  of  support.  The  section  does  not, 
by  its  terms,  incjude  actions  brought  after  his  death  against  his  exec- 
utor or  administrator;  and  probably  the  reason  of  the  distinction  is, 
that  in  actions  against  himself  he  may  protect  his  interests  by  his  own 
testimony. 

As  she  should  not  have  been  allowed  to  testify  to  her  private  con-;^ 
versation  with  her  husband,  the  verdict  for  the  plaintiff  must  be  set 
aside.  But  as  to  any  other  facts,  she  was  a  competent  witness.  The 
cross-examination  of  her,  however,  by  which  the  defendant  sought  to 
show  that,  at  the  time  she  made  the  purchases  of  the  plaintiff,  she 
made  extravagant  purchases  of  jewelry  and  gold  watches  of  other 
persons,  related  to  irrelevant  matter.  For  if  the  fact  were  true,  it 
ought  not  to  affect  the  plaintiff's  claim.     The  judge  rightly  excluded 

j^        9|(       4(      4: 

72  In  this  case  Tindal,  C.  J.,  gave  the  following  reasons  for  excluding  the 
evidence  of  the  widow:  "*  ♦  *  And  It  appears  to  me  that,  of  the  two, 
Monroe  v.  Twisleton  [Peake,  Add.  Ca.  219  (1S02)]  is  the  sounder;  and  that 
the  doctrine  therein  laid  down  is  built  upon  the  general  rule  of  law,  which, 
subject  to  certain  well-known  exceptions,  is  this;  that  a  wife  never  can  be 
admitted  as  a  witness  either  for  or  against  her  husband;  she  cannot  be 
a  witness  for  him,  because  her  interest  is  precisely  identical  with  his;  nor 
against  him,  upon  grounds  of  public  policy,  because  the  admission  of  such 
evidence  would  lead  to  dissension  and  unhappiness,  and  possibly  to  perjury. 
There  are  cases  to  shew  that  this  intimate  relation  subsisting  between  the^ 
parties  is  not  to  be  considered  as  dissolved  by  death,  so  as  to  let  in  the 
evidence  of  either  party  as  to  transactions  occurring  during  their  joint 
lives;  but  we  are  asked  to  confine  the  rule  to  cases  where  the  communica- 
tions between  the  husband  and  wife  are  of  a  confidential  nature.  But  such  a 
limitation  of  the  rule  would  very  often  be  extremely  difficult  of  appUcation; 
and  would  Introduce  a  separate  issue  in  each  cause  as  to  whether  or  not 
the  communications  between  husband  and  wife  were  to  be  considered  of  a 
confidential  character." 

But  see  Lynn  v.  Hockadaj',  162  Mo.  Ill,  11  S.  W.  8S5,  85  Am.  St.  Rep.  4S0 
(1901),  holding  that,  in  a  suit  by  one  claiming  to  be  an  adopted  child  for  a 
distributive  share  of  the  estate,  the  widow  was  competent  to  prove  the  con- 
tract of  adoption. 


200  WITNESSES  (Ch,  2 

STUHLMULLER  v.  EWING,  Ex'x. 
(Court  of  Error  and  Appeals,  Mississippi,  1860.    39  Miss.  447.) 

In  the  court  below  the  widow  of  Ewing  was  admitted  to  testify,  as 
stated  in  the  brief  ^^  of  counsel  for  defendant  in  error.  The  plaintiff 
objected,  and  his  objection  being  overruled,  he  excepted.  Verdict  and 
judgment  for  defendant,  and  plaintiff  sued  out  this  writ  of  error. 

[Stuhlmuller  sued  the  estate  of  Jesse  H.  Ewing  on  an  account  for 
medical  services  rendered  said  Ewing  in  his  last  illness. 

On  the  trial,  the  widow  of  the  defendant  was  introduced  as  a  wit- 
ness for  defendant,  and  stated  that  plaintiff  and  her  deceased  husband 
had  a  conversation,  in  her  presence,  a  few  days  before  her  husband's 
death,  in  relation  to  said  account,  in  which  conversation  the  deceased 
said  to  plaintiff  that  the  contract  between  plaintiff  and  the  deceased 
was  that  Stuhlmuller  was  to  be  paid  if  he  cured  him  (Ewing),  and  if  he 
did  not  cure  him,  he  (plaintiff)  was  to  receive  nothing,  and  that  plain- 
tiff did  not  deny  or  dissent  from  that  statement;  also,  that  plaintiff 
did  not  cure  her  said  husband,  but  he  died  a  few  days  after  this  con- 
versation. 

The  counsel  for  plaintiff,  in  their  brief,  thus  state  the  question: 
"Can  the  wife,  after  her  husband's  death,  be  permitted  to  testify  in  be- 
half of  his  estate,  as  to  matters  which  transpired  during  the  marriage 
relation?" 

We  think  the  question  would  be  more  properly  stated  thus:  "Can 
the  widow  be  permitted  to  testify,  on  behalf  of  the  estate  of  her  de- 
ceased husband,  as  to  an  admission  made  by  the  plaintiff,  in  a  conver- 
sation between  plaintiff  and  her  husband,  in  his  lifetime,  in  her  pres- 
ence, touching  the  matter  in  controversy?"] 

Harris,  J.,  delivered  the  opinion  of  the  court. 

The  only  question  for  determination  here  is,  whether  the  wife,  after 
I  the  death  of  her  husband,  is  competent  to  testify  in  favor  of  his  es- 
tate against  a  creditor  as  to  conversations  between  her  husband  and 
such  creditor  in  relation  to  the  contract  upon  which  their  dealings  were 
based. 

By  the  common  law  the  incompetency  of  husband  and  wife  on  this 
subject  is  placed,  first,  on  their  identity  of  rights  and  interests,  and 
second,  on  principles  of  public  policy. 

In  its  spirit  and  extent  the  rule  is  analogous  to  that  which  excludes 
confidential  communications  made  by  a  client  to  his  attorney,  and 
therefore  at  common  law  the  wife,  after  the  death  of  the  husband,  has 
been  held  competent  to  prove  facts  not  in  their  nature  confidential,  nor 
coming  to  her  knowledge  from  the  husband  by  means  of  the  marital 
relation.     See  1  Greenleaf,  Ev.  §  338;   also  Coffin  v.  Jones,  13  Pick. 

7  3  The  part  of  the  statemeut  inclosed  in  brackets  has  been  taken  from 
the  brief  referred  to. 


Sec.  1)  COMPETENCY  201 

(Mass.)  445:  Williams  v.  Baldwin,  7  Vt.  506;  Cornell  v.  Vanarts- 
daleni  4  Pa.  364 ;  Wells  v.  Tucker,  3  Bin.  (Pa.)  366;  Saunders  v.  Hen- 
drix,  5  Ala.  224;  McGuire  v.  Maloney,  1  B.  Mon.  (Ky.)  224;  also  the 
numerous  authorities  collected  and  reviewed  in  the  very  able  argument 
of  the  counsel  for  defendant  in  error. 

Our  statute,  Rev.  Code,  c.  61,  arts.  190-193,  having  removed  the  in- 
competency arising  from  interest  and  her  testimony  not  falling  within 
the  class  of  confidential  communications,  which,  on  principles  of  pub- 
lic policy,  are  held  sacred,  there  remains  no  legal  obstacle  to  its  ad- 
missibility. In  the  case  of  Dunlap  et  al.  v.  Hearn,  37  Miss.  471,  these 
same  principles  are  recognized. 

Let  the  judgment  be  affirmed. 


Appeal  of  ROBE. 
(Supreme  Court  of  Pennsylvania,  18S1.    98  Pa.  501.) 

Appeal  of  John  Robb  and  others,  brothers  and  distributees,  under 
the  intestate  law,  of  David  Robb,  deceased,  from  the  decree  of  the 
said  court  dismissing  their  exceptions  to  the  adjudication  in  the  mat- 
ter of  the  distribution  of  the  balance  appearing  on  the  account  of  Jane 
Robb,  widow  and  administratrix  of  the  said  decedent. 

Before  the  auditor,  Mary  Steen,  a  sister  of  the  accountant,  presentecf 
a  claim  of  $1,582  for  wages  as  a  domestic  servant  from  October  1st, 
1870,  until  the  death  of  the  decedent,  September  10th,  1877.  She  al- 
leged an  express  contract  of  hiring  made  by  the  deceased  at  the  rate 
of  $3  per  week,  aftenvards  increased  to  $3.50  per  week.  The  claim- 
ant proved  the  performance  of  services  during  the  time  named,  and 
that  they  were  worth  at  least  $3.50  per  week. 

In  order  to  prove  the  alleged  express  contract,  the  claimant  called 
as  a  witness  Jane  Robb,  the  widow  and  administratrix,  who  was  ob- 
jected to  as  incompetent  to  testify  against  the  estate  of  her  deceased 
husband.  Objection  overruled.  Exception.  The  witness  testified  that 
at  the  time  Mary  Steen  was  employed  by  her  husband,  she  was  living 
with  a  Mrs.  Dean  in  Allegheny,  and  getting  $3  a  week  wages ;  that  her 
husband  (the  decedent)  said  that,  as  they  required  some  help,  they 
might  as  well  pay  her  as  a  stranger,  and  he  would  pay  her  whatever 
she  got  from  strangers;  that  Mary  Steen  accepted  that  arrangement, 
and  came  to  live  with  them;  thai;  Mrs.  Dean  afterwards  offered  her 
$3.50  a  week,  if  she  would  go  back  to  her,  and  that  Mr.  Robb  said 
she  was  worth  all  to  him  she  was  to  any  one  else,  and  he  agreed  to 
give  her  $3.50  a  week.  The  appellants  alleged  that  Miss  Steen,  being 
a  sister-in-law  of  the  decedent,  lived  with  him  and  was  provided  for 
as  a  member  of  his  family,  without  wages.  They  also  interposed  the 
statute  of  limitations  as  a  bar  to  that  part  of  the  claimant's  demand, 
which  accrued  more  than  six  years  prior  to  the  death  of  the  decedeni. 


202  WITNESSES  (Ch.  2 

The  court,  without  referring  to  this  objection,  decreed  to  the  claim- 
ant the  sum  of  $1,466.70,  being  the  entire  fund  for  distribution.  John 
Robb  and  others  took  this  appeal,  assigning  for  error  the  admission 
of  Jane  Robb  as  a  witness,  and  the  entering  of  said  decree. 

Mr.  Justice  SterrETt  ^*  delivered  in  the  opinion  of  the  court. 

It  is  contended  that,  on  grounds  of  public  policy,  the  widow  of  the 
decedent  was  incompetent  to  testify  to  the  contract  on  which  appel- 
lee's claim  for  wages  is  based;  that  the  disqualification  incident  to 
coverture  continued  after  the  death  of  her  husband,  and  is  not  limited 
to  what  occurred  in  their  confidential  intercourse,  but  extends  to  all 
facts  and  transactions  w^hich  came  to  her  knowledge  during  their  mar- 
ital relations.  While  the  principle,  thus  broadly  stated,  has  sometimes 
been  recognized,  the  better  and  more  generally  received  opinion  is  that 
the  disqualification  is  restricted  to  communications  of  a  confidential 
nature,  and  does  not  embrace  ordinary  business  transactions  and  con- 
versations in  which  others  have  participated.  This  appears  to  be  the 
principle  recognized  in  our  own  cases.  Cornell  v.  Vanartsdalen,  4  Pa. 
364 ;  Peiffer  v.  Lytle,  58  Pa.  386.  The  Orphans'  Court,  adhering  to 
this  view  of  the  law,  permitted  the  widow  to  testify  to  conversations 
between  her  husband,  herself  and  the  appellee,  which  resulted  in  a 
contract  of  hiring,  in  pursuance  of  which  the  latter  entered  the  service 
of  Mr.  Robb  in  October,  1869,  and  continued  therein  until  his  death  on 
September  10th,  1877.  These  conversations,  as  shown  by  the  testi- 
mony, are  not,  in  any  proper  sense  of  the  term,  confidential  communi- 
cations, and  there  was  therefore  no  error  in  permitting  the  witness 
to  testify.     *     *     * 

Decree  affirmed.'"' 


WARNER  V.  PRESS  PUB.  CO. 
(Court  of  Appeals  of  New  York,  1892.     132  N.  Y.  181,  30  N.  E.  393.) 

Parker,  J.^®  The  judgment  under  review  awards  to  the  plaintiff 
damages  against  the  defendant  for  publishing  in  the  New  York  World 
what  purported  to  be  a  brief  report  of  a  judicial  proceeding  which  con- 
tained matter  imputing  unchastity  to  her.  The  defenses  sought  to  be 
interposed  were  (1)  that  the  publication  was  privileged,  because  a  fair 
and  true  report  of  a  proceeding  in  court ;  (2)  that  it  was  true.    *    *    * 

7  4  Part  of  opinion  omitted.  ' 

7  5  But  see  Malilstedt  v.  Ideal  Lighting  Co.,  271  111.  154,  110  N.  E.  795, 
.\nn.  Cas.  1917D,  209  (1915),  excluding  wife  from  testifying  to  any  transac- 
tions between  a  third  person  and  her  husband,  though  the  latter  was  not  a 
party  to  the  action. 

The  same  extreme  view  appears  in  State  v.  Kodat,  158  Mo.  125,  59  S.  W. 
73.  51  L.  K.  A.  509,  81  Am.   St.  Rep.  292    (1900),   where  a  divorced   woman 
was  held  incompetent  to  prove  an  assault  by  her  former  husband  ou  a  third 
person. 
'78  Part  of  opinion  omitted. 


Sec.  1)  COMPETENCY  203 

Our  attention  is  called  to  but  one  other  exception.  The  libelous 
article  suggests  improper  relations  between  the  plaintiff  and  one  Smith, 
evidenced  by  letters  from  Smith  to  her.  She  denied,  not  only  the 
charge,  but  all  knowledge  of  the  letters.  The  defendant  asserted  the 
truth  of  the  charges  and  insinuations  contained  in  the  article,  and  m 
support  of  its  contention  called  the  husband  of  the  plaintiff,  to  whom 
the  following  questions  were  propounded :  "Question.  Had  you  any 
dispute  with  Mrs.  Warner  at  any  time  about  Smith?  Q.  Had  you 
any  conversation  with  Mrs.  Warner,  your  wife,  at  any  time,  in  rela- 
tion to  a  man  by  the  name  of  Frank  Smith  or  F.  Sidney  Smith  ?  " 
Objection  was  made  that  the  evidence  was  incompetent,  under  section 
831  of  the  Code  of  Civil  Procedure,  which  provides  that  "a  husband 
and  wife  shall  not  be  compelled,  or,  without  the  consent  of  the  other, 
if  living,  allowed,  to  disclose  a  confidential  communication  made  by 
one  to  the  other  during  marriage."  The  evidence  offered  could  have 
no  purpose  useful  to  the  defendant,  unless  it  tended  to  show  that,  dur- 
ing such  a  conversation  with  her  husband,  she  said  or  did,  or  omitted 
to  say  or  do,  something  from  which  it  might  be  inferred  that  there  ex- 
isted an  unlawful  intimacy  between  her  and  Smith.  A  conversation 
on  such  a  subject  between  husband  and  wife  seems  to  us  to  be  clearly 
within  the  protection  of  the  statute. 

The  appellant  calls  our  attention  to  the  decision  in  Parkhurst  v. 
Berdell,  110  N.  Y.  386-393,  18  N.  E.  123,  6  Am.  St.  Rep.  384,  in 
which  Judge  Earl,  in  speaking  for  the  court,  said :  "What  are  'con- 
fidential communications,'  within  the  meaning  of  the  section?  Clear- 
ly, not  all  communications  made  between  husband  and  wife  when 
alone.  *  *  *  They  are  such  communications  as  are  expressly  made 
confidential,  or  such  as  are  of  a  confidential  nature  or  induced  by  the 
marital  relations."  Clearly,  the  definition  given  does  not  exclude  such 
a  conversation  as  the  defendant  desired  to  prove  from  the  protection 
of  the  statute.  Its  nature  was  not  only  confidential,  but  it  was  ap- 
parently induced  by  the  marital  relation;  for  it  cannot  be  conceived 
that  such  a  topic  would  have  been  the  subject  of  discussion  but  for 
the  existence  of  such  relation  between  the  parties.  A  further  test  by 
which  to  determine  whether  a  communication  is  confidential  is  sug- 
gested by  the  learned  judge  in  characterizing  the  nature  of  the  con- 
versations sought  to  be  excluded  in  that  case.  He  said :  "They  were 
ordinary  conversations,  relating  to  matters  of  business,  which  there  is 
no  reason  to  suppose  he  would  have  been  unwilling  to  hold  in  the 
presence  of  any  person."  It  cannot  be  supposed  that  both  husband 
and  wife  would  have  been  willing  to  discuss  such  a  subject  in  the 
presence  of  other  persons,  or  would  have  consented  to  a  repetition  of 
the  conversation  by  either  party  to  it.  Its  nature,  and  the  relation  of 
the  parties,  forbade  the  thought  of  its  being  told  to  others,  and  the 
law  stamped  it  with  that  seal  of  confidence  which  the  parties  in  such 
a  situation  would  feel  no  occasion  to  exact.  The  wisdom  of  the  stat- 
ute was  never  more  apparent  than  in  this  case,  which  exhibits  a  worth- 


204  WITNESSES  (Ch.  2 

less  husband  in  the  attempted  role  of  a  destroyer  of  the  good  name 
of  the  mother  of  his  children,  because  she  sought,  in  the  name  of  the 
law,  to  compel  him  to  contribute  towards  her  support,  and  that  of  his 
children. 

The  judgment  should  be  affirmed.  All  concur,  except  Haight,  J., 
absent. 

Judgment  affirmed.''' 


COMMONWEALTH  v.  GRIFFIN. 

(Supreme   Judicial   Court  of   Massacliusetts,   1872.     110  Mass.    181.) 

Indictment  for  manslaughter.  At  the  trial,  before  Rockwell,  J.,  the 
Commonwealth  offered  to  prove  a  conversation  as  to  the  alleged  homi- 
cide between  the  defendant  and  his  wife,  while  confined  in  jail,  from 
the  testimony  of  two  officers  who  concealed  themselves  in  the  jail  for 
the  purpose  of  listening  to  the  conversation,  without  the  defendant 
and  his  wife  knowing  that  the  witnesses  or  any  other  persons  were  in 
hearing  of  them.  The  defendant  objected  to  the  admission  of  this 
testimony,  but  the  judge  admitted  it.  The  jury  returned  a  verdict  of 
guilty,  and  the  defendant  alleged  exceptions. 

By  the  Court.  There  is  no  rule  of  law  requiring  that  third  per- 
sons who  hear  a  private  conversation  between  husband  and  wife  shall 
be  restrained  from  introducing  it  in  their  testimony. 

Exceptions  overruled.'^* 


V.  Oi^FiciAL  Connection  with  the  Tribunai, 

PRIOR  V.  POWERS. 
(Court  of  King'.s  Bench,  1665.     1  Keb.  811.) 

In  an  action  upon  the  case  for  misusing  a  horse,  Orlaby  prayed  a 
new  trial,  because  the  jurors  in  Bedfordshire  being  divided  six  and 
six,  they  agreed  by  lot,  putting  two  sixpences  into  a  hat,  that  which 
the  bailiff  took,  that  way  the  verdict  should  go,  which  was  for  the 
plaintiff,  and  2d.  damages;  but  the  Court  denied  it,  because  it  ap- 
peared only  by  pumping  a  juryman,  who  confessed  all;  but  being 
against  himself,  it  was  not  much  regarded.  Also  the  Court  cannot 
grant  new  trial  without  punishing  the  jury,  which  cannot  be  by  this 
confession  against  themselves;  and  by  Windham,  This  is  as  good  a 
way  of  decision  as  by  the  strongest  body,  which  is  the  usual  way,  and 

7  7  See  section  828,  New  Yorlv  Code,  ante,  p.  170,  generally  qualifying  a 
party  and  the  spouse  of  a  party  to  testify. 

7  8  The  rule  is  the  same  in  other  privileged  relations.  Com.  v.  Everson, 
123  Ky.  330,  9G  S.  W.  460,  124  Am.  St  Rep.  365  (1906). 


Sec.  ])  COMPETENCY  20") 

is  suitable  in  such  cases  to  the  law  of  God.  Tvvisden  doubted  it  would 
be  of  ill  example,  and  in  Sir  Philip  Acton  Case,  on  such  verdict,  on 
fillip  of  counter,  a  new  trial  was  granted,  but  here  it  was  denied/'' 


REX  V.  SIMMONS. 
(Court  of   King's  Bench,  1752.     1   Wlls.  329.) 

The  Jew  was  indicted  for  putting  into  the  pocket  of  one  Ashley 
three  ducats,  with  a  malicious  intent  to  charge  him  with  felony,  and 
was  tried  before  Mr.  Justice  Foster  at  the  last  assizes  for  the  county 
of  Essex,  and  found  guilty  generally  as  to  all  the  counts  in  the  indict- 
ment. 

The  Court  was  moved  for  a  new  trial  upon  the  affidavits  of  all  the 
twelve  jurymen,  "that  they  only  intended  to  find  the  defendant  guilty 
of  putting  the  ducats  into  Ashley's  pocket,  and  did  not  intend  or  un- 
derstand that  they  had  found  him  guilty  of  putting  the  ducats  into 
his  pocket  with  an  intent  to  charge  him  with  felony;  and  Dodson, 
the  foreman,  swears  that  he  declared  at  the  Bar  to  the  Court,  when 
they  brought  in  their  verdict,  that  they  found  the  defendant  guilty  of 
putting  the  ducats  in  Ashley's  pocket,  but  without  any  intent." 

Mr.  Justice  Foster  reported  that,  after  the  evidence  was  gone 
through  and  summed  up,  the  jury  departed  from  the  Bar  to  consider 
of  their  verdict,  and  gave  a  private  verdict  at  his  lodgings  that  the 
defendant  was  guilty;  the  next  morning  they  all  appeared  in  Court 
at  the  Bar,  and  being  asked  if  they  stood  by  their  former  verdict,  they 
answered  they  found  the  defendant  guilty.  That  Mr.  Justice  Fos- 
ter then  told  them  that  there  were  four  counts  in  the  indictment, 
and  that  the  evidence  for  the  King  was  only  applicable  to  the  third, 
which  charged  the  defendant  with  maliciously  putting  three  ducats  into 
Ashley's  pocket  with  an  intent  to  charge  him  with  felony,  and  told 
them  that  the  intent  was  the  principal  thing  to  be  considered  by  them, 
and  that  if  they  believed  the  defendant  did  not  put  the  ducats  into 
Ashley's  pocket  with  an  intent  to  charge  him  with  felony,  they  must 

1 9  Apparently  the  earlier  practice  was  otherwise.  Metcalfe  v.  Deane.  Cro. 
Eliz.  1S9  (1590) :  "The  jury  were  gone  from  the  bar  to  confer  of  their  verdict. 
One  of  the  witnesses  that  was  before  sworn  on  the  part  of  Deane,  was  called 
by  tho  jurors;  and  he  recited  again  his  evidence  to  them,  and  after  they 
gave  their  verdict  for  Deane.  Complaint  being  made  to  the  Judge  of  the 
assises  of  this  misdemeanor,  he  examined  the  inquest,  who  confessed  all  the 
matter,  and  that  the  evidence  was  the  same  in  effect  that  was  given  before, 
et  uon  alia  nee  diversa.  This  matter  being  returned  upon  the  postea.  the 
opinion  of  the  Court  was,  that  the  verdict  was  not  good,  and  a  venire  facias 
de  novo  was  awarded.  Vide  35  Hen.  6,  "Examination,"  17.  11  Henry  4,  pi. 
17,  and  Brownlow  cited  a  precedent,  Leming  v.  Kempe,  accordingly." 

See,  also.  Watts  v.  Brains,  Cro.  Eliz.  778  (1600),  ante.  p.  3.  The  sug- 
gestion in  the  principal  case  seems  to  connect  the  matter  with  the  privilege 
against  self-incrimination  which  was  then  developing,  as  to  which  see  section 
3  of  this  chanter. 


206  WITNESSES  (Ch.  2 

acquit  him;  whereupon  the  foreman  at  the  Bar  said,  "We  find  him 
guiky  of  putting  the  ducats  into  his  pocket  without  any  intent."  But 
by  some  mistake,  or  misapprehension  of  the  Court,  or  the  jury,  or 
of  both,  a  general  verdict  was  taken  that  the  defendant  was  guiUy. 

After  this  report  the  jury  by  further  affidavits  swear  that  there 
was  a  very  great  noise  in  Court;  and  that  when  the  Judge  directed 
them  to  acquit  the  defendant,  if  they  beheved  he  did  not  put  the 
ducats  into  Ashley's  pocket  with  an  intent  to  charge  him  with  felony, 
they  did  not  hear  or  understand  him. 

This  question  having  been  debated  by  five  or  six  counsel  of  each 
side,  the  Court  gave  their  opinion  for  a  new  trial. 

Lee,  C.  J.^"  There  is  no  doubt  but  a  new  trial  may  be  granted  in  a 
criminal  case;  and  the  true  reason  for  granting  new  trials  is  for  the 
obtaining  of  justice;  but  to  grant  them  upon  the  affidavits  of  jury- 
men only,  must  be  admitted  to  be  of  dangerous  consequence.  It 
appears  to  me  from  the  report  of  my  brother,  and  the  affidavits  of 
Dodson  the  foreman,  that  this  verdict  was  taken  by  mistake,  for  he 
swears  that  he  declared  in  court  "that  they  did  not  find  the  defendant 
guilty  of  any  intent,"  and  therefore  this  is  not  granting  a  new  trial 
upon  any  after-thought  of  the  jury,  but  upon  what  the  foreman  Dod- 
son declared  at  the  Bar  when  they  gave  their  verdict.  I  am  very 
clear  in  my  opinion  there  ought  to  be  a  new  trial,  and  the  rather  as 
this  is  a  criminal  matter. 

Wright,  J.  New  trials  are  generally  supposed  to  be  more  ancient 
than  appears  in  the  books,  for  want  of  reporters  when  they  first  be- 
gan to  be  granted :  every  case  of  this  kind  must  depend  upon  its 
particular  circumstances ;  the  jury,  every  man  of  them,  come  here  and 
tell  us  that  they  were  not  understood,  for  that  they  declared  at  the 
Bar  they  did  not  find  the  defendant  guilty  of  any  intent.  My  brother 
reports  that  he  told  them  if  they  did  not  believe  the  intent,  they  must 
acquit  him;  the  jury  now  swear,  "they  did  not  hear  him;"  there- 
fore I  am  of  opinion  it  is  a  verdict  misentered,  contrar}^  to  the  dec- 
laration of  the  foreman,  not  contradicted  by  any  of  the  rest  at  the 
time  it  was  spoken  at  the  Bar;  and  that  it  is  most  plainly  no  after- 
thought, so  that  we  may  keep  clear  of  the  danger  of  granting  new 
trials  merely  upon  the  affidavits  of  jurymen;  I  think  this  man  has 
been  convicted  contrary  to  the  judgment  of  his  peers ;  that  he  has  not 
had  judicium  parium,  and  that  we  are  bound  to  grant  a  new  trial;  and 
this  being  a  criminal  case  is  more  to  be  favoured  as  to  a  new  trial, 
than  if  it  had  been  a  civil  case. 

New  trial  granted. 


81 


80  Opinions  of  Dennison  and  Foster,  JJ.,  omitted. 

81  See  Peters  v.  Fogarty,  55  N.  J.  Law,  386,  26  Atl.  855  (ISO.'?),  where  (he 
affidavits  of  jurors  were  received  to  prove  luistalie  in  recording  tne  verdict. 


Sec.  1)  COMPETENCY  207 

DUNBAR  V.  PARKS. 
(Supreme   Court   of   Judicature   of    Verniout,    1S02.     2    Tyler,    217.) 

The  plaintiff  brought  trover  for  a  horse.  On  the  trial  of  the  issue 
to  the  jury,  after  the  examination  of  all  the  witnesses  on  the  stand,  and 
before  argument,  Mr.  Sias,  one  of  the  jurors  observed  to  the  Court, 
that  he  knew  some  matters  which  had  relation  to  the  cause ;  and  re- 
quested information  whether  it  would  be  improper  for  him  to  com- 
municate his  knowledge  to  his  brethren  of  the  panel  after  they  were 
charged,  and  should  retire  to  the  jury-room. 

Curia.  As  the  juror  had  a  doubt  in  his  mind  relative  to  his  con- 
duct, it  is  highly  commendable  in  him  to  apply  to  the  Court  for  ad- 
vice.    Let  the  witness's  oath  be  administered  to  him. 

He  was  accordingly  sworn,  and  testified,  standing  in  the  jury-box, 
to  a  material  fact. 

Upon  his  cross-examination, 

John  Mattocks,  counsel  for  the  plaintiff,  put  a  question  to  the  wit- 
ness, the  answer  to  which  would  indicate  for  which  party  as  a  juror 
he  would  eventually  decide. 

Sed  Per  Curiam.  This  must  not  be  suffered.  Examine  the  wit- 
ness solely  as  to  facts,  and  such  as  came  to  his  knowledge  before  he 
was  sworn  as  a  juror.^^ 


MURDOCK  V.  SUMNER. 
(Supreme  Judicial  Court  of  Massachusetts,  1839.     22  Pick.  1.56.) 

Trover  for  divers  goods  attached  by  the  defendant  as  sheriff  of 
Suffolk.  A  verdict  had  been  found  for  the  plaintiff,  which  the  defend- 
ant now  moved  to  set  aside,  upon  the  affidavits  of  the  jurors,  that 
in  assessing  the  damages  they  proceeded  under  a  mistake. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  Court.  This  is  an  appli- 
cation by  the  defendant,  to  set  aside  the  verdict  and  grant  a  new  trial, 
on  the  affidavit  of  the  jurors,  that  in  the  assessment  of  damages  they 
made  a  mistake.  The  mistake  alleged  was  this,  that  in  estimating  the 
value  of  the  goods  which  were  the  subject  of  controversy,  one  witness 
only  was  examined,  who  testified  as  to  tlie  quality,  condition  and 
cost  of  the  goods,  and  to  his  opinion  that  they  were  worth  the  cost; 
that  the  jury  believed  that  they  were  bound  by  this  opinion,  where- 
as if  they  had  felt  at  liberty  to  exercise  their  own  judgment,  they  would 
have  estimated  them  at  a  lower  rate. 

Affidavits  of  jurors  are  to  be  received  with  great  caution.  The  rule 
is  inflexible,  that  they  will  not  be  received  to  show  misconduct  or  ir- 

82  It  is  generally  thought  that  the  judge  trying  a  case  ought  not  to  be  ad- 
mitted as  a  witness.  For  an  elaborate  consideration  of  the  matter,  see 
Morss  V.  Morss,  11  Barb.  (N.  Y.)  510  (1S51). 


208  WITNESSES  (Ch.  2 

regularity  on  the  part  of  the  jury  or  any  of  them.  And  the  general 
rule  is,  that  affidavits  of  jurors  will  not  be  received  to  prove  any  mis- 
take of  the  evidence  or  misapprehension  of  the  law,  on  the  part  of  the 
jury.  Different  jurors,  according  to  their  different  degrees  of  intel- 
ligence, of  attention  and  habits  of  thought,  may  entertain  dift'erent 
views  of  the  evidence,  and  of  the  instructions  of  the  court  in  point  of 
law.  But  the  verdict,  in  which  they  all  concur,  must  be  the  best  evi- 
dence of  their  belief,  both  as  to  the  fact  and  the  law,  and  therefore 
must  be  taken  to  be  conclusive.^^  Jackson  v.  .Williamson,  2  T.  R. 
281;  Owen  v.  Warburton,  4  Bos.  &  Pul.  326;  Ex  parte  Caykendoll, 
6  Cow.  (N.  Y.)  53 ;  Napier  v.  Daniel,  3  Bingh.  New  Cases,  77.  The 
rule  is  founded  upon  a  consideration  of  the  great  danger,  practically, 
of  listening  to  suggestions  of  misapprehension  and  mistake  in  the  ju- 
ries. 

The  Court  are  not  prepared  to  say  that  this  is  a  rule  without  excep- 
tion ;  there  may  be  cases  of  manifest  mistake  in  computation,  or  other 
obvious  error,  where  there  are  full  means  of  detecting  and  correcting  it, 
where  it  would  be  proper  to  interfere. 

But  in  the  present  case,  the  evidence  having  been  heard  de  bene  esse, 
the  Court  are  of  opinion,  that  the  verdict  ought  not  to  be  set  aside. 
It  was  an  estimate  of  the  value  of  goods.  The  facts  were  stated  by  the 
witness,  and  also  his  opinion.  But  the  jurors  had  full  opportunity  to 
exercise  their  own  judgment  on  the  facts,  and  form  their  own  opinion 
of  the  value.  If  indeed  any  juror  knew  any  fact  bearing  upon  the 
subject,  such  as  the  state  and  condition  of  the  particular  parcel  of 
goods,  especially  if  it  differed  from  the  facts  testified,  he  should  have 
stated  it  and  testified  to  it  in  open  court,  that  the  court  might  judge  of 
the  competency  of  the  evidence,  that  the  parties  might  fully  examine 
the  witness,  and  that  the  counsel  and  court  might  have  under  their 
consideration  the  whole  of  the  evidence  upon  which  the  verdict  is 
formed.  It  is  not  suggested  that  the  jury  acted  upon  such  facts.  But 
the  jury  may  properly  exercise  their  own  judgment  and  apply  their 
own  knowledge  and  experience  in  regard  to  the  general  subject  of 
inquiry.  In  the  present  case,  the  jury  were  not  bound  by  the  opinion 
of  the  witness;  they  might  have  taken  the  facts  testified  by  him,  as 
to  the  cost,  quality  and  condition  of  the  goods,  and  come  to  a  different 
opinion  as  to  their  value. 

It  is  said  that  the  jury  understood  the  court  to  instruct  them,  that 
they  must  go  by  the  testimony.  This,  as  a  general  proposition,  was 
true-and  correct.     If  there  was  any  danger  that  the  jury  would  be  mis- 

83  It  has  been  suggested  that  the  rule  here  involved  is  much  the  same  as 
in  certain  contract  cases  where  evidence  of  mistake  is  rejected  because  the 
contract  is  binding  in  spite  of  the  mistalce,  and  hence  that  the  question  is 
as  to  the  effect  of  a  verdict  rather  than  as  to  a  prohibited  means  of  showing 
a  mistake.  But  this  is  hardl.v  satisfactory,  in  view  of  the  practise  of  grant- 
ing now  trials  where  the  court  is  satisfied  that  the  .iur.v  have  n:is1",Uen  ei- 
;her  the  law  or  the  facts.    Briglit  v.  Eynou,  1  Burr.  390  (1757). 


Sec.  1)  COMPETENCY  200 

led  by  the  f^enerality  of  this  direction,  the  counsel  should  have  re- 
quested the  judge  to  modify  it  and  make  it  more  precise,  as  applicable 
to  the  evidence  in  the  particular  case,  by  informing  the  jury  that  they 
were  not  bound  by  the  opinions  of  the  witness,  but  only  by  such  facts 
as  upon  the  testimony  they  considered  proved,  the  jury  exercising 
their  own  judgment  upon  the  credit  of  the  witness,  and  the  weight  of 
the  evidence.  Besides,  if  the  defendant  considered  the  value  of  the 
goods  an  important  point,  it  was  open  to  him  to  offer  other  and  more 
satisfactory  evidence  upon  that  point ;  but  he  gave  no  evidence  on  the 
subject,  relying  on  that  given  by  the  plaintiff. 
Motion  dismissed. 


STANDEWICK  v.  HOPKINS. 

(Court  of  Queen's  Bench,  1844.     2  Dowl.  &  L.  502.) 

This  was  an  action  which  had  been  tried  before  the  undersheriff  of 
Somersetshire,  and  a  verdict  found  for  the  plaintiff.  An  application 
had  been  made  in  the  vacation  to  a  Judge  at  Chambers  to  stay  execu- 
tion, on  affidavits  imputing  misconduct  and  gross  partiality  on  the  part 
of  some  of  the  jurors,  which  was  granted.  A  rule  nisi  was  obtained 
in  the  present  term  for  a  new  trial.  It  was  drawn  up  on  reading  the 
affidavits  filed  at  Chambers. 

J.  W.  Smith  shewed  cause,  and  proposed  to  read  the  affidavits  of 
three  jurors,  denying  and  explaining  the  misconduct  alleged. 

Prideaux,  in  support  of  the  rule,  objected,  first,  that  no  new  affida- 
vits having  been  used  in  obtaining  the  rule  nisi,  the  plaintiff"  could  not 
use  affidavits  on  shewing  cause,  Atkins  v.  Meredity,  4  Dowl.  658 ;  and 
secondly,  that  inasmuch  as  the  affidavit  of  a  juror  could  not  be  received 
to  impugn  a  verdict  given,  Straker  v,  Graham,  7  Dowl.  223  (see  s.  c,  4 
M.  &  W.  721),  it  would  be  unfair  to  permit  him  to  make  an  affidavit 
to  support  it  in  any  way. 

Patteson,  J.  As  a  general  rule,  the  affidavits  of  jurymen  cannot 
be  received  to  support  or  impugn  their  verdict;  but,  in  the  present 
instance,  it  is  sought  to  use  them  in  answer  to  affidavits  imputing  gross 
misconduct  to  them ;  and,  I  think,  that  every  principle  of  natural  jus- 
tice demands  that  they  should  be  heard  to  repel  the  imputations  thus 
cast  on  them.  With  respect  to  the  other  objection,  it  is  true  that  the 
affidavits  which  are  used  in  support  of  the  rule  have  been  already  read 
at  Chambers ;  but  the  present  rule  is  drawn  up  on  reading  them,  and 
I  therefore  think  the  opposite  party  may  use  affidavits  in  shewing 
cause. 

The  rule  was  afterwards  made  absolute,  on  the  ground  of  the  ver- 
dict being  against  evidence. 
Rule  absolute. 
HiNT.Ev. — 14 


210  WITNESSES  (Cll.  2 


McDonald  et  al.  v.  pless. 

(Supreme  Court  of  the  United  States,  1915.     238  U.  S.  264,  35  Sup.  Ct.  783, 

59  L.  Ed.  1300.) 

Mr.  Justice  Lamar  ^*  delivered  the  opinion  of  the  court: 

Pless  &  Winbourne,  attorneys  at  law,  brought  suit  in  the  superior 
court  of  McDowell  county,  North  Carolina,  against  McDonald  to 
recover  $4,000  alleged  to  be  due  them  for  legal  services.  The  case 
was  removed  to  the  then  circuit  court  of  the  United  States  for  the 
western  district  of  North  Carolina.  There  was  a  trial  in  which  the 
jury  returned  a  verdict  for  $2,916  in  favor  of  Pless  &  Winbourne. 
The  defendant  McDonald  moved  to  set  aside  the  verdict  on  the  ground 
that  when  the  jury  retired  the  foreman  suggested  that  each  juror 
should  write  down  what  he  thought  the  plaintiffs  were  entitled  to 
recover,  that  the  aggregate  of  these  amounts  should  be  divided  by  12, 
and  that  the  quotient  should  be  the  verdict  to  be  returned  to  the  court. 
To  this  suggestion  all  assented. 

The  motion  further  averred  that  when  the  figures  were  read  out 
it  was  found  that  one  juror  was  in  favor  of  giving  plaintiffs  nothing, 
eight  named  sums  ranging  from  $500  to  $4,000,  and  three  put  down 
$5,000.  A  part  of  the  jury  objected  to  using  $5,000  as  one  of  the 
factors,  inasmuch  as  the  plaintiffs  were  only  suing  for  $4,000.  But 
the  three  insisted  that  they  had  as  much  right  to  name  a  sum  above 
$4,000  as  the  others  had  to  vote  for  an  amount  less  than  that  set  out 
in  the  declaration.  The  various  amounts  were  then  added  up  and  di- 
vided by  12.  But  by  reason  of  including  the  three  items  of  $5,000, 
the  quotient  was  so  much  larger  than  had  been  expected  that  much 
dissatisfaction  with  the  result  was  expressed  by  some  of  the  jury. 
Others,  however,  insisted  on  standing  by  the  bargain,  and  the  protest- 
ing jurors  finally  yielded  to  the  argument  that  they  were  bound  by 
the  previous  agreement,  and  the  quotient  verdict  was  rendered  ac- 
cordingly. 

The  defendant  further  alleged  in  his  motion  that  the  jurors  refused 
to  file  an  affidavit,  but  stated  that  they  were  willing  to  testify  to  the 
facts  alleged,  provided  the  court  thought  it  proper  that  they  should  do 
so.  At  the  hearing  of  the  motion  one  of  the  jurors  was  sworn  as  a 
witness,  but  the  court  refused  to  allow  him  to  testify  on  the  ground 
that  a  juror  was  incompetent  to  impeach  his  own  verdict.  That  ruling 
was  affirmed  by  the  court  of  appeals.  124  C.  C.  A.  131,  206  Fed.  263. 
The  case  was  then  brought  here  by  writ  of  error. 

On  the  argument  here  it  was  suggested  that  it  was  not  necessary  to 
consider  the  question  involved  as  an  original  proposition,  since  the 
decision  of  the  Federal  court  was  in  accordance  with  the  rule  in  North 
Carolina  (Purcell  v.  Southern  R.  Co.,  119  N.  C.  739,  26  S.  E.  161), 

8*  Part  of  opinion  omitted. 


Sec.  1)  COMPETENCY  211 

and  therefore  binding  under  Rev.  Stat.  §  914,  Comp.  St.  §  1537,  which 
requires  that  the  practice,  pleadings  and  forms  and  modes  of  procedure 
in  the  Federal  courts  shall  conform  as  near  as  may  be  to  those  ex- 
isting in  the  state  within  which  such  Federal  courts  are  held.     *    *    * 

But  though  Rev.  Stat.  §  914,  does  not  make  the  North  Carolina  de- 
cisions controlling  in  the  Federal  court  held  in  that  state,  we  recognize 
the  same  public  policy  which  has  been  declared  by  that  court,  by  those 
in  England,  and  most  of  the  American  states.  For  while  by  statute 
in  a  few  jurisdictions,  and  by  decisions  in  others,  the  affidavit  of  a 
juror  may  be  received  to  prove  the  misconduct  of  himself  and  his  fel- 
lows, the  weight  of  authority  is  that  a  juror  cannot  impeach  his  own 
verdict.  The  rule  is  based  upon  controlling  considerations  of  a  pub- 
lic policy  which  in  these  cases  chooses  the  lesser  of  two  evils.  When 
the  affidavit  of  a  juror,  as  to  the  misconduct  of  himself  or  the  other 
members  of  the  jury,  is  made  the  basis  of  a  motion  for  a  new  trial, 
the  court  must  choose  between  redressing  the  injury  of  the  private 
litigant  and  inflicting  the  public  injury  which  would  result  if  jurors 
were  permitted  to  testify  as  to  what  had  happened  in  the  jury  room. 

These  two  conflicting  considerations  are  illustrated  in  the  present 
case.  If  the  facts  were  as  stated  in  the  affidavit,  the  jury  adopted  an 
arbitrary  and  unjust  method  in  arriving  at  their  verdict,  and  the  de- 
fendant ought  to  have  had  relief,  if  the  facts  could  have  been  proved 
by  witnesses  who  were  competent  to  testify  in  a  proceeding  to  set 
aside  the  verdict.  But  let  it  once  be  established  that  verdicts  solemnly 
made  and  publicly  returned  into  court  can  be  attacked  and  set  aside 
on  the  testimony  of  those  who  took  part  in  their  publication  and  all 
verdicts  could  be,  and  many  would  be,  followed  by  an  inquiry  in  the 
hope  of  discovering  something  which  might  invalidate  the  finding. 
Jurors  would  be  harassed  and  beset  by  the  defeated  party  in  an  ef- 
fort to  secure  from  them  evidence  of  facts  which  might  establish  mis- 
conduct sufficient  to  set  aside  a  verdict.  If  evidence  thus  secured 
could  be  thus  used,  the  result  would  be  to  make  what  was  intended 
to  be  a  private  deliberation,  the  constant  subject  of  public  investiga- 
tion; to  the  destruction  of  all  frankness  and  freedom  of  discussion 
and  conference. 

The  rule  on  the  subject  has  varied.  Prior  to  1785  a  juror's  testi- 
mony in  such  cases  was  sometimes  received,  though  always  with  great 
caution.  In  that  year  Lord  Mansfield,  in  Vaise  v.  Delaval,  1  T.  R. 
11,  refused  to  receive  the  affidavit  of  jurors  to  prove  that  their 
verdict  had  been  made  by  lot.  That  ruling  soon  came  to  be  almost 
universally  followed  in  England  and  in  this  country.  Subsequently, 
by  statute  in  some  states,  and  by  decisions  in  a  few  others,  the  juror's 
affidavit  as  to  an  overt  act  of  misconduct,  which  was  capable  of  be- 
ing controverted  by  other  jurors,  was  made  admissible.  And,  of 
course,  the  argument  in  favor  of  receiving  such  evidence  is  not  only 
very  strong,  but  unanswerable — when  looked  at  solely  from  the  stand- 


212  WITNESSES  (Ch.  2 

point  of  the  private  party  who  has  been  wronged  by  such  misconduct. 
The  argument,  however,  has  not  been  sufficiently  convincing  to  in- 
duce legislatures  generally  to  repeal  or  to  modify  the  rule.  For,  while 
it  may  often  exclude  the  only  possible  evidence  of  misconduct,  a 
change  in  the  rule  "would  open  the  door  to  the  most  pernicious  arts 
and  tampering  with  jurors."  "The  practice  would  be  replete  with 
dangerous  consequences."  "It  would  lead  to  the  grossest  fraud  and 
abuse"  and  "no  verdict  would  be  safe."  Cluggage  v.  Swan,  4  Bin.  155, 
5  Am.  Dec.  400;  Straker  v.  Graham,  4  Mees.  &  W.  721,  7  Dowl.  P. 
C.  223,  1  Horn  &  H.  449,  8  L.  J.  Exch.  N.  S.  86. 

There  are  only  three  instances  in  which  the  subject  has  been  before 
this  court.  In  United  States  v.  Reid,  12  How.  361,  366,  13  L,.  Ed. 
1023,  1025,  the  question,  though  raised,  was  not  decided  because  not 
necessary  for  the  determination  of  the  case.  In  Mattox  v.  United 
States,  146  U.  S.  140,  148,  36  E.  Ed.  917,  920,  13  Sup.  Ct.  50,  such 
evidence  was  received  to  show  that  newspaper  comments  on  a  pend- 
ing capital  case  had  been  read  by"  the  jurors.  Both  of  those  decisions 
recognize  that  it  would  not  be  safe  to  lay  down  any  inflexible  rule 
because  there  might  be  instances  in  which  such  testimony  of  the 
juror  could  not  be  excluded  without  "violating  the  plainest  principles 
of  justice."  This  might  occur  in  the  gravest  and  most  important  cas- 
es ;  and  without  attempting  to  define  the  exceptions,  or  to  determine 
how  far  such  evidence  might  be  received  by  the  judge  on  his  own  mo- 
tion, it  is  safe  to  say  that  there  is  nothing  in  the  nature  of  the  present 
case  warranting  a  departure  from  what  is  unquestionably  the  general 
rule,  that  the  losing  party  cannot,  in  order  to  secure  a  new  trial,  use 
the  testimony  of  jurors  to  impeach  their  verdict.  The  principle  was 
recognized  and  applied  in  Hyde  v.  United  States,  225  U.  S.  347,  56  L. 
Ed.  1114,  32  Sup.  Ct.  793,  Ann.  Cas.  1914A,  614,  which,  notwith- 
standing an  alleged  difference  in  the  facts,  is  applicable  here. 

The  suggestion  that,  if  this  be  the  true  rule,  then  jurors  could  not  be 
witnesses  in  criminal  cases,  or  in  contempt  proceedings  brought  to 
punish  the  wrongdoers,  is  without  foundation.  For  the  principle  is 
limited  to  those  instances  in  which  a  private  party  seeks  to  use  a  juror 
as  a  witness  to  impeach  the  verdict. 

Judgment  affirmed.*'' 

80  That  the  rule  does  not  exclude  such  proof  of  misconduct  of  a  .inror 
when  separated  from  the  others,  see  Heftron  v.  Gallupe,  55  Me.  563  (1SG8). 

For  a  very  exhaustive  review  of  the  English  and  American  cases,  see 
Woodward    v.  Leavitt,  107  Mass.  453,  9  Am.  Kep.  49  (1871). 


Sec.  1)  COMPETENCY  213 

MURPHY  V.  STATE. 
(Supreme  Court  of  Wisconsin,  1905.     124  Wis.  G35,  102  N.  W.  10S7.) 

Error  to  review  a  conviction  on  a  charge  of  bribery.    The  facts  are 
sufficiently  set  out  in  the  opinion. 

SiERECKER,  J.^"  *  *  *  Error  is  assigned  upon  the  ruHng  of  the 
trial  court  to  the  effect  that  the  proceedings  before  a  grand  jury  are 
privileged  from  being  adduced  before  it  as  evidence  by  the  defendant 
for  the  purpose  of  showing  his  immunity  under  section  4078,  Rev.  St. 
1898,  as  amended  by  chapter  85,  p.  106,  Laws  1901.  The  amended 
section  provides  that  no  witness  or  party  in  the  actions,  proceedings, 
or  examinations  therein  specified  ''shall  be  excused  from  testifying  on 
the  ground  that  his  testimony  may  expose  him  to  prosecution  for  any 
crime,  misdemeanor  or  forfeiture.  But  no  person  shall  be  prosecuted 
or  be  subjected  to  any  penalty  or  forfeiture  for  or  on  account  of  any 
transaction,  matter  or  thing  concerning  which  he  may  testify,  or  pro- 
duce evidence,  documentary  or  otherwise,  in  such  action,  proceeding 
or  examination,  except  a  prosecution  for  perjury  committed  in  giving 
such  testimony."  It  is  not  questioned  but  that  this  statute  gives  the 
defendant  an  important  right,  in  that  he  may  assert  a  statutory  ex- 
emption from  punishment  by  way  of  defense  in  a  criminal  prosecution. 
An  act  of  Congress  of  like  import  v/as  held  valid  legislation,  and  it 
was  decided  that  under  its  terms  witnesses  and  parties  could  be  com- 
pelled to  give  testimony  of  a  self-incriminating  character,  if  the  pro- 
visions of  the  statute  afforded  immunity  from  prosecution  for  the 
offense  to  which  the  testimonv  related.  Brown  v.  Walker,  161  U.  S. 
591,  16  Sup.  Ct.  644,  40  L.  Ed.  819. 

The  defendant  interposed  a  plea  in  bar  claiming  immunity  from  pun- 
ishment for  the  oft'ense  charged  in  the  information  upon  the  ground 
that  he  appeared  before  the  grand  jury  of  Milwaukee  county  while 
it  was  in  session  in  the  mondi  of  January,  1902,  and  gave  testimony  as 
to  the  transaction,  matter,  and  things  alleged  in  the  information.  Upon 
the  trial  of  the  special  issue  raised  by  this  plea  he  attempted  to  com- 
pel the  production  of  the  minutes  of  the  proceedings  of  the  grand  jury 
for  the  purpose  of  offering  them  as  original  evidence  to  sustain  the 
allegations  of  his  plea  in  bar,  but  the  court  ruled  these  minutes  as  well 
as  the  testimony  of  members  of  the  grand  jury  and  the  district  at- 
torney to  be  privileged  under  the  rule  of  secrecy  applied  to  proceedings 
before  a  grand  jury.  The  purpose  of  such  secrecy  is  embodied  in  the 
terms  of  their  oath  of  ofifice,  and  was  designed  to  further  an  eflficient 
and  effective  administration  of  the  criminal  law.  The  authorities  as 
to  whether  testimony  of  the  proceedings  before  a  grand  jury  is  com- 
petent as  original  evidence  upon  a  trial  in  court  are  not  uniform.    They 

*•  Part  of  opinion  omitted. 


214  WITNESSES  (Ch.  2 

unite  in  declaring  that  it  can  at  no  time  be  shown  how  the  individual 
jurors  voted,  or  what  was  said  by  them  during  their  deliberations,  for 
the  reason  that  a  disclosure  thereof  could  not  serve  any  purpose  of 
justice.  In  Commonwealth  v.  Mead,  12  Gray  (Mass.)  167,  71  Am. 
Dec.  741,  the  court,  speaking  on  this  subject,  through  Justice  Bigelow 
declares :  "The  reasons  on  which  the  sanction  of  secrecy  which  the 
common  law  gives  to  proceedings  before  grand  juries  is  founded  are 
said  in  the  books  to  be  threefold :  One  is  that  the  utmost  freedom  of 
disclosure  of  alleged  crimes  and  offenses  by  prosecutors  may  be  se- 
cured. A  second  is  that  perjury  and  subornation  of  perjury  may  be 
prevented  by  withholding  the  knowledge  of  facts  testified  to  before  the 
grand  jury,  which,  if  known,  it  would  be  for  the  interest  of  the  ac- 
cused or  their  confederates  to  attempt  to  disprove  by  procuring  false 
testimony.  The  third  is  to  conceal  the  fact  that  an  indictment  is  found 
against  a  party  in  order  to  avoid  the  danger  that  he  may  escape  and 
elude  arrest  upon  it  before  the  presentment  is  made." 

All  of  the  reasons  practically  disappear  after  the  arrest  of  the 
accused,  when  he  is  put  upon  his  trial  in  court.  The  only  one  of  these 
grounds  which  could  possibly,  in  a  measure,  subsist,  is  the  danger  of 
subornation,  and  this  is  quite  effectually  disregarded  in  modern  crimi- 
nal law,  which  approves  the  right  and  the  procedure  by  which  the 
accused,  in  fairness,  is  informed  before  the  trial  of  the  witnesses  the 
state  relies  upon  to  establish  the  case.  An  examination  of  the  adjudi- 
cations leads  us  to  the  conclusion  that  evidence  by  grand  jurors  of  the 
statements  made  before  them  by  witnesses  and  parties  is  competent 
upon  trials  in  courts,  and  that  the  weight  of  authority  sustains  the 
practice  whenever  the  trial  court  deems  it  necessary  for  the  ascertain- 
ment of  truth  and  in  furtherance  of  justice.  Of  the  leading  authorities 
on  this  subject  we  cite  the  following:  State  v.  Benner,  64  Me.  267; 
Izer  V.  State,  77  Md.  110,  26  Atl.  282;  Commonwealth  v.  Mead,  12 
Gray  (Mass.)  167,  71  Am.  Dec.  741;  Commonwealth  v.  Hill,  11  Cush. 
(Mass.)  137;  People  v.  Naughton,  38  How.  Prac.  (N.  Y.)  430;  Wig- 
more  on  Evidence,  §  2360-3;    and  Rice  on  Evidence,  vol.  4,  p.  412. 

It  is  urged  that  the  rule  of  the  common  law  as  to  the  competency  of 
this  class  of  evidence  cannot  control,  because  the  subject  is  regulated 
by  statute,  which  excludes  it  except  as  therein  made  competent.  The 
statutory  provisions  on  the  subject  are  embodied  in  sections  2553-2555. 
An  examination  of  these  sections  shows  that,  when  the  court  so  or- 
ders, grand  jurors  and  officers  attending  on  them  are  forbidden  to  make 
disclosure  of  the  fact  that  an  indictment  for  felony  has  been  found 
until  the  arrest  of  the  offender;  that  the  jurors  are  not  allowed  to 
state  or  testify  in  what  manner  they  may  have  voted,  or  what  opinion 
was  expressed  by  any  of  them,  on  any  question  before  them ;  and  that 
the  members  of  the  jury  may  be  required  to  testify  as  to  whether  the 
testimony  of  a  witness  examined  before  them  is  consistent  with  or  dif- 
fers from  his  evidence  before  a  court;    and  in  prosecutions  for  per- 


Sec.  1)  COMPETENCY  215 

jui-y  of  the  person  who  appeared  and  testified  before  them  they  may 
be  required  to  disclose  the  testimony  given  before  them.  It  will  be 
observed  that  the  statutes  ^^  are  declaratory  in  part  of  the  rules  which 
had  been  established  by  the  courts  as  to  the  competency  of  such  evi- 
dence in  the  administration  of  the  criminal  law,  but  they  in  no  way 
indicate  that  it  was  thereby  intended  to  interfere  with  the  established 
practice,  which  was  to  the  effect  that  it  is  proper  to  examine  a  grand 
juror  upon  a  trial  in  court  as  to  what  a  witness  testified  to  before 
the  grand  jury,  when  not  objectionable  under  the  ordinary  rules  of 
evidence,  and  when  the  ends  of  justice  require  it.  The  Supreme 
Court  of  the  state  of  Florida,  in  construing  their  statute  on  the  sub- 
ject, which  is  the  same  in  terms  and  phraseology  as  the  sections  above 
mentioned,  held  that  they  in  no  way  abrogated  the  common-law  rules 
which  prevailed  when  the  statute  was  adopted.  See  Jenkins  v.  State, 
35  Fla.  7Z7,  18  South.  182,  48  Am.  St.  Rep.  267,  and  cases  cited; 
Hinshaw  v.  State,  147  Ind.  334,  47  N.  E.  157.  Upon  these  grounds  we 
must  hold  that  the  court  erred,  in  holding  that  the  evidence  of  grand 
jurors,  the  district  attorney,  and  the  minutes  of  the  grand  jury's  pro- 
ceedings could  not  be  received  as  original  testimony,  when  it  is  ma- 
terial to  the  issues  in  evidence  upon  this  trial. 

But  an  additional  and  very  strong  and  cogent  reason  for  holding 
this  evidence  material  and  competent  is  found  in  applying  the  provi- 
sions of  chapter  85,  p.  106,  Laws  1901,  quoted  above.  As  stated,  this 
statute  takes  from  the  defendant  a  very  important  right,  in  that  he 
may  be  compelled  to  give  testimony  before  the  grand  jury,  and  for 
the  deprivation  of  this  constitutional  privilege  has  granted  him  com- 
plete immunity  from  prosecution  or  subjection  to  any  penalty  or  for- 
feiture for  or  on  account  of  any  transaction,  matter,  or  thing  concern- 
ing which  he  testified  or  produced  evidence.  If  the  defendant  can  es- 
tablish that  he  is  entitled  to  such  immunity,  it  will  be  a  complete  de- 
fense to  any  further  proceeding,  and  entitle  him  to  a  discharge  from 
further  prosecution.  In  its  legal  aspect  this  right  is  as  important  to 
the  defendant  as  any  legal  defense  to  the  accusation.  No  grounds  are 
suggested  why  he  should  not  be  awarded  the  usual  and  ordinary 
methods  recognized  by  the  law  for  showing  the  facts  necessary  to 
establish  this  defense,  nor  do  any  valid  reasons  suggest  themselves  to 
us  for  holding  that  he  should  be  deprived  of  this  right  given  him  in 
the  law.  We  are  of  the  opinion  that  this  evidence,  if  otherwise  un- 
objectionable, is  competent  as  original  evidence  on  the  question  in- 
volved in  the  issue  raised  by  defendant's  plea  in  bar,  and  should  have 
been  received,  regardless  of  Avhcther  or  not  defendant  testified  as  a 
witness  upon  the  trial.     It  is  the  policy  of  the  state  not  to  compel 

87  A  few  court.^  have  construed  somewhat  isimilar  statutes  as  exoUiding 
the  testimony  of  grand  jurors  in  all  cases  not  thus  excepted ;  e.  g.,  Tiudle  v. 
Nichols,  20  Mo.  326  (1S55). 


'^16  WITNESSES  (Ch.  2 

persons  charged  with  crimes  to  testify  in  their  own  behalf.    This  privi- 
lege should  not  be  imperiled  by  denying  them  the  right  to  employ  any 
legal  means  to  establish  their  defenses.    *    *    * 
Judgment  reversed.** 


SECTION  2.— REQUIRED  WITNESSES  «» 


BARNES  V.  TROMPOWSKY. 
(Court  of  King's  Bench,  1797.     7  Durn.  &  E.  265.) 

Debt  on  a  charter-party  of  affreightment,  not  under  seal.  The 
charter-party,  being  produced  at  the  trial  at  York  before  Rooke,  J., 
appeared  to  be  dated  the  26th  September,  1795,  and  signed  by  the 
name  of  M.  Trompowsky,  and  attested  by  one  Knieriem,  whose  seal  as 
a  sworn  broker  was  affixed  to  the  instrument.  A  witness  was  called, 
who  was  a  merchant  residing  at  Hull  long  conversant  in  the  Russia 

8  8  See  elaborate  opinion  in  State  v.  Benner,  64  Me.  267  (1874),  admitting 
testimony  of  grand  juror  to  contradict  a  witness. 

8  9  In  Fox  V.  Reil,  3  Johns.  477  (N.  Y.  1808),  Chief  Justice  Kent  gives  the 
following  as  the  origin  of  the  extremely  technical  rules  applied  to  attested 
documents:  "In  the  early  periods  of  the  English  law,  the  names  of  the  wit- 
nesses were  always  registered  in  the  body  of  the  deed.  They  were  selected 
from  the  best  men  in  the  neighborhood ;  and  if  the  deed  was  denied,  they 
formed  a  necessary  part  of  the  jury,  who  was  to  try  its  validity.  This  rule 
continued,  until  the  Statute  12  Edw.  II,  c.  2,  allowed  the  inquest  to  be  tak- 
en, without  any  of  the  witnesses  being  associated  with  the  jury:  but  they 
were  still  to  be  summoned  as  usual.  'It  is  agreed,'  says  the  statute,  'that 
when  a  deed,  release,  acquittance,  or. other  writing,  is  denied  in  the  king's 
court,  wherein  the  witnesses  be  named,  process  shall  be  awarded  to  cause 
such  witnesses' to  appear,  as  before  hath  been  used.'  The  practice  of  join- 
ing the  witnesses  to  the  jury  continued  throughout  the  reign  of  Edward  III, 
and  Fortescue  (de  Laud.  Leg.  Ang.  c.  32.)  mentions  it  as  existing  in  the  reign 
of  Henry  VI.  It  gradually  fell  into  disuse,  and  ceased  about  the  time  of 
Henry  VIII,  and  until  that  period,  the  process  to  bring  in  the  witnesses, 
upon  the  denial  of  a  deed,  continued,  of  which  numerous  instances  are  col- 
lected from  the  Year  Books,  by  Brooke,  (tit.  Testmoigues.)  When,  there- 
fore, the  ancient  law  required  the  witnesses  to  a  deed  to  form  part  of  the 
jury,  and  continued  down  to  the  time  of  Henry  VIII,  to  compel  them  to  come 
in,  by  similar  process  as  that  awarded  for  the  jury,  (see  Keg.  Brev.,  jud. 
60,  and  Tliesaurus  Brevium,  88,)  it  cannot  be  supposed  that  the  notion  of 
proving  a  deed,  by  the  confession  of  the  party,  in  pais,  was  ever  thought  of 
or  admitted.  Under  Henry  VI  it  was  held,  that  if  a  deed  be  acknowledged 
and  enrolled  of  record,  the  party  was  estopped  to  plead  non  e^t  factum;  but 
the  case  assigns  a  very  sufficient  reason  for  this,  because,  as  was  observed, 
upon  every  deed  enrolled,  the  party  shall  be  examined,  aud  the  deed  shall 
be  read  to  him  by  the  court,  and  it  is  not  to  be  supposed  that  the  party  has 
been  deceived.     Year  Book,  Hil.  9  Hen.  VI,  pi.  S. 

"In  the  case  of  Smartle  v.  Williams,  1  Salk.  280  (1695),  the  court  of  King's 
Bench,  after  debate,  went,  perhaps,  a  little  further,  and  held  that  the  ac- 
knowledgment of  a  deed  by  the  party  in  a  court  of  record,  or  before  a  mas- 
ter in  chancery  in  the  country,  was  good  evidence  of  the  execution  of  a  deed, 
and  such  an  acknowledgment  estojjped  the  party  from  relying  on  the  plea  of 
non  est  factum.    *    ♦     * » 


Sec.  2)  REQUIRED   WITNESSES  217 

trade  and  in  habits  of  correspondence  with  the  defendant,  and  who 
proved  the  signature  to  the  charter-party  to  be  his  handwriting;  he 
also  proved  that  eight  years  ago  a  sworn  broker  named  Kniericm  was 
living  and  resident  at  Riga,  and  he  had  not  heard  of  his  death.  An- 
other witness  proved  that  he  knew  Ivnieriem  acting  there  as  a  broker  in 
1790;  but  neither  of  these  witnesses  knew  his  handwriting.  After 
the  plaintiff  had  gone  through  his  whole  case,  it  was  objected,  amongst 
other  things,  that  the  charter-party  was  not  duly  proved :  but  the 
learned  judge  thought  there  was  sufficient  evidence  to  go  to  the  jury; 
and  the  plaintiff  recovered  a  verdict.  A  rule  was  obtained  on  a  former 
day  in  this  term  calling  on  the  plaintiff  to  shew  cause  why  the  verdict 
should  not  be  set  aside  and  a  new  trial  had  on  the  ground  of  this  as 
well  as  several  other  objections,  which  were  stated:  but  the  Court  de- 
sired the  plaintift''s  counsel  on  shewing  cause  to  confine  themselves  to 
this  objection. 

Law,  Chambre,  and  Raine,  shewed  cause  against  the  rule;  con- 
tending that  under  all  the  circumstances  this  was  the  best  evidence 
within  the  power  of  the  plaintiff  to  produce.  In  Swire  v.  Bell,  5  Dum. 
&.  E.  371,  where  the  party  could  not  examine  the  subscribing  witness  to 
a  bond  by  reason  of  his  interest  in  the  cause,  proof  of  the  handwriting 
of  the  obRgor  was  held  sufficient.  By  parity  of  reasoning  the  same 
mode  of  proof  ought  to  be  received  here ;  for  the  witness  lives  at  Riga, 
and  cannot  be  compelled  to  attend  by  any  process;  he  might  equally 
refuse  to  be  examined  if  a  commission  were  sent  out ;  and  that  mode 
of  examination  has  fallen  into  disuse  from  the  heavy  expence  and 
difficulty  attending  it.  Besides,  proof  of  the  handwriting  of  the  sub- 
scribing witness  is  only  a  medium  of  proof  of  the  handwriting  of  the 
contracting  party;  and  as  this  instrument  is  not  under  the  seal  of  the 
contracting  party  himself,  but  has  its  force  from  his  signature  only, 
this  proof  is  sufficient!  In  the  proof  too  of  foreign  instruments  more 
latitude  has  been  allowed  than  in  general  cases  between  subject  and  sub- 
ject. Even  where  the  subscribing  witness,  though  a  subject,  had  been 
absent  in  the  East  Indies  for  five  years,  Lord  Mansfield  held  in  Coghlan 
V.  Williamson,  Dougl.  93,  that  proof  of  the  obligor's  handwriting  and 
of  his  admission  of  the  debt  was  sufficient.  And  upon  a  motion  for 
entering  a  nonsuit  the  Court  concurred  with  his  Lordship,  the  point 
bein^  given  up  by  the  defendant's  counsel,  upon  tftie^ground  of  his  ad- 
mission of  the  debt.  \ 

Gibbs,  Hey  wood,  Serjeant,  and  Holroyd,  contra,  were  stopped  by  the 
Court. 

Lord  K^nyon,  C.  J.  We  ought  not  to  suffer  this  point  to  be  called 
in  question ;  it  is  too  clear  for  discussion.  I  do  not  say  that  proof  of 
the  handwriting  of  the  contracting  party  is  not  under  any  circum- 
stances sufficient  where  there  is  a  subscribing  witness ;  as  if  no  intel- 
ligence can  be  obtained  respecting  the  subscribing  witness  after  reason- 
able inquiiy  has  been  made;    but  here  the  witness  is  a  known  person 


218  WITNESSES  (Ch.  2 

residing  ^^  at  Riga.  Generally  speaking,  every  instrument,  whether 
under  seal  or  not,  the  execution  of  which  is  witnessed,  must  be  proved 
in  the  same  manner,  regularly  by  the  witness  himself  if  living ;  if  dead 
by  proving  his  handwriting ;  if  residing  abroad  by  sending  out  a  com- 
mission to  examine  him,  or  at  least  by  proving  his  handwriting,  which 
last  indeed  is  a  relaxation  of  the  old  rule,  and  admitted  only  of  late 
years.  I  remember  the  case  alluded  to  which  was  tried  at  Guildhall, 
where  the  subscribing  witness  being  domiciled  in  a  foreign  country 
Lord  Mansfield  permitted  evidence  to  be  given  of  his  handwriting. 
That  opinion  was  received  with  approbation  at  the  time  on  account  of 
the  necessity  and  convenience  of  the  case;  and  I  myself  have  adopted 
it  in  cases  which  have  been  tried  before  me.  The  same  medium  of 
proof  has  also  been  admitted  where  the  subscribing  witness  has  been 
sought  for  and  could  not  be  found,  so  as  to  furnish  a  presumption  that 
he  was  dead.  But  the  rule  has  never  been  relaxed  further  than  these 
instances;  and  there  is  neither  necessity  nor  convenience  in  doing  so. 
The  case  of  Swire  v.  Bell  ®^  went  on  the  ground  that  the  subscribing 
witness  was  interested  at  the  time  of  the  execution  and  also  at  the  time 
of  trial. 

AsHURST,  J.,  of  the  same  opinion. 

Grose,  J.  Where  there  is  a  subscribing  witness  the  parties  thereby 
agree  that  the  proof  of  their  handwriting  shall  be  made  through  that 
medium. ®- 

LawrEncE;  J.  Even  an  acknowledgment  by  the  obligor  himself  has 
been  held  not  to  be  sufficient  evidence  on  the  plea  of  non  est  factum. 
Abbot  V.  Plumbe,  Dougl.  215. 

Rule  absolute.^^ 

90  In  Prince  v.  Blackburn,  2  East,  250  (1S02),  it  was  held  proper  to  prove 
the  signature  of  an  attesting  witness  who  had  gone  abroad  on  a  business 
trip. 

91  In  Swire  v.  Bell,  5  D.  &  E.  371  (1793),  the  witness  was  incompetent 
both  at  the  time  of  attesting  and  at  the  trial,  and  it  was  held  that  his)  sig- 
nature could  not  be  proved,  distinguishing  the  case  of  a  witness  who  sub- 
sequently becomes  Incompetent  to  testify.  In  case  of  subsequent  incompe- 
tency the  signature  of  the  witness  may  be  proved  as  in  case  of  death.  God- 
frey V.  Norris,  1  Strange,  34  (1717) ;  Jones  v.  Mason,  2  Strange,  833  (1729). 

9  2  The  rule  requiring  the  examination  of  the  attesting  witness  has  been 
applied  to  noncontractual  instruments,  such  as  an  attested  notice  to  termi- 
nate a  tenancy.  Doe  v.  Durnford,  2  M.  &  S.  62  (1813).  The  rule  has  also 
been  applied  in  actions  between  strangers  to  the  instrument,  where  it  was 
sought  to  prove  the  execution  by  one  of  the  parties  to  it.  The  King  v.  Har- 
ringworth,  4  M.  &  S.  350  (1815);  Brigham  v.  Palmer,  3  Allen  (Mass.)  450 
(1862). 

9  3  In  a  few  states  the  courts  have  limited  the  rule  to  sealed  instruments, 
or  at  least  refused  to  apply  it  to  attested  promissory  notes.  Hall  v.  Phelps, 
2  Johns.   (N.  Y.)  451   (1S07). 

There  are  statutes  in  several  of  the  states  confining  the  rule  to  instru- 
ments required  to  be  attested ;  e.  g.,  llurd's  Rev.  St.  111.  1913,  c.  51,  §  51. 


Sec.  2)  REQUIRED   WITNESSED  219 

CALL  V.  DUNNING. 
(Court  of  King's  Bench,  1803.     4  East,  53.) 

In  debt  on  bond,  at  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the 
Sittings  after  last  term,  the  only  proof  offered  of  the  execution  of  the 
bond  was  the  answer  of  the  defendant  in  Chancery  to  a  bill  filed  for  a 
discovery,  Whether  this  were  his  bond?  in  which  answer  it  was  admit- 
ted to  be  so.  But  the  bond,  when  produced,  having  the  name  "Rich- 
ard Wilson"  subscribed  thereto  as  the  witness  attesting  the  execution, 
and  no  evidence  being  given  of  his  hand-writing,  or  that  any  inquiry 
had  been  made  who  the  person  was,  or  where  he  was  to  be  found,  or 
that  any  application  had  been  made  to  any  person  of  that  name  to 
know  whether  he  were  the  subscribing  witness;  (though  it  was  sug- 
gested on  the  part  of  the  plaintiff  that  no  knowledge  of  the  witness 
could  be  obtained  by  him;)  the  Lord  Chief  Justice  thought  that  no 
sufficient  foundation  had  been  laid  to  let  in  the  secondary  evidence 
offered,  and  therefore  nonsuited  the  plaintiff. 

Gibbs  moved  to  set  aside  the  nonsuit. 

Lord  Ellenborough,  C.  J.  This  case  falls  within  the  common 
rule.  The  answer  of  the  defendant  in  Chancery,  admitting  the  execu- 
tion of  his  bond,  to  which  there  was  a  subscribing  witness,  cannot  be 
more  than  secondary  evidence:  and  I  did  not  reject  it  as  not  being 
admissible  in  any  event,  but  because  the  plaintiff'  had  not  laid  a  foun- 
dation for  letting  it  in  by  shewing  that  he  had  made  inquiry  after  the 
subscribing  witness  Richard  Wilson,  and  had  not  been  able  with  due 
diligence  to  procure  any  account  of  him.  No  one  person  of  that  name 
(of  whom  several  were  suggested  in  court  within  reach  of  inquiry) 
had  been  applied  to  for  the  purpose  of  knowing  whether  he  were  the 
subscribing  witness. 

Le  Blanc,  J.  The  argument  of  the  plaintiff's  counsel  goes  upon  the 
supposition  that  the  obligor  himself  must  know  every  circumstance 
attending  the  execution  of  the  bond :  but  that  does  not  follow.  A  fact 
may  be  known  to  the  subscribing  witness  not  within  the  knowledge  or 
recollection  of  the  obligor,  and  he  is  entitled  to  avail  himself  of  all 
the  knowledge  of  the  subscribing  witness  relative  to  the  transaction.^* 

Per  Curiam.     Rule  refused.^^ 

»*  Repoeteb's  Note. — Vide  Abbot  v.  Plurabe,  Doug.  216;  Johnson  v.  Mason, 
1  Esp.  89,  Mannei-s  q.  c.  v.  Postan,  4  Esp.  239 ;  Cunliffe  v.  Sefton,  2  East,  1S3, 
187,  8;  I'hipps  v.  Parker,  1  Campb.  412.  The  rule  which  requires  the  sub- 
scribing witness  to  a  deed,  or  other  written  instrument,  to  be  produced,  or  his 

8  5  See  note  95  on  page  220. 


220  WITNESSES  (Ch.  2 

absence  accounted  for,  In  order  to  prove  the  execution,  has  very  few  excep- 
tions.   The  following  are  all  that  occur  to  me: 

Where  the  deed  has  been  acknowledged  and  enrolled  of  record.  Year  Book, 
nil.  9,  Hen.  VI,  pi.  8. 

Where  it  has  been  acknowledged  before  a  master  in  chancery  in  the  coun- 
try.    Smartle  d.  Newport  v.  Williams,  1  Salk.  280. 

Where  the  party  has  acknowledged  the  execution  by  an  indorsement  un- 
der his  hand  and  seal.     Dillon  v.  Crawley,  12  Mod.  500. 

Where  the  instrument  comes  out  of  the  hands  of  the  opposite  party  after 
notice  to  produce  it.  The  King  v.  The  Inhabitants  of  Middlezoy,  2  Term 
Rep.  41 ;  Thompson  v.  Jones  and  Passel  v.  Godsall,  cited  by  counsel ;  Bowles 
et  al.  V.  Langworthy,  5  Term  Rep.  366. 

Where  the  party,  pending  a  suit  on  the  instrument,  agrees  to  admit  the 
execution.    Laing  v.  Raine,  2  Bos.  &  Pull.  85. 

In  one  case  it  was  held  by  the  Supreme  Court  of  New  York,  that  promis- 
sory notes  were  not  within  the  rule,  and  that  the  confession  of  the  party  was 
sufficient  without  producing  the  subscribing  witness.  Hall  v.  Phelps,  2  Johns. 
(N.  Y.)  451.  But  the  same  court  fully  recognized  the  rule  as  applicable  to 
sealed  instruments  in  a  case  that  came  before  them  soon  afterwards.  Fox 
et  al.  V.  Reil  et  al.,  3  Johns.  (N.  Y.)  477. 

Where  the  general  rule  was  not  controverted  it  has  still  been  a  question 
in  many  cases,  What  shall  be  sufficient  to  account  for  the  absence  of  the 
subscribing  witness  so  as  to  let  in  secondary  evidence?  It  has  been  decid- 
ed that  his  absence  is  sufficiently  accounted  for  under  the  following  cir- 
cumstances: 

Where  he  is  dead,  or  presumed  to  be  so.  Anon.  12  Mod.  607;  Adam  v. 
Kerr,  1  Bos.  &  Pull.  360;  Webb  v.  St.  Lawrence,  3  Bro.  Pari.  Ca.  640  (Toml. 
edit.) ;  Banks  v.  Farquarson,  1  Dick.  167 ;  Barns  v.  Trompowsky,  7  Term  Rep. 
265 ;  Mott  V.  Doughty,  1  Johns.  Cas  (N.  Y.)  230 ;  Hopkins  v.  De  Graffenreid, 
2  Bay,  187. 

Where  he  becomes  party  to  the  suit  in  consequence  of  being  made  the  exec- 
utor or  administrator  of  one  of  the  parties  to  the  instrument  Case  cited  by 
Hooper,  Serjnt,  in  Goss  v.  Tracy,  1  P.  Wms.  289;  Godfrey  v.  Norris,  1  Stra. 
34;  Cunliffe  v.  Sefton,  2  East,  183. 

Where  he  was  interested  in  the  instrument  at  the  time  of  its  execution, 
and  continues  so  at  the  time  of  the  trial.     Swire  v.  Bell,  5  Term  Rep.  371. 

Where  he  has  become  blind.     Wood  v.  Drury,  1  Ld.  Raym.  734. 

Where  he  has  been  convicted  of  an  infamous  crime.  Jones  v.  Mason,  2 
Stra.  833. 

Where  he  resides  beyond  sea.  Barns  v.  Trompowsky,  7  Term  Rep.  266; 
Wallis  V.  Delancey,  cited  in  notis;  Anon.,  12  Mod.  607;  Webb  v.  St.  Law- 
rence, 3  Bro.  Pari.  Ca.  640. 

Where  he  is  out  of  the  jurisdiction  of  the  Court,  so  as  not  to  be  amenable 
to  its  process.  Prince  v.  Blackburn,  2  East,  250;  Holmes  v.  Pontin,  Peakes' 
Ca.  99 ;  Banks  v.  Farquarson,  1  Dick,  167 ;  Cooper  v.  Marsden,  1  Esp.  2 ;  Ward 
V.  Wells,  1  Taun.  461;  Sluby  v.  Champlin,  4  Johns.  (N.  Y.)  461;  Hopkins  v. 
De  Graffenreid,  2  Bay  (S.  C.)  187. 

0  5  In  Bowles  V.  Langworthy,  5  D.  &  E.  366  (1793),  the  defendant's  exam- 
ination before  the  commissioners  of  bankrupt  was  received  apparently  as  an 
admission,  without  calling  the  attesting  witness ;  but  in  that  case  the  de- 
fendant produced  the  instrument  and  apparently  claimed  under  it.  See  Orr 
V.  Morice,  post,  p.  223. 

In  chancery  the  admission  in  the  defendant's  answer  giving  discovery  was 
sufficient,  but  this  was  thought  to  be  analogous  to  an  admission  by  the 
pleadings  at  law,  per  Pollock,  C.  B.,  in  Whyman  v.  Garth,  8  Exch.  803  (1853). 
In  this  case  the  defendant  was  called  to  prove  his  own  signature.  The 
court  held,  however,  that  the  statute  making  him  a  competent  witness  did 
not  dispense  with  the  necessity  of  calling  the  attesting  witness.  But  see 
Bowling  V.  Hax,  55  Mo.  446  (1874). 


Sec.  2)  EEQUIRED   WITNESSES  221 

GORDON  et  al.  v.  SECRETAN. 
(Court  of  King's  Bench,  1S07.     8  East,  548.) 

In  an  action  upon  a  policy  of  insurance  on  goods  on  board  the 
ship  Tom,  at  and  from  the  Southern  Whale  Fishery  until  her  arrival 
at  London,  the  declaration  contained  an  averment  that  the  plaintiffs 
were  interested  in  the  subject-matter  of  insurance ;  and  the  defendant 
meaning  to  dispute  that  at  the  trial,  gave  them  notice  to  produce  cer- 
tain articles  of  agreement  between  them  (who  were  also  owners  of  the 
ship)  and  the  captain,  whereby,  as  he  contended,  it  would  appear  that 
the  captain  (who  was  not  a  plaintiff)  was  interested  in  one  third  of  the 
neat  proceeds  of  the  cargo :  and  if  so,  the  defendant,  having  paid  more 
than  enough  into  court  to  cover  the  shares  of  these  plaintiffs,  would 
have  been  entitled  to  a  verdict,  unless  the  plaintiffs  were  entitled  to 
recover  the  remainder  of  the  sum  insured  as  trustees  for  the  captain ; 
which  would  depend  upon  the  construction  of  the  articles.  In  pur- 
suance of  the  notice  the  instrument  was  accordingly  produced  at  the 
trial  by  the  plaintiffs,  when  there  appeared  to  be  two  subscribing  wit- 
nesses to  it ;  and  therefore  the  plaintiffs  insisted  that  the  defendant 
could  not  give  it  in  evidence  without  calling  one  of  those  witnesses  to 
prove  it.  And  Lord  Ellenborough  being  of  that  opinion,  the  plain- 
tiffs recovered. 

The  Attorney  General  moved  at  the  beginning  of  the  term  for  a  new 
trial,  1st,  on  the  ground  that  the  instrument  coming  out  of  the  hands 
of  the  plaintiffs,  parties  thereto,  upon  notice  to  produce  it,  was  not  nec- 
essary to  be  proved  by  one  of  the  subscribing  witnesses,  according  to 
the  rule  laid  down  in  Rex  v.  Middlezoy,  2  Term  Rep.  4L^''     *     *     * 

Lord  Ellenborough,  C.  J.,  said,  that  the  case  of  The  King  v. 
Middlezoy,  which  was  much  questioned  at  the  time,  had  been  since 
overruled.  And  that  it  was  not  enough  to  give  notice  to  the  opposite 
party  in  a  cause  to  produce  an  instrument  in  his  hands,  in  order  to 
dispense  with  any  further  proof  of  it  by  the  party  giving  the  notice; 
but  that  the  production  of  it  at  the  trial,  in  pursuance  of  such  notice, 
did  not  supersede  the  necessity  of  proving  it  by  one  of  the  subscribing 
witnesses,  if  any,  as  in  ordinary  cases. 

And  Lawrencs,  J.,  said,  that  this  had  been  so  ruled  by  Lord  Ken- 
yon  in  a  subsequent  case,  respecting  a  will,  which  the  adverse  party,  in 
whose  hands  it  was,  had  notice  to  produce,  and  did  produce  at  the 
trial,  when  it  appeared  that  there  were  subscribing  witnesses  to  it; 
and  Lord  Kenyon  held  that  the  party  calling  for  it  was  bound  to  call 
one  of  the  subscribing  witnesses  to  prove  the  instrument. 

Lord  Ellenborough,  C.  J.,  added,  that  the  case  of  a  will  shewed 
strongly  the  necessity  of  adhering  to  the  strict  rule  of  proof,  and  the 
enormity  of  the  general  proposition,  that  the  production  of  an  instru- 

»«  Statement  condensed  and  part  of  opinion  omitted. 


222  WITNESSES  (Ch.  2 

ment  by  an  adverse  party,  in  consequence  o£  a  notice,  dispensed  with 
the  general  rule  of  proving  its  execution  by  a  subscribing  witness :  for 
if  a  party  were  fixed  with  the  possession  of  an  instrument  affecting  his 
property,  however  questionable  its  execution  might  be,  and  even  though 
he  had  impounded  it  because  it  was  forged,  or  had  been  obtained  by 
fraud :  that,  according  to  the  argument,  was  to  relieve  the  party  at- 
tempting to  avail  himself  of  it  from  calling  the  subscribing  witness. 

The  Attorney  General,  after  suggesting  the  difficulty  which  par- 
ties would  be  laid  under  in  these  cases,  from  their  ignorance  of  the 
names  of  the  subscribing  witnesses  to  an  instrument  till  produced  at 
the  trial,  then  offered  an  affidavit  on  the  part  of  the  defendant,  of  his 
being  surprized  and  not  prepared  at  the  trial  for  want  of  knowing  who 
the  subscribing  witnesses  were ;  relying  on  the  case  of  The  King  v. 
Middlezoy,  that  the  notice  to  produce  the  articles  dispensed  with  fur- 
ther proof  of  them  when  produced. 

Lord  EllEnborough,  C.  J.,  said,  that  there  could  be  no  objection 
to  his  taking  a  rule  to  shew  cause  on  the  ground  of  surprize.    *    *    * 

Rule  absolute  on  ground  of  surprise. 


COOKE  V.  TANSWELL. 

(Court  of  Common  Pleas,  1818.     8  Taunt.  450.) 

Covenant  on  an  indenture  of  apprenticeship,  with  an  averment  in  the 
declaration  that  the  indenture  was  in  the  possession  of  the  defendant, 
and,  therefore,  could  not  be  produced  by  the  plaintiff.  Plea,  non  est 
factum.  At  the  trial  before  Burrough,  J.,  at  the  sittings  for  West- 
minster, after  the  last  term,  it  was  proved  that  the  deed  was  in  the 
hands  of  the  defendant,  to  whom  notice,  specifying  the  name  of  Pain, 
as  that  of  the  subscribing  witness,  had  been  given  to  produce  it.  The 
plaintiff,  on  the  defendant's  refusal  to  produce  the  deed,  gave  in  evi- 
dence what  was  supposed  to  be  a  copy  of  it,  on  which  the  name  ox. 
the  subscribing  witness  was  apparent ;  but,  on  its  turning  out  that  thii 
paper  was  not  a  copy,  the  plaintiff  abandoned  it  and  gave  parol  evi- 
dence of  the  contents  of  the  original  without  calling  the  subscribing 
witness  who  was  in  court.  For  the  defendant,  it  was  contended  that 
the  plaintiff'  had  failed  in  his  proof,  and  that  the  attesting  witness 
should  have  been  called.  But  Burrough,  J.,  was  of  opinion,  that  the 
proof  was  sufficient  without  the  evidence  of  the  subscribing  witness. 

Lens,  Serjt.,  on  a  former  day,  had  obtained  a  rule  nisi  to  set  aside 
this  verdict,  and  enter  a  nonsuit  on  the  ground  urged  at  the  trial. 

GiBBS,  C.  J.  I  do  not  think  the  knowledge  of  the  name  of  the  sub- 
scribing witness  makes  any  difference  in  the  case.  I  take  the  ques- 
tion to  be,  whether  when  one  party  calls  for  a  deed  of  the  other,  who 
does  not  produce  it,  and  the  party  calling  for  the  deed  is  consequently 
driven  to  give  parol  evidence  of  its  contents,  it  is  necessary  for  him 


Sec.  2)  REQUIRED   WITNESSES  223 

to  call  the  subscribing  witness.  In  cases  where  non  est  factum  is  not 
pleaded,  as  in  ejectment,  when  a  party  so  situated  gives  evidence  of  the 
contents  of  a  deed,  I  never  yet  heard  it  contended  that  it  was  nec- 
essary to  call  the  subscribing  witness.  Here,  the  deed  was  in  the 
hands  of  the  defendant;  if  he  wished  to  throw  on  the  plaintiff  the 
burthen  of  calling  the  subscribing  witness,  he  might  have  produced  the 
deed.  It  was  alleged  on  the  record,  that  the  deed  was  in  the  defend- 
ant's hands,  that  allegation  was  admitted,  and  the  defendant  being 
called  on  to  produce  it,  and  refusing  to  do  so,  it  was  not  necessary 
that  the  plaintiff  should  call  the  subscribing  witness  to  the  deed  before 
he  gave  evidence  of  the  contents. 

Park,  J.,  of  the  same  opinion. 

BuRROUGii,  J.  Not  only  was  it  averred  on  the  record  that  the  deed 
was  in  the  defendant's  hands,  but  that  fact  was  proved,  and  also  that 
notice  had  been  given  to  him  to  produce  it,  which  he  refused  to  do ; 
and  I  thought  at  the  trial,  as  I  think  now,  that  there  was  no  necessity 
for  calling  the  subscribing  witness. 

Rule  discharged. 


ORR  V.  MORICE  et  al. 
(Court  of  Common  Pleas,'  1821.     3  Brod.  &  B.  1.39.) 

Assumpsit  for  use  and  occupation.  The  defendants  were  the  as- 
signees of  a  bankrupt,  and  at  the  trial  before  Dallas,  C.  J.,  (Middlesex 
sittings  after  Trinity  term  last,)  it  was  proved,  that  one  of  them  had 
continued  for  some  time  after  the  bankruptcy  to  occupy  a  counting- 
house,  which,  up  to  his  bankruptcy,  had  been  occupied  by  the  bank- 
rupt. 

The  defendants,  under  a  notice  from  tlie  plaintiff,  produced  the  deed 
of  assignment,  and  the  plaintiff,  omitting  to  prove  its  execution  by  the 
attesting  witness,  it  was  contended,  that  the  deed  was  not  admissible 
in  evidence. 

Dallas,  C.  J.,  held,  that  the  assignment  so  produced  was  admissi- 
ble, as  coming  out  of  the  possession  of  the  defendants,  who  had  taken 
a  beneficial  interest  under  it.  A  verdict  having  been  found  for  the 
plaintiff, 

Ilullock,  Serjt.,  on  a  former  day,  obtained  a  rule  nisi  to  set  aside  this 
verdict,  and  enter  a  nonsuit,  on  the  ground,  that  the  plaintiff  ought  to 
have  proved  the  deed  by  calling  the  attesting  witness. 

Dallas,  C.  J.^^  The  cases  on  this  subject,  have  been  contradictory; 
the  earlier  cases  laying  down  a  rule,  which,  on  first  consideration  I 
should  have  thought  correct,  namely,  that  when  an  adverse  party,  who 
has  a  deed  in  his  custody,  produces  it  on  notice,  it  shall  be  deemed  to 
be  duly  executed,  and  the  party  calling  for  it,  shall  not  be  required  to 

»T  Opinions  of  Park,  Burrough,  and  Richardson,  JJ.,  omitted. 


224  WITNESSES  (Ch.  2 

prove  the  execution  by  calling  an  attesting  witness.  That  rule  indeed 
proceeded  on  the  ground,  (which  subsequent  practice  has  in  some  de- 
gree removed,)  that  the  party  calling  for  the  deed  could  not  be  sup- 
posed to  know  the  name  of  the  attesting  witness.  Then  came  the  case 
of  Gordon  v.  Secretan  [8  East,  548],  by  which  that  doctrine  was  ex- 
pressly overruled,  and  wherein  the  party  calling  for  the  deed,  was  held 

'  bound  to  prove  its  execution,  as  in  every  other  case.  After  that,  fol- 
lowed the  case  of  Pearce  v.  Hooper  [3  Taunt.  60],  in  which  it  was 
decided,  that  where  an  adverse  party  produces,  upon  notice  to  do  so, 
an  instrument  under  which  he  claims  a  beneficial  estate,  the  party  call- 
ing for  the  deed  shall  not  be  compelled  to  prove  its  execution  by  the 
testimony  of  the  attesting  witness :  and  in  another  case  at  nisi  prius, 
in  which  the  circumstances  were  of  the  same  nature,  I  remember 
having  ruled  to  the  same  effect.  The  question  then  will  be,  whether, 
in  the  present  instance,  the  assignees  did  claim  ®*  a  beneficial  interest 
under  the  instrument  which  they  were  called  on  to  produce?  As  to 
that,  it  appeared  that  the  bankrupt  had  claimed  the  premises  in  ques- 
tion, that  his  assignees  had  entered,  and  had  occupied  them  for  some 

■  time.     This  brings  the  case  within  the  rule  laid  down  in  Pearce  v. 
Hooper,  and  I  think  it  was  not  incumbent  on  the  plaintiff  to  call  the 
attesting  witness  of  the  deed  produced  by  the  defendants  under  these 
circumstances. 
Rule  discharged. 


CUNLIFF  et  al.  v.  SEFTON  et  al. 
(Court  of  King's  Bench,   ISOl.    2   East,   1S3.) 

Upon  a  rule  nisi  for  setting  aside  a  nonsuit  in  this  cause,  which 
stood  over  from  last  Michaelmas  term,  Chambre,  J.,  before  whom  it 
was  tried  at  the  last  Summer  assizes  at  Lancaster,  reported  that  it 
was  an  action  on  a  bond  given  by  the  defendants  to  the  intestate,  dated 
31st  of  February,  1795,  for  £600.,  to  which  non  est  factum  was  plead- 
ed. That  the  bond  when  produced  appeared  to  be  witnessed  by  Rich- 
ard Bate,  and  by  Alice  Houghton,  one  of  the  plaintiffs :  and  to  prove 
the  execution  of  it  the  following  evidence  was  offered,  viz.  That  the 
plaintiffs  had  taken  out  a  subpoena  for  Richard  Bate,  one  of  the  sub- 
scribing witnesses;  and  that  for  the  purpose  of  serving  him  with  it, 
diligent  inquiry  was  made  at  the  place  where  the  obligors  and  the 
obligee  lived,  without  having  been  able  to  obtain  any  intelligence  of 
such  a  person ;  who  he  was,  or  where  he  lived,  or  any  other  circum- 
stance relating  to  him.  That  the  defendants  had  acknowledged  the 
debt,  and  made  a  calculation  of  what  was  due  for  principal  and  in- 
terest, which  the  plaintiffs  offered  to  prove  by  letters  of  correspond- 

0  8  Extrinsic  evidence  may  be  used  to  prove  that  the  adverse  party  does 
claim  under  the  deed.    Wilkins  v.  Wilkins,  4  Adol.  &  EL  SO  (1835). 


Sec.  2)  REQUIRED   WITNESSES  22Tj 

ence:  and  as  Alice  Houghton,  the  other  subscribing  witness,  by  rea- 
son of  her  interest  as  adniinistratix  and  plaintiff,  could  not  be  pro- 
duced as  a  witness,  it  was  offered  to  perfect  the  proof  by  evidence 
of  her  hand-writing.  The  learned  Judge,  upon  the  authority  of  Ab- 
bot V.  Plumbe,  Dougl.  216,  thought  himself  precluded  from  receiving 
the  evidence  of  acknowledgment  as  proof  of  the  execution  of  the  bond. 
He  also  thought  that  the  inquiry  after  Richard  Bate  was  too  slight  a 
foundation  for  directing  the  jury  to  find  for  the  plaintiff  upon  the 
rest  of  the  evidence,  without  producing  Bate  as  a  witness,  or  proving 
his  hand-writing.  Not  having,  however,  any  doubt  of  the  justice  of 
the  demand,  he  wished  to  have  reserved  the  point  for  the  determina- 
tion of  this  Court  upon  a  case :  but  there  being  no  person  to  consent 
on  the  part  of  the  defendants,  the  learned  Judge  directed  a  nonsuit, 
with  liberty  tojhe  plaintiffs  to  apply  to  this  Court  to  set  it  aside. 

Grose,  J.  /The  general  principle  of  evidence  is  clear,  that  the  best    AP^^yf' 
evidence  whicH  the  nature  of  the  case  will  admit  of  must  be  givenT)  ^^^■^'^^^ 
Then  apply  that  to  the  present  case :    here  is  a  bond  executed,  nobody 
knows  where,  and  attested  by  a  witness,  of  whom  nothing  appears  to 
lead  to  a  discovery  who  he  was,  or  where  he  lived.    But  it  was  known 
where  the  parties  to  the  bond  lived ;   and  there  it  is  stated  that  diligent 
inquiry  was  made  after  the  subscribing  witness,  and  no  account  could 
be  obtained  of  him.     The  bond  itself  is  dated  in  February,  1795,  and 
the  obligee  is  since  dead.     I  do  not  see  what  the  plaintiffs  could  have     ^ 
done  more  than  they  have.  [Then  if  they  have  used  due  diligence   (y^-^^^^ 
without  effect,  that  will  let  them  in  to  secondary  evidenceTf  It  is  plain         /oj '  ^ 
from  the  report  that  the  learned  Judge  was  not  satisfiecTwith  the  first        LA>^^^ 
impression  of  his  mind,  that  the  evidence  offered  ought  not  to  have  ( 

been  received;  because  he  reserved  the  point,  and  referred  it  to  our 
opinion :  and  upon  more  mature  consideration  we  think  that  the  evi- 
dence offered  was  sufficient  to  entitle  the  plaintiffs  to  recover.  I  form 
this  opinion  with  reference  to  what  is  daily  passing  in  the  world.  The 
frequency  of  written  instruments  in  modern  times  has  made  person? 
less  careful  than  they  used  to  be  in  the  selection  of  witnesses  to  their 
attestation.  It  has  occurred  to  me  to  know  that  persons  unknown  to 
the  parties,  such  as  waiters  at  a  tavern,  have  been  called  in  to  at- 
test instruments  of  the  most  important  kind,  even  wills;  where  the 
parties  had  no  previous  knowledge  of  them,  nor  even  were  apprized 
that  they  bore  the  names  by  which  they  attested  the  execution.  The 
difficulty,  therefore,  which  has  occurred  in  this  case  can  be  no  matter 
of  surprize.  On  the  whole,  I  think  the  nonsuit  ought  to  be  set  aside ; 
and  possibly  the  plaintiffs  may,  in  the  mean  time,  be  able  to  procure 
some  intelligence  of  the  subscribing  witness. 

Lawrence,  J.     It  is  now  'admitted  as  a  general  rule,  that  proof  of 

the  acknowledgment  of  a  defendant  is  not  sufficient  in  an  action  on  a 

bond  without  calling  the  subscribing  witness.     The  only  question  now 

is  on  that  part  of  the  report  of  the  learned  Judge,  which  states  that  he 

HiNT.Ev. — 15 


226  WITNESSES  -  (Ch.  2 

was  not  satisfied  that  sufficient  inquiry  had  been  made  after  Richard 
Bate,  one  of  the  subscribing  witnesses,  in  order  to  let  in  the  proof  of 
the  hand-writing  of  the  other  subscribing  witness,  who  has  since  be- 
come one  of  the  parties  interested.  Now  no  dotibt  that  a  subscribing 
witness's  hand-writing  may  be  proved,  if  dihgent  inquiry  have  been 
made  after  him,  and  he  cannot  be  found.  Then  the  question  is,  Wheth- 
er it  be  not  sufficient  to  inquire  after  a  witness  whom  nobody  knows 
at  the  place  where  tlie  obligors  and  obligee  lived?  It  is  stated,  that 
diligent  inquiry  was  made  after  the  witness  tiiere,  but  without  success : 
then  where  else  were  the  parties  to  inquire?  It  does  seem  that  they 
have  done  everything  that  could  be  expected  of  them;  and  if  so,  I 
think  they  ought  to  have  been  let  into  the  secondary  evidence  offered. 

Le  Blanc,  J.  Inquiry  was  made  for  the  subscribing  witness  at  the 
only  place  where  it  was  probable  to  find  or  hear  of  him.  The  only 
other  step  the  parties  could  have  taken  was  to  advertise  for  him  in  the 
public  papers:  and  unless  the  Court  should  hold  that  necessary  to  be 
done  in  all  these  cases,  I  think  the  plaintiffs  have  made  all  the  inquiry 
which  could  reasonably  be  required  of  them. 

Rule  absolute.®* 


DOE  ex  dem.  OLDHAM  et  ux.  v.  WOLLEY. 
(Court  of  King's  Bench,  1S2S.     8  Barn.  &  C.  22.) 

Ejectment  for  lands  in  Worcestershire.  Plea,  the  general  issue.  At 
the  trial  before  Vaughan,  B.,  at  the  last  Spring  assizes  for  Worcester, 
it  appeared  that  the  lessors  of  the  plaintiff  claimed  as  devisees  of  Fran- 
ces Wolley,  who  was  said  to  be  heir  of  T.  Wolley,  who  died  in  1800, 
seised  of  the  estate  in  question,  having  devised  it  to  his  widow  for  life, 
remainder  to  his  right  heirs.  This  will  was  dated  the  21st  February, 
1798,  more  than  thirty  years  before  the  trial,  but  one  of  the  subscribing 
witnesses  was  proved  to  be  still  living;  and  it  was  insisted  for  the 
defendant  that  he  must  be  called  to  prove  the  execution  of  the  will,  as 
the  testator  had  died  within  thirty  years.  The  learned  Judge  thought 
that  the  thirty  3^ears  must  be  computed  from  the  date  of  the  will,  and 
overruled  the  objection.^ 

Lord  TentErddn,  C.  J.  As  to  the  first  point  I  am  of  opinion  that 
the  rule  of  computing  the  thirty  years  from  the  date  of  a  deed  is 
equally  applicable  to  a  will.  The  principle  upon  which  deeds  after  that 
period  are  received  in  evidence,  without  proof  of  the  execution,  is,  that 
the  witnesses  may  be  presumed  to  have  died.  But  it  was  urged  that 
when  the  existence  of  an  attesting  witness  is  proved,  he  must  be  called. 

89  All  of  the  attesting  witnesses  must  be  shown  to  be  unavailable  In  or- 
der to  admit  secondary  evidence.  Forbes  v.  Wales,  1  Wm.  Blaclistone,  532 
(1764) ;  Gelott  v.  Goodspeed,  8  Gush.  (Mass.)  411  (1851). 

1  Statement  condensed. 


Sec.  2)  REQUIRED    WITNESSES  227 

That,  however,  would  only  be  a  trap  for  a  nonsuit.  The  party  produc- 
ing the  will  might  know  nothing  of  the  existence  of  the  witness  until 
the  time  of  the  trial.  The  defendant  might  have  ascertained  it,  and 
kept  his  knowledge  a  secret  up  to  that  time,  in  order  to  defeat  the 
claimant.  As  to  the  other  point,  it  must  at  all  events  be  admitted,  that 
the  death  of  the  grandfather's  brothers  might  be  presumed,  and  then, 
in  order  to  raise  the  objection,  two  affirmatives  must  be  presumed; 
viz.  that  they  did  marry,  and  did  leave  issue.  I  think  that  would  be  a 
very  unreasonable,  and  that  the  direction  of  the  learned  Judge  was 
right. 

Rule  refused. 


Mcpherson  v.  rathbone  et  ai. 

(Supreme  Court  of  New  York,  1833.     11  Wend.  96.) 

This  was  an  action  of  assumpsit,  tried  at  the  Albany  circuit  in  Sep- 
tember, 1831,  before  the  Hon.  James  Vanderpoel,  one  of  the  circuit 
judges. 

The  suit  was  against  Lyman  Rathbone,  Moses  Rathbone  and  Sam- 
uel Rathbone ;  the  declaration  was  for  goods  sold  and  delivered,  and 
also  contained  the  money  counts.  The  plaintiff  claimed  to  recover 
for  goods  sold  in  September,  1825,  and  July,  1826.  To  prove  the 
partnership  of  the  defendants,  he  offered  in  evidence  a  memorandum 
of  dissolution  of  partnership,  signed  and  sealed  by  Samuel  Rathbone 
alone,  bearing  date  15th  August,  1826,  in  which  it  was  stated  that  a 
partnership  had  existed  between  the  defendants,  and  was  on  that  day 
dissolved  by  mutual  consent.  This  evidence  was  objected  to  by  the 
defendant,  but  the  objection  was  overruled,  and  the  defendants  ex- 
cepted. The  plaintiff  next  introduced  articles  of  partnership  entered 
into  by  tlie  defendants,  bearing  date  in  May,  1823,  by  which  they  agreed 
to  enter  into  copartnership  as  merchants,  under  the  name  and  firm 
of  "L.  Rathbone  &  Co.,"  the  partnership  to  continue  as  long  as  the 
parties  should  mutually  agree  to  its  continuance.  The  articles  pur- 
ported to  be  signed  and  sealed  by  the'  three  defendants,  and  to  have 
been  executed  in  the  presence  of  H.  A.  Rathbone.  The  plaintiff'  called 
Samuel  Rathbone,  junior,  to  prove  the  signature  of  H.  A.  Rathbone, 
the  subscribing  witness.  He  testified  that  he  was  the  son  of  the  de- 
fendant, Samuel  Rathbone,  and  brother  of  Henry  A.  Rathbone,  who 
was  at  the  time  of  the  trial  a  resident  of  the  state  of  Tennessee ;  that 
he  did  not  know  the  signature  of  H.  A.  Rathbone,  subscribed  to  the 
articles  as  a  witness,  to  be  the  hand  writing  of  his  brother  Henry  A. 
Rathbone ;  that  he  did  not  think  it  resembled  the  present  hand  writing 
of  his  brother,  and  that  he  did  not  know  his  hand  writing  at  the  date 
of  the  articles.  Upon  this  evidence  the  plaintiff  offered  to  prove  the 
hand  writing  of  the  defendant  Samuel   Rathbone  subscribed  to  the 


228  WITNESSES  (Ch.  2 

articles;  the  defendant  objected  to  such  proof,  insisting  that  either 
the  subscribing  witness  must  be  produced  or  his  hand  writing  proved. 
The  judge  overruled  the  objection,  and  the  defendants  excepted; 
whereupon  the  signatures  of  Samuel  Rathbone  and  of  Lyman  Rath- 
bone  were  proved,  and  the  articles  were  read  in  evidence  as  their  ad- 
mission of  the  partnership.  It  was  further  proved  that  at  the  time  of 
the  existence  of  the  partnership,  the  other  defendant,  Moses  Rathbone, 
was  always  reputed  to  be  a  member  of  the  firm.  A  witness  for  the 
plaintiff  then  testified  that  in  March,  1827,  he  presented  an  account 
of  the  items  of  the  plaintiff's  demand  to  Lyman  Rathbone,  who  ad- 
mitted the  same  to  be  correct,  and  gave  his  note  for  the  balance  stated 
to  be  due,  signing  the  same  in  the  partnership  name,  to  wit,  "L.  Rath- 
bone &  Co."  The  note  was  produced  and  deposited  with  the  clerk  of 
the  circuit,  and  the  jury,  under  the  charge  of  the  judge,  found  a  verdict 
for  the  plaintiff  for  the  amount  of  his  demand,  with  interest.  The  de- 
fendants having  tendered  and  obtained  a  bill  of  exceptions  to  be  signed, 
move  for  a  new  trial. 

Savage,  C.  J.  It  was  undoubtedly  competent  to  have  proved  the 
partnership  of  all  these  defendants  by  general  reputation,  but  probably 
no  such  reputation  could  be  shown  as  to  Samuel  Rathbone,  The  prin- 
cipal question  is,  whether  the  articles  of  copartnership  were  suffi- 
ciently proved,  as  respects  Samuel  Rathbone. 

Where  a  sealed  instrument  is  attested  by  a  subscribing  witness, 
the  testimony  of  such  witness  is  the  best  evidence  of  its  execution.  If 
the  subscribing  witness  is  not  produced,  his  absence  must  be  sufficiently 
accounted  for:  as  that  he  is  dead,  or  cannot  be  found,  after  diligent 
inquiry;  or  that  he  resides  out  of  the  state,  and  is  beyond  the  reach 
of  the  process  of  the  court,  &c.  2  Stark.  Ev.  337 ;  1  Phil.  Ev.  419. 
In  such  case,  proof  of  the  hand  writing  of  the  subscribing  witness 
proves  the  execution  of  the  instrument.  1  Phil.  Ev.  420;  Jackson  v. 
Qiapin,  5  Cow.  485 ;  Jackson  v.  Cody,  9  Cow.  148 ;  2  Stark.  Ev.  341, 
2  n.  1.  Such  is  the  ruk  in  this  state,  but  it  is  different  in  some  of  the 
other  states;  and  some  of  the  English  cases  say,  that  in  addition  to 
the  proof  of  the  hand  writing  of  the  witness,  proof  should  also  be  given 
of  the  hand  writing  of  the  party.  2  Stark.  Ev.  342;  1  Bos.  and  Pull. 
300.  If  the  hand  writing  of  the  subscribing  witness  cannot  be  proved, 
after  proper  diligence  has  been  used  for  that  purpose,  the  party  must 
then  resort  to  the  same  testimony  as  if  there  had  been  no  subscribing 
witness ;  the  hand  writing  of  the  party  executing  the  instrument  may 
be  proved  by  any  one  acquainted  with  it.  In  this  case,  the  execution 
of  the  instrument  was  sufficiently  proved,  if,  underi  the  circum- 
stances, enough  was  done  to  prove  the  hand  writing  of  the  absent 
subscribing  witness.  It  must  be  conceded,  I  think,  that  the  plaintiff  had 
procured  a  witness  who  would  be  most  likely  to  know  the  hand  writ- 
ing of  the  absent  subscribing  witness.  If  his  own  brother  could  not 
prove  his  hand  writing,  the  court  was  justified  in  assuming  that  it 


Sec.  2)  REQUIRED    WITNESSES  229 

could  not  be  proved,  and  in  receiving  evidence  of  the  hand  writing  of 
the  party. 

Assuming  the  partnership  of  the  defendants  to  have  been  proved, 
as  I  think  it  was,  then  there  can  be  no  doubt  of  the  plaintiff's  right 
to  recover.  The  indebtedness  accrued  during  the  existence  of  the  part- 
nership. And  though  one  partner  cannot  bind  his  copartner  by  a  note, 
after  the  dissolution  of  the  partnership,  yet  he  may  liquidate  a  previous 
account.  By  doing  so,  he  does  not  create  a  debt ;  that  was  previously 
in  existence.  I  am  therefore  of  opinion  that  a  new  trial  must  be  de- 
nied.* 


WRIGHT  v.  DOE  dem.  TATHAM. 
(Court  of  Exchequer  Chamber,  1834.     1  Adol.  &  E.  3.) 

The  defendant  in  error  declared  in  ejectment  against  the  plaintiff  in 
error  in  the  Court  of  King's  Bench.  At  the  trial  before  Gurney,  B., 
at  the  Lancaster  Spring  assizes,  1833,  the  jury  found  a  verdict  for 
the  plaintiff  below,  and  the  counsel  for  the  defendant  below  tendered 
a  bill  of  exceptions. 

By  the  bill  of  exceptions  it  appeared,  that  the  plaintiff  below  claimed 
as  heir  at  law  of  John  Marsden  deceased,  who  was  admitted  to  have 
died  seized,  leaving  the  plaintiff  below  his  heir  at  law ;  but  Wright 
claimed  under  a  will  of  J\larsden. 

[It  appeared  from  the  bill  of  exceptions  that  Wright,  the  defendant 
below,  in  order  to  prove  the  will,  introduced  the  testimony,  taken  at  a 
former  trial,  of  one  of  the  attesting  witnesses  named  Bleasdale,  who 
had  since  died.  On  this  proof  the  defendant  offered  the  will,  but  it 
was  excluded  because  the  other  attesting  witness  had  not  been  called. 
The  verdict  was  for  the  plaintiff.]^ 

TiNDAL,  C.  J.,  [after  holding  that  the  former  testimony  of  the  de- 
ceased witness  was  properly  received.]*  If,  therefore,  such  evidence  be, 
as  we  think  it  is,  producible,  the  only  question  that  remains  is,  what  is 
the  character  and  degree  of  that  evidence,  and  for  what  purpose  it 
can  be  produced:  and  it  seems  to  us,  that  such  evidence  is  direct  and 
immediate  evidence  in  the  cause,  and  is  producible  in  evidence  in  the 
cause  for  the  same  purpose  and  to  the  same  extent  as  if  the  witness 

2  In  a  number  of  states  a  rule  has  been  developed  that,  where  the  Instru- 
ment appears  to  have  been  executed  out  of  the  jurisdiction  and  the  attest- 
ing witnesses  are  nonresidents,  no  further  showing  is  necessary  to  admit 
other  procf  of  execution.  Newson  v.  Luster,  13  111.  175  (1851) ;  Valentine  v. 
Piper,  22  Pick.  (Mass.)  85,  33  Am.  Dec  715  (1839):  "Woodman  v,  Segar,  25 
Me.  90  (1845). 

In  the  case  of  an  instrument  required  to  be  attested,  as  a  will,  obviously 
proof  of  the  handwriting  of  the  testator  alone  would  not  establish  the  fact 
of  attestation. — Ed. 

8  This  part  of  the  statement  has  been  condensed. 

*  See  Doncaster  v.  Day,  3  Taunt.  262  (ISIO),  post,  p.  44:?. 


230  WITNESSES  .  ,  (Ch.  2 

himself  had  been  alive  and  sworn,  and  had  given  the  same  evidence  in 
the  witness  box  in  the  present  cause. 

For  unless  the  evidence  is  carried  to  this  extent,  it  is  impossible  to 
define  any  line  or  limit  to  which  it  shall  be  held  to  extend. 

It  is  objected  on  the  part  of  the  plaintiff  below,  first,  that  the  ad- 
mitting of  this  evidence  is  in  contravention  of  the  rule  of  law,  by 
which  the  best  evidence  is  required  to  be  given  in  every  case ;  for  it 
is  contended  that  the  viva  voce  evidence  of  Proctor,  the  surviving  wit- 
ness, is  better  evidence  than  the  examination  of  Bleasdale,  who  is  dead. 

But  we  think  this  argument  assumes  the  very  point  in  dispute.  If 
the  evidence  which  had  been  offered  of  the  execution  of  the  will,  had 
consisted  simply  in  proving  the  hand-writing  of  Bleasdale,  one  of  the  at- 
testing witnesses,  which  would  have  been  the  legitimate  mode  of  prov- 
ing the  attestation  by  him,  after  his  death,  it  might  indeed  have  been  ob- 
jected with  some  ground  of  reason,  that  such  evidence  could  not  be 
the  best,  whilst  another  of  the  attesting  witnesses  was  still  alive,  and 
within  the  jurisdiction  of  the  court.  For,  in  that  case,  the  proof  of 
the  hand-writing  only  would  have  done  no  more  than  raise  the  pre- 
sumption, that  he  witnessed  all  that  the  law  requires  for  the  due  exe- 
cution of  a  will;  whereas  the  surviving  witness  would  have  been  able 
to  give  direct  proof,  whether  all  the  requisites  of  the  statutes  had  been 
observed  or  not.  Such  direct  testimony,  therefore,  might  fairly  be 
considered  as  evidence  of  a  better  and  higher  nature  than  mere  pre- 
sumption arising  from  the  proof  of  the  witness's  hand-writing.  Stabi- 
tur  prjesumptioni,  donee  probetur  in  contrarium.  The  effect,  however, 
of  Bleasdale's  examination  is  not  merely  to  raise  a  presumption ;  it  is 
evidence  as  direct  to  the  point  in  issue,  and  as  precise  in  its  nature  and 
quality,  as  that  of  Proctor  when  called  in  person :  it  is  direct  evidence 
of  the  complete  execution  of  the  will,  by  the  statement  upon  oath  of 
the  observance  of  every  requisite  made  necessary  by  the  statute  of 
frauds.  If  Proctor  had  been  examined  in  the  present  action  by  the 
plaintiff  below,  there  can  be  no  doubt  but  the  examination  of  Bleas- 
dale on  the  last  trial  might  have  been  put  in,  to  contradict  him.  But 
on  what  principle  could  such  contradiction  have  been  admissible,  unless 
the  evidence  obtained  by  means  of  the  examination  was  of  as  high  a 
character  and  degree  as  that  of  the  viva  voce  examination  of  the  sur- 
viving witness?  If  the  parol  examination  of  Proctor  was  the  better 
evidence,  as  contended  for,  how  could  it  be  opposed  by  the  inferior 
evidence  of  Bleasdale's  examination? 

It  was  objected,  secondly,  that  not  to  allow  this  testimony,  that  is, 
to  dispense  with  the  necessity  of  calling  the  surviving  attesting  wit- 
ness, is,  in  effect,  to  destroy  the  security  intended  to  be  given  by  the 
statute  of  frauds.  For  it  is  said  that,  as  that  statute  requires  the  at- 
testation of  three  witnesses,  so,  to  allow  the  will  to  be  proved  upon  a 
trial  at  law  without  calling  an  attesting  witness,  so  long  as  one  of  the 
three  remains  in  life,  is  to  give  up  the  full  benefit  of  having  three 
witnesses  to  the  will.     It  may  be  observed,  however,  that  the  statute 


Sec.  2)  REQUIRED   WITNESSES  231 

of  frauds  did  not  look  primarily  to  the  mode  of  proving  the  will  when 
contested,  but  to  the  security  of  the  testator  at  the  time  of  the  execu- 
tion of  the  will ;  the  statute  intending  that  three  witnesses  should  be 
in  the  nature  of  guards  or  securities,  to  protect  him  in  the  execution 
of  his  will  against  force,  or  fraud,  or  undue  influence.  The  proof  of 
the  will  by  the  three  witnesses,  supposing  it  should  afterwards  come 
in  contest,  is  only  an  incidental  and  secondary  benefit,  derived  from 
that  mode  of  attestation.  Indeed  the  principle  of  this  objection,  if 
carried  to  its  full  extent,  would  require  the  will  to  be  proved  in  every 
case  by  the  three  witnesses.  It  is  well  settled,  however,  that,  in  an 
action  at  law,  it  is  sufficient  to  call  one  only  of  the  subscribing  witness- 
es, if  he  can  speak  to  the  observance  of  all  that  is  required  by  the  stat- 
ute; and  the  objection  itself  is  obviously  open  to  the  same  answer 
which  has  been  given  to  the  first,  viz.  that  the  evidence  resulting  from 
the  written  examination  of  the  deceased  witness,  in  the  former  suit 
between  the  same  parties,  is  of  as  high  a  nature,  and  as  direct  and  im- 
mediate, as  the  viva  voce  examination  of  one  of  the  witnesses  remain- 
ing alive,  and  actually  examined  in  the  cause. 

Upon  the  whole,  we  think  that,  after  the  proof  given  in  this  case  of 
the  examination  of  Bleasdale  and  his  subsequent  death,  the  will  and 
codicil  were  receivable  in  evidence  without  further  proof,  and  conse- 
quently that  a  venire  de  novo  must  be  awarded. 

Venire  de  novo  awarded. ° 

6  Courts  of  chancery  appear  to  have  required  the  examination  of  all  the 
attesting  witnesses  in  will  cases.  Townsend  v.  Ives,  1  Wilson,  216  (174S): 
"This  was  a  bill  preferred  by  the  legatees  under  the  will  of  John  Townsend, 
in  order  to  have  his  real  estate  sold  for  payment  of  their  legacies,  which  are 
charged  thereupon,  against  the  heir  at  law  of  the  testator  who  is  an  infant, 
and  to  have  the  will  established.  There  were  three  witnesses  to  the  will 
all  now  living,  but  only  one  has  been  examined,  who  proved  the  execution  of 
it,  and  the  attestation  of  the  other  two  witnesses.  But  his  Honour  refused 
to  establish  the  will  without  the  examination  of  all  the  witnesses,  for  it  is 
a  rule  that  all  the  witnesses  if  living  must  be  examined  to  prove  the  will:  be- 
sides the  heir  at  law  is,  in  this  case,  an  infant,  who.  if  of  age,  has  a  right 
to  cross-examine  all  the  witnesses;  and  as  no  admission  of  this  sort  can  be 
received  for  an  infant,  this  court  must  protect  his  right,  and  therefore  must 
insist  upon  all  those  requisites  which  he  would  have  a  right  to  insist  upon  if 
he  were  of  age,  and  capable  of  making  a  defense  for  himself." 

And  so  in  Bootle  v.  Blundell,  19  "S'es.  Jr.  494  (1815).  A  number  of  the  states 
have  consti-ued  their  wills  act  as  adopting  the  chancery  rule  for  proceedings 
to  probate  wills  in  solemn  form. 

At  law,  where  none  of  the  attesting  witnesses  are  available,  proof  of  the 
signature  of  one  of  the  attesting  witnesses  is  sufficient ;  no  other  proof  of  ex- 
ecution is  necessary.  Adam  v.  Kerr,  1  B.  &  P.  360  (1798) ;  Stebbins  v.  Dun- 
can, 108  U.  S.  32.  2  Sup.  Ct.  313,  27  L.  Ed.  641  (1882). 


232  wiTxXEssES  (Ch.  2 

SECTION  3.— PRIVILEGE 
I.  Self  Incrimination  • 


SCROOP'S  TRIAL. 
(Old  Bailey  Sessions,  1660.    5  How.  St.  Trials,  947.) 

In  the  course  of  the  trial  of  the  Regicides,  the  prosecution  sought 
to  prove  that  the  defendant  Scroop  acted  as  a  member  of  the  court  and 
took  part  in  the  proceedings  which  resulted  in  the  conviction  and  sen- 
tence of  Charles  I.'' 

Mr.  Clark  called. 

Counsel :  Mr.  Clark,  have  you  heard  the  question,  did  you  ever  see 
the  prisoner  at  the  bar  in  that  which  they  called  the  High  Court  of 
Justice? 

Clark:  I  do  remember  in  the  year  1649,  I  saw  the  prisoner  sitting 
in  that  which  they  called  the  High  Court  of  Justice  upon  the  trial  of 
the  king. 

Scroop:  My  lords,  you  may  desist  in  examining  witnesses  touch- 
ing my  sitting. 

Court :  Do  you  acknowledge  you  did  sit  in  that  which  they  called 
the  High  Court  of  Justice? 

Scroop:  Yes,  I  see  it  proved,  and  I  see  a  gentleman  here  in  my 
eyes  that  I  know  very  well.     I  will  not  deny  it. 

Court:  Did  you  sit  upon  the  Sentence  day,  that  is  the  evidence, 
which  was  the  27th  day  of  January  ?  You  are  not  bound  '  to  answer 
me,  but  if  you  will  not,  we  must  prove  it.     Do  you  confess  that? 

Scroop:  I  do  not  confess  that  I  stood  up  as  assenting  to  the  Sen- 
tence. 

Mr.  Clark  called. 

Counsel :    Mr.  Clark,  what  say  you  to  that? 

Clark:  I  did  not  take  particular  notice  of  him  that  day,  that  he 
stood  up;  but  the  whole  Court  stood  up,  to  my  apprehension,  but  I 
took  notice  that  he  was  there  then  present. 

«  For  the  history  of  this  privilege,  see  article  by  Prof.  Wlgmore,  5  Harv. 
Law  Rev.  71. 
7  Statement  condensed. 
«  That  this  was  a  new  doctrine  at  this  period,  see  3  Wigmore,  §  2250. 


Sec.  3)  PRIVILEGE  233 

REX  V.  WORSENHAM  et  al. 

'     (Court  of  King's  Bench,  1701.     1  Ld.  Raym.  705.) 

An  information  was  preferred  against  the  defendants  being  cus- 
tom-house officers,  for  forging  of  a  bond  supposed  to  be  given  by  a 
merchant  to  the  King  for  his  customs.  And  motion  was  made  on  be- 
half of  the  prosecutor,  to  have  the  custom-house  books  in  which  the 
entries  were  made,  &c.  brought  into  court,  to  convict  the  defendants. 
But  the  motion  was  denied,  because  the  said  books  are  a  private  con- 
cern, in  which  the  prosecutor  has  no  interest ;  and  therefore  it  would 
be  in  effect,  to  compel  the  defendants,  to  produce  evidence  against 
themselves.  And  the  court  never  makes  such  rules,  but  only  of  rec- 
ords, or  deeds  of  a  publick  nature." 


THE  KING  V.  INHABITANTS  OF  WOBURN. 

(Court  of  King's  Bench,  180S.     10  East,  395.) 

Upon  an  appeal  by  the  churchwardens  and  overseers  of  the  poor 
of  the  parish  of  St.  Alban  in  the  county  of  Hertford  against  an  order 
of  justices  for  the  removal  of  Mary  Brown,  widow,  and  her  children, 
from  the  parish  of  Woburn  in  the  county  of  Bedford  to  St.  Alban, 
John  Hilliard,  an  inhabitant  of  the  appellants'  parish  of  St.  Alban, 
and  rated  and  paying  to  the  poor's  rates  of  the  said  parish,  was  called 
as  a  witness  on  the  part  of  the  respondents,  and  refused  to  give  evi- 
dence. The  Sessions  were  of  opinion  that  the  said  John  Hilliard  was 
not  compellable  to  give  evidence,  and  quashed  the  said  order;  subject 
to  the  opinion  of  this  Court  on  the  point. 


»  And  so  in  Rex  v.  Cornelius,  2   Strange,  1210  (1745). 

See  Comments  on  this  class  of  cases  in  Atty.  Gen.  v.  Le  Merchant,  2  D.  & 
E.  201  (1788).  distinguishing  between  an  order  on  the  defendant  to  produce 
books  or  papers,  and  merely  permitting  the  prosecution  to  use  secondary  evi- 
dence of  the  contents  of  books  or  papers  which  the  defendant  declines  to 
produce  on  notice.  It  seems  that  the  privilege  is  confined  to  natural  persons 
and  that  a  corporation  has  no  privilege  which  will  excuse  the  production 
of  papers.    Hale  v.  Henkel,  201  U.  S.  43,  26  Sup.  Ct.  370,  50  L.  Ed.  G52  (1906). 

The  privilege  does  not  apply  to  papers  wrongfully  taken  from  a  defendant. 
Trask  v.  People,  151  111.  523,  38  N.  E.  248  (1894) ;  State  v.  Pomeroy.  130  Mo. 
489.  32  S.  W.  1002  (1S95) ;  People  v.  Adams,  176  N.  Y.  351,  68  N.  E.  636.  63  L. 
R.  A.  406,  98  Am.  St.  Rep.  675  (1903).  But  in  Weeks  v.  U,  S..  232  U.  S.  383.  34 
Sup.  Ct.  341,  58  L.  Ed.  652,  L.  R.  A.  1915B,  834,  Ann.  Cas.  1915C,  1177  (1913) 
it  was  held  that  the  Fourth  Amendment  to  tlie  Constitution  entitles  a  de- 
fendant to  the  restoration  of  papers  wrongfully  taken  from  him  by  the  pros- 
ecution; and  where  this  has  been  refused  by  the  court,  such  papers  should 
be  excluded  at  the  trial. 

But  see  Schenck  v.  U.  S.,  249  U.  S.  47.  39  Sup.  Ct.  247.  63  L.  Ed.  (1919) 

where  incriminating  documents  were  seized  under  a  valid  search  warrant. 

-^"^""^  ^^^-y^  ^^^^u^  ^ 


234  WITNESSES  (Ch.  2 

Lord  EllEnborough,  C.  J.,  now  delivered  the  judgment  of  the 
Court. 

This  Sessions  case  was  argued  on  Wednesday  last,  and  the  Court 
wished  to  consider,  whether  the  very-  ungracious  objection,  made  by 
a  rated  inhabitant  of  the  appealing  parish,  to  be  examined  as  a  witness, 
when  called  upon  by  the  respondents,  were  well  founded ;  and,  on  con- 
sideration, we  are  of  opinion  that  it  was.  The  parties  appealing  before 
the  court  of  quarter  sessions,  as  appeared  by  the  proceedings  returned 
to  this  court,  were  the  churchwardens  and  overseers  of  the  parish  of 
St.  Alban;  which  at  first  seemed  to  afford  an  answer  to  the  objection; 
that  the  inhabitant  proposed  to  be  called  was  not  a  party  to  the  proceed- 
ing: but  in  reality  the  appeal  is  by  them  on  behalf  of  the  inhabitants 
of  the  parish,  who  are  all  of  them,  paying  to  the  rates,  the  parties 
grieved,  and  are  all  directly  and  immediately  interested  in  the  event 
of  the  proceeding,  by  which  the  maintenance  of  the  pauper  is  to  be  fixed 
on  them,  or  removed  from  them,  as  well  as  the  costs.  It  is  a  long  es- 
tablished rule  of  evidence,  that  a  party  to  the  suit  cannot  be  called 
upon  against  his  will  by  the  opposite  party  to  give  evidence ;  and  we 
think  that  the  late  act  of  the  46th  of  the  king  does  not  break  in  upon 
this  rule.  That  act  takes  away  the  right  of  objecting  by  reason  only, 
or  on  the  sole  ground,  that  the  answering  the  question  may  establish, 
or  tend  to  establish,  that  the  witness  owes  a  debt,  or  is  otherwise  sub- 
ject to  a  civil  suit.  But  that  is  not  the  ground  of  the  present  objec- 
tion :  nor  does  it  appear  to  us  to  have  been  the  intention  of  the  leg- 
islature by  this  act  of  parliament  to  alter  the  situation  of  parties  to  a 
suit  or  proceeding,  more  especially  in  a  proceeding  such  as  the  pres- 
ent, where  the  situation  of  Hilliard,  the  person  proposed  to  be  ex- 
amined, did  not  bring  him  within  the  words  of  the  act,  nor  the  incon- 
venience intended  to  be  remedied  by  it.'  We  therefore  are  of  opinion 
that  the  Sessions  have  properly  determined  the  party  not  to  be  com- 
pellable to  give  evidence.  And  that  their  order,  quashing  the  order 
of  the  two  justices,  must  be  affirmed.^" 


BRYAN  et  al.  v.  STATE. 
(Supreme  Court  of  Georgia,  1870.     40  Ga.  688.) 

Bryan,  A.  J.  Moye  and  N,  M.  Weaver,  were  required  by  rule  to  ap- 
pear before  the  Superior  Court  and  show  cause  why  they  should  not 
be  fined  for  a  neglect  of  their  duties  as  road  commissioners  of  the 
county.  They  answered  and  were  at  issue  with  the  State;  they  were 
tried  jointly.     The  solicitor  general  proposed  to  examine  said  Bryan 

10  And  so  in  Benoist  v.  Darby,  12  Mo.  106  (1848),  a  person  for  whose  use 
the  action  was  brought  not  compellable  to-  testify.  This  privilege  has  been 
abolishcMl  in  practically  all  jurisdictions;  e.  g.  Code  Civ.  Proc.  N.  Y.  §  828, 
ante,  p.  170. 


Sec.  3)  PRIVILEGE  235 

as  a  witness  for  the  State.  Defendant's  counsel  contended  that  this 
was  a  criminal  proceeding,  and  that  Bryan  could  not  be  compelled 
to  testify  against  himself.  The  Court  overruled  the  objection,  Bryan 
was  examined,  and  the  State  closed.  Weaver  and  Moye  testified  in 
behalf  of  defendants.  The  Court  fined  each  of  said  parties  $50.00. 
Compelling  Bryan  to  testify  is  assigned  as  error.  Other  points  were 
made  but  were  not  passed  upon  by  this  court  in  this  case. 

McCay,  J.  It  has  been  from  time  immemorial  a  settled  principle 
of  the  common  law,  that  no  one  shall  be  compelled  to  answer  any  ques- 
tion as  a  witness,  tending  to  criminate  himself  or  to  subject  him  to  a 
fine  or  forfeiture,  or  any  criminal  charge.  1  Greenleaf,  Ev.  pages  620, 
621.  Our  Evidence  Act  of  1866,  Code,  section  3798,  making  all 
persons  competent  and  compellable  to  be  witnesses,  contains  sub- 
stantially the  same  principle.  The  words  used  are :  "No  person  shall 
be  compellable  to  answer  any  question  tending  to  criminate  himself  or 
herself." 

It  is  true  this  is  not  exactly  a  criminal  case,  yet,  it  closely  analogizes 
itself  to  such  cases.  The  Court  will,  if  the  jury  sustain  the  com- 
plaint, fine  the  defendant,  and  the  answer  to  the  questions  will  be  an 
answer  to  a  question  tending  to  criminate  the  witness.  We  think 
therefore  it  was  error  in  the  Court  to  compel  this  witness  to  answer, 
he  objecting. 

Judgment  reversed. 


STATE  v.  GARRETT  et  al. 
(Supreme  Court  of  North  Carolina,  1S74.     71  N.  C.  85,  17  Am.  Rep.  1.) 

The  prisoners  were  charged  with  the  murder  of  Alvina  Garrett, 
a  girl  of  fourteen  years  of  age;  on  the  trial,  Lucy  Stanley  was  ac- 
quitted. 

The  evidence  for  the  State  established  that  on  the  26th  of  August, 
1873,  the  prisoners  made  an  out-cry  that  the  deceased  came  to  her 
death  by  her  clothes  accidentally  catching  fire  while  she  was  asleep; 
and  when  the  witness  reached  the  house  where  the  body  of  the  girl, 
and  where  the  prisoners  were,  Anica  Garrett  told  the  witness  that 
"she,"  Anica,  "was  asleep  when  she  was  awakened  by  the  deceased 
screaming;  that  she  went  to  her,  her  clothes  were  still  burning,  and 
in  attempting  to  put  out  the  flames,  she,  Anica,  burnt  one  of  her 
hands." 

By  Dr.  Walker,  the  examining  physician  on  the  Coroner's  inquest, 
it  was  proved  that  the  body  of  the  deceased  girl  was  not  burned  be- 
fore, but  after  death,  there  being  no  serum  in  the  blisters,  &c. 

The  prisoner,  Anica,  w^hile  under  arrest,  and  very  much  agitated 
before  the  Coroner,  and  after  the  jury  had  rendered  their  verdict 
against  her,  in  their  presence,  was  ordered  by  the  Coroner  to  unwrap 


236  WITNESSES  (Ch.  2 

the  hand  she  alleged  had  been  burnt,  and  show  it  to  Dr.  Walker,  so 
that  it  might  be  seen  if  it  had  been  burned  or  not.  This  she  did,  and 
there  was  no  indication  whatever  of  any  burn  upon  it.  This  evidence 
was  objected  to  by  the  counsel  for  the  prisoner,  because  it  was  in  sub- 
stance compelling  the  prisoner  to  furnish  evidence  against  herself ; 
and  that  being  under  arrest,  and  alarmed,  nothing  which  she  had 
said  or  done  while  under  arrest,  and  at  the  Coroner's  command,  was 
admissible  in  evidence  against  her,  she  not  having  been  cautioned  and 
informed  of  her  rights  according  to  law. 

The  Court  ruled  that  anything  the  prisoner  said  at  the  inquest  was 
inadmissible,  but  that  the  actual  condition  of  her  hand,  although  she 
was  ordered  by  the  Coroner  to  unwrap  it  and  exhibit  to  the  doctor, 
was  admissible  as  material  evidence  to  contradict  her  statement  to  the 
witness  on  the  night  of  the  homicide  and  before  she  was  arrested. 
To  this  ruling,  counsel  for  prisoner  excepted. 

The  jury  returned  a  verdict  of  guilty.  Rule  for  a  new  trial,  granted 
and  discharged.     Judgment  of  death  and  appeal  by  prisoner. 

Bynum,  J.  The  prisoner  objected  to  the  admissibility  of  the  evi- 
dence as  to  the  condition  of  her  hand  and  relied  upon  the  case  of 
State  V.  Jacobs,  50  N.  C.  259. 

The  distinction  between  that  and  our  case  is  that  in  Jacobs'  case, 
the  prisoner  himself,  on  trial,  was  compelled  to  exhibit  himself  to  the 
jury,  that  they  might  see  that  he  was  within  the  prohibited  degree  of 
color,  thus  he  was  forced  to  become  a  witness  against  himself.  This 
was  held  to  be  error. 

In  our  case,  not  the  prisoners,  but  the  witnesses,  were  called  to  prove 
what  they  saw  upon  inspecting  the  prisoner's  hand,  although  that  in- 
spection was  obtained  by  intimidation. 

The  prisoner  had  alleged  that  she  had  her  hand  burned  in  endeavor- 
ing to  extinguish  the  fire  upon  the  deceased,  and  at  the  Coroner's  in- 
quest she  carried  her  hand  wrapped  up  in  a  handkerchief  and  thus 
concealed  it  from  view.  She  was  made  to  unwrap  and  show  her  hand 
to  the  physician,  which  thus  exposed,  upon  examination,  showed  no 
indication  of  a  burn.  It  was  evidently  a  fraud  adopted  to  give  counte- 
nance and  support  to  her  story,  and  the  Coroner  was  justified  in  ex- 
posing a  trick  upon  the  public  justice  of  the  country. 

The  later  cases  are  uniform  to  the  point  that  a  circumstance  tend- 
ing to  show  guilt  may  be  proved,  although  it  was  brought  to  light  by 
declaration,  inadmissible,  per  se,  as  having  been  obtained  by  improper 
influence.  Arch.  Crim.  PI.  131,  and  note  by  Waterman,  State  v. 
Johnson,  67  N.  C.  55.  Familiar  illustrations  are  where  the  accused  is, 
by  force,  made  to  put  his  foot  in  a  track,  or  allow  the  foot  to  be 
measured,  where  he  is,  by  duress,  compelled  to  produce  stolen  goods, 
or  to  disclose  their  hiding  place,  and  they  are  there  found.  In  these 
cases  the  facts  thus  brought  to  light  are  competent  evidence,  though 
the  declarations  of  the  accused,  made  at  the  time,  are  excluded  as  hav- 
ing been  obtained  by  improper  influence. 


Sec.  3)  PRIVILEGE  237 

We  have  carefully  examined  the  whole  record,  and  we  find  no  de- 
fect therein. 

There  is  no  error.  This  will  be  certified  to  the  Court  below  that 
further  proceedings  be  there  had,  according  to  law. 

Per  Curiam.     Judgment  affirmed.^^ 


PEOPLE  V.  TYLER. 

(Supreme  Court   of   California,   1869.     36   Cal.   .522.) 

Sawyer,  C.  J."  *  *  *  At  the  trial  the  defendant  did  not  avail 
himself  of'  the  right  conferred  by  this  Act  [St.  1865-66,  p.  865]  to 
offer  himself  as  a  witness  on  his  own  behalf.  During  the  argument 
of  the  case,  the  District  Attorney  called  the  attention  of  the  jury  to 
the  fact  that  the  defendant  had  not  testified  in  his  own  behalf,  and 
argued  and  insisted  before  said  jury  that  the  silence  of  the  defendant 
was  a  circumstance  strongly  indicative  of  defendant's  guilt.  Defend- 
ant's counsel  objected  to  this  course  of  argument,  and  requested  the 
Court  to  require  the  District  Attorney  to  refrain  from  urging  such 

11  And  so  wliere  intimidation  was  used  to  compel  a  defendant  to  produce 
a  pistol.  State  v.  Turner,  82  Kan.  787,  109  Pac.  654,  32  L.  R.  A.  (N.  S.)  772, 
136  Am.  St.  Rep.  129  (1910) ;  or  to  trj'  on  clothing.  Holt  v.  U.  S.,  218  U.  S. 
245.  31  Sup.  Ct.  2,  54  L.  Ed.  1021,  20  Ann.  Cas.  1138  (1910). 

That  the  privilege  was  not  violated  where  the  sheriff  took  the  defendant's 
shoes  and  compared  them  with  certain  tracks,  see  State  v.  Barela,  23  N.  M. 
395.  168  Pac.  545,  L.  R.  A.  1918B,  844  (1917),  annotated. 

In  State  v.  Ah  Chuey,  14  Nev.  79,  33  Am.  Rep.  530  (1879),  it  was  held  tliat 
the  privilege  was  not  violated  bv  a  compulsory  examination  of  the  defendant's 
arm.  But  in  Blackwell  v.  State,  67  Ga.  76,  44  Am.  Rep.  717  (ISSl),  it  was 
held  error  to  compel  the  defendant  to  exhibit  his  leg  to  a  witness  in  the  pres- 
ence of  the  jury.  For  a  collection  of  the  cases,  see  People  v.  Gardner,  28  L. 
R.  A.  G99  (1894),  annotated  case. 

In  the  earlier  periods  it  seems  to  have  been  taken  as  a  matter  of  course 
that  the  defendant  might  be  inspected  in  the  presence  of  the  jury.  In  the 
trial  of  Capt.  Thomas  Vaughan  on  a  charge  of  treason  before  l^ord  Chief 
Justice  Holt,  assisted  by  several  other  judges,  at  the  Old  Bailey  in  1696,  13 
Howell's  State  Trials  485,  the  practice  is  illustrated  by  the  following  (page 
517): 

"Mr.  Phipps:    Did  you  know  any  other  Thomas  Vaughan  but  this? 

"French:     No,  not  in  Galloway. 

"Rivet:  This  may  be  a  confirmation  of  what  I  say;  if  it  be  the  same  gen- 
tleman, his  hair  is  reddish. 

"L.  C.  J.:  Pull  off  his   peruke  (which  was  done). 

"Vaughan:     My  hair  is  not  red. 

"L.  C.  J.:  How  are  his  eye  brows? 
•     "Vaughan:  A  dark  brown,  my  lord,  the  same  as  my  wig. 

"Baron  Powis:  Let  somebody  look  on  it  more  particularlj'.  (Then  an  of- 
ficer took  a  candle,  and  looked  on  his  head,  but  it  was  shaved  so  close  the 
colour  could  not  be  discerned.)" 

In  modem  times  it  is  considered  proper  to  require  a  defendant  to  stand 
up  in  the  presence  of  the  jury  in  order  that  a  witness  might  identify  him. 
People  V.  Gardner,  144  N.  Y.  119.  38  N.  E.  1003,  28  U  R.  A.  699.  43  Am. 
St.  Rep.  741  (1894) ;  State  v.  Ruck,  194  Mo.  416,  92  S.  W.  706,  5  Ann.  Cas. 
976  (1906). 

12  Statement  and  part  of  opinion  omitted. 


238  WITNESSES  CCh.  2 

inference,  but  the  Court  declined  to  interfere,  and  intimated  that 
the  law  justified  the  counsel  in  the  course  pursued.  Counsel  thereupon 
continued  to  urge  before  the  jury  that  the  silence  of  the  defendant  was 
a  circumstance  tending  strongly  to  prove  his  guilt,  and  the  counsel 
for  the  prisoner  excepted. 

At  the  close  of  the  argument  of  the  case  to  the  jury  the  defendant's 
counsel  asked  the  Court  to  give  to  the  jury  the  following  instruc- 
tion: "The  jury  should  not  draw  any  inference  to  the  prejudice  of 
the  defendant  from  the  fact  that  he  did  not  offer  himself  as  a  witness 
in  his  own  behalf.  It  is  optional  with  a  defendant  to  do  so  or  not, 
and  the  law  does  not  intend  that  the  jury  should  put  any  construction 
upon  his  silence  unfavorable  to  him."  The  Court  refused  to  give 
the  instruction,  and  defendant  excepted.  The  action  of  the  Court  in 
the  premises  is  claimed  to  be  erroneous.     *     *     * 

Upon  an  examination  of  the  Act,  we  find  that  a  person  charged 
with  an  offense,  "shall,  at  his  own  request,  but  not  otherwise,  be 
deemed  a  competent  witness."  It  is  optional  with  him,  then,  whether 
he  will  testify  or  not;  and  section  2  provides  that  "nothing  herein  con- 
tained shall  be  construed  as  compelling  any  person  to  testify."  This 
is  but  a  re-enactment  by  the  statute  of  that  provision  of  our  State  Con- 
stitution, which  says,  no  person  "shall  be  compehed  in  any  criminal 
case  to  be  a  witness  against  himself."     (Art.  1,  Sec.  8.) 

At  the  trial,  by  his  plea  of  not  guilty,  the  party  charged  denies  the 
charge  against  him.  This  is  itself  a  positive  act  of  denial,  and  puts 
upon  the  People  the  burden  of  affirmatively  proving  the  oft'ense  alleged 
against  him.  When  he  has  once  raised  this  issue  by  his  plea  of  not 
guilty  the  law  says  he  shall  thenceforth  be  deemed  innocent  till  he  is 
proved  to  be  guilty,  and  both  the  common  law  and  the  statute  give 
him  the  benefit  of  any  reasonable  doubt  arising  on  the  evidence.  Now, 
if,  at  the  trial,  when,  for  all  the  purposes  of  the  trial,  the  burden  is 
on  the  People  to  prove  the  offense  charged  by  affirmative  evidence,  and 
the  defendant  is  entitled  to  rest  upon  his  plea  of  not  guilty,  an  in- 
ference of  guilt  could  legally  be  drawn  from  his  declining  to  go  upon 
the  stand  as  a  witness,  and  again  deny  the  charge  against  him  in  the 
form  of  testimony,  he  would  practically,  if  not  theoretically,  by  his 
act  declining  to  exercise  his  privilege,  furnish  evidence  of  his  guilt  that 
might  turn  the  scale  and  convict  him.  In  this  mode  he  would  indirect- 
ly and  practically  be  deprived  of  the  option  which  the  law  gives  him, 
and  of  the  benefit  of  the  provision  of  the  law  and  the  Constitution, 
which  say,  in  substance,  that  he  shall  not  be  compelled  to  criminate 
himself.  If  the  inference  in  question  could  be  legally  drawn  the  very 
act  of  exercising  his  option  as  to  going  upon  the  stand  as  a  wit- 
ness, which  he  is  necessarily  compelled  by  the  adoption  of  the  stat- 
ute to  exercise  one  way  or  the  other,  would  be,  at  least  to  the  extent 
of  the  weight  given  by  the  jury  to  the  inference  arising  from  his 
declining  to  testify,   a  crimination   of   himself. 


Sec.  3)  PRiviLEGK  239 

Whatever  the  ordinary  rule  of  evidence  with  reference  to  inferences 
to  be  drawn  from  the  failure  of  parties  to  produce  testimony  that 
must  be  in  their  power  to  give,  we  are  satisfied  that  the  defendant, 
with  respect  to  exercising  his  privilege  under  the  provision  of  the  Act 
in  question,  is  entitled  to  rest  in  silence  and  security  upon  his  plea  of 
not  guilty,  and  tliat  no  inference  of  guilt  can  be  properly  drawn  against 
him  from  his  declining  to  avail  himself  of  the  privilege  conferred  upon 
him  to  testify  on  his  own  behalf;  that  to  permit  such  an  inference 
would  be  to  violate  the  principles  and  the  spirit  of  the  Constitution  and 
the  statute,  and  defeat  rather  than  promote  the  object  designed  to  be 
accomplished  by  the  innovation  in  question. 

We  are  of  opinion,  therefore,  that  the  Court  erred  in  permitting 
the  District  Attorney  to  pursue  the  line  of  argument  to  which  objec- 
tion and  exception  were  taken,  and  intimating  its  approbation  of  the 
ground  taken,  and,  especially  after  what  had  transpired,  in  refusing  the 
instruction  asked  on  behalf  of  defendant  for  the  purpose  of  correcting 
any  erroneous  view  that  might  have  been  impressed  on  the  minds  of 
the  jury.  We  think  such  instruction  proper  in  all  cases  where  the  de- 
fendant desires  it.     *     *     *  ^^ 


PEOPLE  v.  DUPOUNCE. 

(Supreme  Court  of  Michigan,  1903.     133  Mich.  1,  94  N.  W.  388,  103  Am.  St. 

Kep.  435,  2  Auu.  Cas.  246.) 

Carpenter,  J.  Defendant  was  convicted  in  the  court  below  of  the 
offense  of  bastardy.  The  complaint  alleged,  and  the  evidence  for  the 
people  tended  to  prove,  that  the  bastard  child  was  born  February  9, 
1901,  and  that  it  was  begotten  on  or  about  M'ay  15,  1900.  The  com- 
plaining witness  testified  that  she  became  16  years  of  age  March  17, 
1901.  Defendant  became  a  witness  in  his  own  behalf,  and  on  direct 
examination  testified  that  he  did  not  have  intercourse  with  the  com- 
plaining witness  in  the  months  of  April  or  May,  1900.  On  cross-ex- 
amination, despite  defendant's  objection  that,  contrary  to  section  32 

13  statutes  in  nearly  all  of  the  states  now  provide  ttat  the  failure  of  the 
accused  to  testify  in  his  own  behalf  shall  not  create  any  presumption  against 
him,  thus  impliedly  excluding  adverse  inference  or  comment.  Com.  v.  Har- 
low, 110  Mass.  411  (1872).  In  the  absence  of  such  statutory  restrictions 
there  is  a  strong  tendency  to  hold  that  the  failure  of  the  defendant  to  tes- 
tify is  the  proper  suliject  of  comment  and  inference.  State  v.  Bartlett,  55 
Me.  200  (1867) ;  Parker  v.  State,  61  N.  J.  Law,  308.  .39  Atl.  651  (1898),  fol- 
lowed in  several  later  cases  in  that  state.  This  view  api)oars  out  of  harmony 
with  the  rule  applied  to  other  privileges.  It  may  be  quite  natural  to  infer 
that  an  accused  remains  silent  because  he  cannot  truthfully  deny  the  charges, 
but  there  are  other  possible  and  not  improbable  explanations.  An  innocent 
man  might  consider  it  wiser  to  remain  silent  rather  than  to  be  compelled  to 
disclose  suspicious  circumstances  which  would  probably  outweigh  his  denial, 
People  V.  Forbes,  143  N.  Y.  219.  38  N.  E.  303  (1894) ;  or,  though  innocent  of 
the  offense  in  question,  he  might  be  compelled  to  disclose  a  more  serious 
crime,  as  in  I'eople  v.  Dupounce,  po.st,  p.  239. 


240  WITNESSES  (Ch.  2 

of  article  6  of  the  Constitution  of  Michigan,  he  was  thereby  compelled 
to  be  a  witness  against  himself,  he  was  made  to  answer  questions  which 
proved  that  he  had  sexual  intercourse  with  the  complaining  witness  in 
December,  1899,  and  that  this  continued  until  April  1,  1900;  and  that, 
though  their  relation  was,  on  account  of  his  illness,  interrupted  in 
April  and  May,  it  was  resumed  after  June  1st.  The  sole  question 
raised  in  this  court  relates  to  the  ruling  compelling  defendant  to  give 
this  testimony. 

While  it  is  clear  that  the  cross-examination  in  this  case  compelled 
defendant  to  testify  to  the  commission  of  the  crime  of  rape,  as  the 
complaining  witness  was  less  than  16  years  of  age  (see  section  11,489, 
3  Comp.  Laws  1897),  and  though  he  could  not  be  convicted  of  the 
offense  charged  in  the  complaint  by  reason  of  the  intercourse  occur- 
ring before  April  1,  or  after  June  1,  1900  (see  Hull  v.  People,  41  Mich. 
167,  2  N.  W.  175),  nevertheless  testimony  establishing  these  other  acts 
of  intercourse  had  a  legitimate  tendency  to  prove  defendant  guilty  of 
the  offense  for  which  he  was  being  tried,  and  therefore  to  contradict 
his  testimony  on  direct  examination.  See  People  v.  Schilling,  110 
Mich.  412,  68  N.  W.  233 ;  People  v.  Keefer,  103  Mich.  83,  61  N.  W. 
338:  Matthews  v.  Detroit  Journal  Co.,  123  Mich.  608,  82  N.  W.  243; 
People  v.  Jamieson,  124  Mich.  164,  82  N.  W.  835.  If  defendant,  by 
availing  himself  of  the  privilege  of  testifying  in  his  own  behalf,  given 
him  by  our  statute  (see  section  10,211,  3  Comp.  Laws  1897),  waived  his 
constitutional  right  to  refuse  to  answer  the  questions  complained  of, 
the  ruling  of  the  trial  court  is  correct;  otherwise,  it  is  erroneous. 
While  this  court  has  held  (see  People  v.  Howard,  73  Mich.  10,  40  N. 
W.  789)  that  a  defendant  who  takes  the  stand  as  a  witness  in  his  own 
behalf  is  subject  to  the  same  inquiries  upon  cross-examination  as  any 
other  witness,  neither  that  nor  any  other  decision  of  this  court  can 
be  said  to  be  an  authority  touching  the  precise  question  involved  in 
this  case. 

The  question  has,  however,  received  the  attention  of  the  courts  of 
many  of  our  sister  states.  Contrary  to  the  views  of  that  eminent  au- 
thor and  judge,  Mr.  Justice  Cooley  (see  his  Constitutional  Limitations, 
at  page  317),  it  seems  to  have  been  universally  held  that  the  defendant, 
by  taking  the  stand  in  his  own  behalf,  thereby  waives,  to  a  certain  ex- 
tent at  least,  his  constitutional  right  to  refuse  to  testify.  While  the 
Supreme  Court  of  Maine  has  held  that  the  statute  of  that  state,  which 
reads,  "The  defendant  in  a  criminal  prosecution  who  testifies  in  his 
own  behalf  shall  not  be  compelled  to  testify  on  cross-examination  to 
facts  which  would  convict  him  or  furnish  evidence  to  convict  him  of 
any  other  crime  than  that  for  which  he  is  on  trial,"  "does  not  alter 
the  law  as  it  stood  in  this  state  before  the  enactment"  (see  State  v. 
Witham,  72  Me.,  at  page  534),  the  overwhelming  weight  of  authority 
supports  the  proposition,  contended  for  by  the  people,  that  he  thereby 
waives  his  constitutional  right  to  refuse  to  answer  any  question,  ma- 
terial to  the  case,  which  would,  in  the  case  of  any  other  witness,  be 


Sec.  3)  PRIVILEGE  241 

legitimate  cross-examination.  Commonwealth  v.  Nichols,  114  Mass. 
285,  19  Am.  Rep.  346 ;  Commonwealth  v.  Bonner,  97  Mass.  587 ;  Com- 
monwealth V.  Mullen,  97  Mass.  545 ;  Commonwealth  v.  Morgan,  107 
Mass.  199;  Foster  v.  Pierce,  11  Cush.  (Mass.)  437,  59  Am.  Dec.  152; 
Commonwealth  v.  Smith,  163  Mass.  431,  40  N.  E.  189;  Connors  v. 
People,  50  N.  Y.  240;  People  v.  Tice,  131  N.  Y.  651,  30  N.  E.  494,  15 
L.  R.  A.  669;  State  v.  Ober,  52  N.  H.  459,  13  Am.  Rep.  88;  Norfolk 
V.  Gaylord,  28  Conn.  309;  State  v.  Allen,  107  N.  C.  805,  11  S.  E. 
1016;  State  v.  Pancoast,  5  N.  D.  516,  67  N.  W.  1052,  35  L.  R.  A.  at 
page  527;  Disque  v.  State,  49  N.  J.  Law,  249,  8  Atl.  281;  State  v. 
Cohn,  9  Nev.  189. 

And  this  principle  applies,  even  though  the  answers  to  such  questions 
tend  to  prove  him  guilty  of  some  other  crime  than  that  for  which  he 
is  on  trial.  Commonwealth  v.  Nichols,  State  v.  Pancoast,  and  Connors 
V.  People,  supra. 

As,  in  this  state,  a  witness  may  be  asked,  on  cross-examination,  any 
question  material  to  the  issue  (People  v.  Barker,  60  Mich,  at  page  302, 
27  N.  W.  539,  1  Am.  St.  Rep.  501 ;  Ireland  v.  R.  R.  Co.,  79  Mich., 
at  page  164,  44  N.  W.  426;  Hemminger  v.  Western  Assurance  Co., 
95  Mich,  at  page  359,  54  N.  W.  949),  we  are  forced  to  the  conclusion 
that  there  was  no  error  in  the  ruling  complained  of,  and  that  the  con- 
viction should  be  affirmed.    The  other  Justices  concurred.^* 


MORRIS  v.  McCLELLAN. 

(Supreme  Court  of  Alabama,  1908.     154  Ala.  639,  45  South.  641,  16  Ann.  Cas. 

305.) 

DowDEivL,  J.^°  This  is  an  action  to  recover  damages  for  an  assault 
and  battery  committed  on  the  plaintiff  by  the  defendant.  The  defend- 
ant pleaded  the  general  issue,  and  a  number  of  special  pleas,  in  which 
it  was  attempted  to  set  up  matter  in  justification  of  the  assault.    *    *    * 

The  plaintiff'  filed  interrogatories  to  the  defendant  under  section  1850 

14  In  Fitzpatrick  v.  United  States,  ITS  U.  S.  304,  20  Sup.  Ct.  944,  44  L.  Ed. 
1078  (1900),  where  a  defendant  testified  to  an  alibi,  it  was  held  that  he  was 
bound  to  answer  questions  tending  to  show  his  connection  with  the  offense 
in  question,  but  there  was  no  suggestion  of  any  collateral  olfense. 

In  SUite  V.  Wentworth,  65  Me.  234,  20  Am.  Rep.  688  (1875),  the  defendant 
had  denied  the  authority  of  a  clerk  to  make  a  sale  of  liquor,  and  the  court 
held,  limiting  several  earlier  cases,  including  Low  v.  Mitchell,  18  Me.  372 
(1841),  that  he  was  bound  to  answer  as  to  certain  prior  sales  by  himself.  The 
same  rule  was  applied  in  Powers  v.  United  States,  223  U.  S.  303,  32  Sup.  Ct. 
281,  56  L.  Ed.  448  (1912),  where  the  defendant  was  required  to  testify  to  prior 
criminal  acts;  and  so  in  Com.  v.  Nichols,  114  Mass.  285,  19  Am.  Rep.  340 
(1873).  But  it  would  seem  that  the  waiver  does  not  extend  to  disc  onnected 
crimes  merely  affecting  credibility.  State  v.  Kent,  5  N.  D.  516,  67  N.  W. 
1052,  35  L.  R.  A.  518  (1895). 

16  Statement  and  part  of  opinion  omitted. 
HiNT.Ev. — 16 


1 


\r      IJ^ju^  o-^  ^yiox  <^-^ri/>--<  J^^^^*^^ ' 

"^^  WITNESSES  (Cll.  2 

et  seq.  of  the  Code  of  1896.     Some  of  the  questions  propounded  the 
defendant  answered,  and  others  he  refused  to  answer  on  the  ground 
that  he  could  not  be  required  to  give  evidence  which  might  subject  him 
to  criminal  punishment.     In  so  doing  he  exercised  his  constitutional 
right.     The  interrogatories,  with  the  answers  to  certain  questions  and 
•ip   the  refusal  to  answer  others,  were  read  to  the  jury.    The  defendant's 
'^    refusal  to  answer  certain  questions  was  the  subject  of  comment  in 
\.   argument  by  counsel  to  the  jury.     The   question   is  now   presented 
^^ whether  it  was  permissible  for  the  plaintiff,  over  the  defendant's  objec- 
N^    tion,  to  read  to  the  jury  those  interrogatories  which  the  defendant  re- 
>yV    fused  to  answer,  and  the  defendant's  ground  of  refusal,  and  to  com- 
Nj    ment  on  the  same  in  argument.    In  criminal  prosecutions  the  failure  or 
n|      o>    refusal  of  the  defendant  to  testify  cannot  be  commented  on  in  argu- 
ment ;  but  we  know  of  no  authority  applying  this  rule  to  civil  actions, 
nor  do  we  see  any  reason  for  so  doing.    The  plaintiff  in  a  civil  action 
has  rights,  as  well  as  the  defendant;   and  one  of  these  rights  is  to  se- 
cure evidence  to  support  his  cause  in  court,  even  to  calling  upon  the 
defendant  as  a  witness  to  supply  it.     It  has  always  been  the  rule  in 
civil  actions  that  the  failure  of  a  party  to  the  suit,  when  present  at  the 
trial,  to  testify  as  to  a  fact  in  issue,  furnished  legitimate  ground  of 
comment  in  argument  to  the  jury  by  the  opposite  party.    The  defend- 
ant availed  himself  of  his  constitutional  right  of  refusal  to  answer  on 
the  ground  stated,  and  he  had  his  benefit  and  protection  from  prosecu- 
tion in  exercising  his  privilege ;  but  he  could  not  expect  to  extend  this 
privilege  to  the  deprivation  of  the  plaintiff  of  his  right  to  comment  in 
argument  on  his  silence,  no  matter  upon  what  ground  he  might  put  it. 
Vv''e  are  of  the  opinion  that  the  trial  court  committed  no  error  in  its 
rulings  on  this  question. 
^  For  the  errors  pointed  out,  the  judgment  will  be  reversed,  and  the 

^       cause  remanded. 

Reversed  (on  other  gtounds). 


'  r 


16 


CAMINETTI  V.  UNITED  STATES. 
DIGGS  V.  SAME. 
HAYS  V.  SAME. 

(Supreme  Court  of  the  United  States,  1917.     242  U.  S.  470,  37  Sup.  Ct.  192, 
61  L.  Ed.  442,  L.  R.  A.  1917F,  502.) 

Caminetti,  Diggs,  and  Hays  were  separately  indicted  and  convicted 
in  the  United  States  District  Court  on  charges  of  violating  the  stat- 
ute known  as  the  "White  Slave  Act"  (Comp.  St.  §§  8812-8819). 
These  convictions  were  afiirmed  by  the  Circuit  Court  of  Appeals,  220 

18  Where  a  witness,  not  a  party,  exercises  his  privilege,  there  can  be  no 
inference  against  either  party.  Beach  v.  United  States  (C.  C.)  46  Fed.  754 
(1890). 


Sec.  3)  PRIVILEGE}  243 

Fed.  545,  136  C.  C.  A.  147,  231  Fed.  106,  145  C.  C.  A.  294.  The  de- 
fendants obtained  writs  of  certiorari  to  review  these  decisions.  In  the 
Supreme  Court  the  cases  were  argued  together. ^^ 

Mr.  Justice  Day  [after  upholding  the  vahdity  of  the  statute,  and  the 
construction  placed  upon  it  by  the  trial  court]  :  Notwithstanding  this 
disposition  of  the  questions  concerning  the  construction  and  consti- 
tutionality of  the  act,  certain  of  the  questions  made  are  of  sufficient 
gravity  to  require  further  consideration. 

In  the  Diggs  Case,  after  referring  to  the  fact  that  the  defendant 
had  taken  the  stand,  in  his  own  behalf,  and  that  his  testimony  differed 
somewhat  from  that  of  the  girls  who  had  testified  in  the  case,  and  in- 
structing the  jury  that  it  was  their  province  to  ascertain  the  truth  of 
the  matter,  the  court  further  said:  "After  testifying  to  the  relations 
between  himself  and  Caminetti  and  these,  girls  down  to  the  Sunday 
night  on  w-hich  the  evidence  of  the  government  tends  to  show  the  trip 
to  Reno  was  taken,  he  stops  short  and  has  given  none  of  the  details 
or  incidents  of  that  trip  nor  any  direct  statement  of  the  intent  or  pur- 
pose with  which  that  trip  was  taken,  contenting  himself  by  merely 
referring  to  it  as  having  been  taken,  and  by  testifying  to  his  state  of 
mind  for  some  days  previous  to  the  taking  of  that  trip.  |_Now  this 
was  the  defendant's  privilege,  and,  being  a  defendant,  he  could  not  be 
required  to  say  more  if  he  did  not  desire  to  do  so;  nor  could  he  be 
cross-examined  ^^  as  to  matters  not  covered  by  his  direct  testimony^ 
But  in  passing  upon  the  evidence  in  the  case  for  the  purpose  of  find^ 
ing  the  facts  you  have  a  right  to  take  this  omission  of  the  defendant 
into  consideration.  A  defendant  is  not  required  under  the  law  to 
take  the  witness  stand.  He  cannot  be  compelled  to  testify  at  all,  and 
if  he  fails  to  do  so,  no  inference  unfavorable  to  him  may  be  drawn 
from  that  fact,  nor  is  the  prosecution  permitted  in  that  case  to  com- 
ment unfavorably  upon  the  defendant's  silence  ;^^  but  where  a  de- 
fendant elects  to  go  upon  the  w'itness  stand  and  testify,  he  then  sub- 
jects himself  to  the  same  rule  as  that  applying  to  any  other  witness, 
and  if  he  has  failed  to  deny  or  explain  acts  of  an  incriminating  nature 
that  the  evidence  of  the  prosecution  tends  to  establish  against  him, 
such  failure  may  not  only  be  commented  upon,  but  may  be  considered 
by  the  jury  with  all  the  other  circumstances  in  reaching  their  conclu- 
sion as  to  his  guilt  or  innocence;   since  it  is  a  legitimate  inference  that, 

17  Statement  has  been  condensed  and  part  of  opinion  and  the  dissenting 
opinion  of  ]Mr.  Justice  McKenna  omitted. 

18  But  see  Fitzpatriclc  v.  United  States,  178  U.  S.  304,  20  Sup.  Ct.  914,  44 
L.  Ed.  107S  (1900).  and  Powers  v.  United  States,  223  U.  S.  303,  32  Sup.  Ct.  281. 
56  L.  Ed.  448  (1912),  as  to  the  extent  to  which  a  defendant  in  a  criminal  <:ase 
is  subject  to  cross-examination.  Probably  a  court  would  not  feel  justitied  in 
punishing:  a  defendant  for  refusal  to  answer  a  proper  question  on  cross- 
examination. 

i»  Section  14G5,  U.  S.  Comp.  St.,  provides  that  the  failure  of  the  accused 
to  testify  shall  not  create  any  presumption  against  him. 


244  WITNESSES  (Ch.  2 

could  he  have  truthfully  denied  or  explained  the  incriminating  evi- 
dence against  him,  he  would  have  done  so." 

This  instruction,  it  is  contended,  was  error  in  that  it  permitted  the 
jury  to  draw  inferences  against  the  accused  from  failure  to  explain 
incriminating  circumstances  when  it  was  within  his  power  to  do  so, 
and  thus  operated  to  his  prejudice  and  virtually  made  him  a  witness 
against  himself,  in  derogation  of  rights  secured  by  the  5th  Amendment 
to  the  Federal  Constitution. 

There  is  a  difiference  of  opinion  expressed  in  the  cases  upon  this 
subject,  the  circuit  court  of  appeals  in  the  eighth  circuit  holding  a 
contrary  view,  as  also  did  the  circuit  court  of  appeals  in  the  first  cir- 
cuit. See  Balliet  v.  United  States,  64  C.  C.  A.  201,  129  Fed.  689; 
Myrick  v.  United  States,  134  C.  C.  A.  619,  219  Fed.  1.  We  think 
the  better  reasoning  supports  the  view  sustained  in  the  court  of  ap- 
peals in  this  case,  which  is  that  where  the  accused  takes  the  stand  in 
his  own  behalf  and  voluntarily  testifies  for  himself  (Act  of  March  16, 
1878,  20  Stat,  at  L.  30,  chap.  37,  Comp.  St.  §  1465),  he  may  not  stop 
short  in  his  testimony  by  omitting  and  failing  to  explain  incriminating 
circumstances  and  events  already  in  evidence,  in  which  he  participated 
and  concerning  which  he  is  fully  informed,  without  subjecting  his  si- 
lence to  the  inferences  to  be  naturally  drawn  from  it. 

The  accused,  of  all  persons,  had  it  within  his  power  to  meet,  by  his 
own  account  of  the  facts,  the  incriminating  testimony  of  the  girls. 
When  he  took  the  witness  stand  in  his  own  behalf  he  voluntarily  re- 
linquished his  privilege  of  silence,  and  ought  not  to  be  heard  to  speak 
alone  of  those  things  deemed  to  be  for  his  interest,  and  be  silent  where 
he  or  his  counsel  regarded  it  for  his  interest  to  remain  so,  without  the 
fair  inference  which  would  naturally  spring  from  his  speaking  only 
of  those  things  which  would  exculpate  him  and  refraining  to  speak 
upon  matters  within  his  knowledge  which  might  incriminate  him.  The 
instruction  to  the  jury  concerning  the  failure  of  the  accused  to' ex- 
plain acts  of  an  incriminating  nature  which  the  evidence  for  the  prose- 
cution tended  to  establish  against  him,  and  the  inference  to  be  drawn 
from  his  silence,  must  be  read  in  connection  with  the  statement  made 
in  this  part  of  the  charge  which  clearly  shows  that  the  court  was  speak- 
ing with  reference  to  the  defendant's  silence  as  to  the  trip  to  Reno 
with  the  girls  named  in  the  indictment,  and  as  to  the  facts,  circum- 
stances, and  intent  with  which  that  trip  was  taken ;  and  the  jury  was 
told  that  it  had  a  right  to  take  into  consideration  that  omission. 

The  court  did  not  put  upon  the  defendant  the  burden  of  explain- 
ing every  inculpatory  fact  shown  or  claimed  to  be  established  by  the 
prosecution.  The  inference  was  to  be  drawn  from  the  failure  of  the 
accused  to  meet  evidence  as  to  these  matters  within  his  own  knowl- 
edge and  as  to  events  in  which  he  was  an  active  participant  and  fully 
able  to  speak  when  he  voluntarily  took  the  stand  in  his  own  behalf. 
We  agree  with  the  circuit  court  of  appeals  that  it  was  the  privilege 
of  the  trial  court  to  call  the  attention  of  the  jury  in  such  manner  as 


Sec.  3)  PRIVILEGE  245 

it  did  to  this  omission  of  the  accused  when  he  took  the  stand  in  his 
own  behalf. 

See,  in  this  connection,  Brown  v.  Walker,  161  U.  S.  591,  597,  40 
L.  Ed.  819,  821,  5  Interst.  Com.  R.  369,  16  Sup.  Ct.  644;  Sawyer 
V.  United  States,  202  U.  S.  150,  165,  50  L.  Ed.  972,  979,  26  Sup.  Ct. 
575,  6  Ann.  Cas.  269;  Powers  v.  United  States,  223  U.  S.  303,  314,  56 
L.  Ed.  448,  452,  32  Sup.  Ct,  281.    ♦    *    ♦ 

Affirmed.  =^» 


THE  KING  V.  EDWARDS. 
(Court  of  King's  Bench,  1791.     4  Dum.  &  E.  440.) 

On  an  application  to  bail  the  prisoner,  who  was  charged  with  grand 
larceny,  one  of  the  bail  was  asked,  whether  he  had  not  stood  in  the 
pillory  for  perjury;  this  question  was  objected  to  as  tending  to  crim- 
inate him,  but 

The  Court  over-ruled  the  objection;  saying  there  was  no  im- 
propriety in  the  question,  as  the  answer  could  not  subject  him  to  any 
punishment:  and  the  bail  admitting  the  fact,  he  was  of  course  re- 
jected. 


GATES  V.  HARDACRE. 

(Court  of  Common  Pleas,  1811.     3  Taunt.  424.) 

This  was  an  action  by  an  endorsee  against  the  drawer  of  a  bill, 
drawn,  payable  to  the  drawer's  order,  upon  Stratton,  and  by  him  ac- 
cepted and  afterwards  dishonoured;  it  was  stated  in  the  declaration 
to  have  been  endorsed  by  the  defendant  to  the  plaintiff.  The  case 
was  tried  before  Heath,  J.,  at  Westminster,  at  the  sittings  after  last 
Hilary  term.  The  plaintiff  proved  his  case.  The  defence  intended  to 
be  set  up  was  usury.  The  first  witness  called  on  the  part  of  the  de- 
fendant was  one  Taylor,  and  the  bill  having  been  put  into  his  hands, 
he  was  asked  by  Shepherd,  Sergt.,  for  the  defendant,  "whether  that 
bill  had  ever  been  in  his  possession  before;"  upon  which  Best,  Sergt., 
interfered,  by  asking  the  witness  whether  he  had  not  been  indicted 
for  usury  in  this  transaction,  and  upon  his  answering  in  the  affirma- 
tive. Best  cautioned  him  against  answering  questions  which  might  tend 
to  criminate  him ;  the  witness  said  that  he  thought  his  answer  to  the 
question  proposed  would  have  a  tendency  to  convict  him  of  the  offence 
of  usury;  the  learned  judge  told  him  that  if  he  thought  so,  he  was  not 
bound  to  answer  the  question:   the  witness  availed  himself  of  this  di- 

2  0  Accord:  People  v.  Trybus,  219  N.  Y.  18,  113  N.  E.  538  (1916),  where  the 
defendant  confined  his  te.stimony  to  the  question  as  to  how  an  alleged  con- 
fession had  been  obtained  from  him. 


246  WITNESSES  CCh.  2 

rection,  and  the  counsel  for  the  defendant  being  thus  prevented  from 
pursuing  his  inquiry,  a  verdict  passed  for  the  plaintiff. 

On  this  day  Shepherd,  Sergt.,  moved  for  a  new  trial,  contending 
that  the  judge's  direction  was  wrong;  that  it  was  not  sufficient  that 
a  witness  thought  that  his  answers  would  tend  to  criminate  him ;  but 
that  it  ought  clearly  to  appear  that  they  would  have  that  effect. 

Mansfield,  C.  J.  Your  questions  go  to  connect  the  witness  with 
the  bill,  and  they  may  be  links  in  a  chain. 

Rule  refused. ^^ 


ZOLLICOFFER  v.  TURNEY. 

(Supreme  Court  of  Tennessee,  1834.     6  Yerg.  297.) 

This  was  an  action  on  the  case  to  recover  the  value  of  a  lot  of  cotton 
shipped  on  board  the  defendant's  boat,  which  was  lost.  The  only 
question  in  this  cause  arises  upon  the  facts  set  forth  in  the  following 
bill  of  exceptions: 

"Be  it  remembered,  that  upon  the  jury  being  sworn  in  this  cause, 
the  plaintiff  introduced  James  S.  Walker  as  a  witness,  and  offered  to 
prove  by  him,  that  the  bill  of  lading  upon  which  this  action  is  founded, 
was  executed  by  Turney  to  him ;  and  that  the  cotton  or  bales  marked 
therein  with  the  letters  "J.  J.  Z."  were  shipped  by  him,  as  the  agent 
of  the  plaintiff,  on  board  of  defendant's  boat.  The  witness  objected 
to  answering  the  question,  and  upon  being  sworn  upon  his  voir  dire, 
stated  he  was  a  partner,  together  with  others,  of  the  defendant,  Tur- 
ney, in  the  freighting  of  said  cotton,  and  that  he  could  not  give  evi- 
dence without  subjecting  himself  to  liability  as  a  partner.-^ 

CaTron,  C.  J.,  delivered  the  opinion  of  the  court. 

The  question  presented  by  the  annexed  bill  of  exceptions,  for  the 
first  time  comes  before  this  court  for  decision.  Can  a  witness  be  heard 
to  object,  that  he  will  be  compelled  to  disclose  facts  going  to  show  he 
was  a  partner  in  the  transaction  which  gave  cause  of  action ;  and 
that  he  is  equally  liable  with  the  defendant  to  the  plaintiff'? 

The  witness  was  called  by  the  plaintiff.  The  defendant  did  not,  and 
could  not  object,  to  his  competency;  but  the  witness,  for  the  reason 
above,  objected  on  his  own  account  to  testifying,  and  was  excused  by 
the  court,  contrary  to  the  wishes  of  the  plaintiff  who  had  called  him. 

Of  necessity  the  question  in  England  has  arisen  generally  in  course 
of  practice  before  the  nisi  prius  courts,  and  been  determined  by  single 
judges.  They  disagreed.  The  writers  on  evidence  have  therefore 
adopted  the  opinions  of  those  most  in  accordance  with  their  own. 
The  consequence  was,  that  until  the  question  arose  before  the  House 
of  Lords  in  1800,  on  Lord  Mellville's  impeachment,  the  rule  of  evi- 

21  See,  also,  Rex  v.  Hodgson,  Russell  &  Ryan,  211  (1812),  post,  p.  .39.'5. 

22  Statement  condensed. 


Sec.  3)  PRIVILEGE  247 

dence  was  unsettled,  and  greatly  perplexed  by  conflicting  opinions  of 
individual  judges. 

Shortly  before,  Mr.  Peake  had  published  his  book  on  evidence, 
holding  that  a  witness  was  not  compellable  to  give  any  answer  which 
might  subject  him  to  a  civil  action,  or  charge  himself  with  a  debt. 
Peake,  184.  He  relies  upon  Title  v.  Grevatt,  2  Lord  Ray.  1008, 
where  Holt  remarked,  "A  man  that  conveys  lands,  may  be  a  witness  to 
prove  he  had  no  title  because  that  is  swearing  against  himself ;  but 
he  is  not  compellable  to  give  such  evidence."  The  remark  seems  to 
have  been  made  during  the  progress  of  a  trial,  whether  called  for,  or 
obiter,  does  not  appear.  The  report  is  a  loose  note  entitled  to  little 
weight. 

Peake  is  a  writer  of  accuracy  and  merit,  and  has  had  much  influence 
on  the  practice  of  this  country. 

The  subsequent  treatises  of  Phillips  and  Starkie  on  Evidence,  refer 
to  the  declaratory  act  of  46  George  HI,  and  afford  no  further  infor- 
mation on  the  subject.     1  Phil,  on  Ev.  225  ;   1  Starkie,  135. 

Nothing  has  been  settled  in  this  State.  In  Cook  v.  Corn,  1  Overt. 
340,  brought  before  the  old  superior  court  in  1808,  something  was  said 
on  the  question,  but  nothing  decided. 

We  are  therefore  compelled  to  resort  to  the  British  authorities 
to  ascertain  the  law.  In  Lord  Mellville's  case,  the  twelve  judges 
were  called  upon  for  their  respective  opinions,  "whether,  accord- 
ing to  law,  a  witness  can  be  required  to  answer  a  question  relevant 
to  the  matter  in  issue,  the  answering  of  which  has  no  tendency  to 
accuse  himself,  but  the  answering  of  which  may  establish  or  tend 
to  establish,  that  he  owes  a  debt  recoverable  by  civil  suit? 

Eight  of  the  judges  reported  the  witness  was  compellable  to  an- 
swer, and  four  declared  he  was  not.  With  the  eight,  Lord  Eldon, 
then  out  of  office,  concurred.  1  Hall's  Law  Journal,  223,  and  Peake's 
Evidence,  188,  Philadelphia  edition  of  1812,  in  note. 

An  act  of  Parliament  was  then  passed,  (46  George  III,)  declara- 
tory of  the  law,  in  affirmance  of  the  opinion  of  the  majority  of  the 
judges.  This  act  can  have  no  influence  on  us,  further  than  it  furnishes 
evidence  of  the  common  law  theretofore  existing. 

The  majority  of  the  English  judges  thought,  and  this  court  thinks, 
no  good  reason  exists  why  the  rules  of  evidence  should  be  different  in 
the  courts  of  law  and  equity.  In  equity  the  witness.  Walker,  could 
not  be  protected,  because  Turney,  the  defendant,  could  be  compelled 
to  give  evidence  for  the  plaintiff,  either  by  answer  or  before  the 
master ;  and  in  this  suit  at  law,  a  bill  could  be  tiled,  and  the  an- 
swer of  Turney  be  had  and  read  as  evidence  on  the  trial.  As  no 
bill  of  discovery  could  be  filed  against  the  co-partner.  Walker,  who 
is  not  sued,  of  course,  he  could  be  compelled  to  testify.  The  prom- 
inent reason  given  by  the  eight  judges  in  Lord  Mellville's  case  is, 


248  WITNESSES  (Ch.  2 

that  clearly  in  equity  the  witness  could  be  compelled  to  answer,  and 
no  rule  existed  why  the  rule  at  law  should  not  be  the  same. 

We  take  the  true  rule  to  be  that  a  witness  cannot,  by  law,  refuse 
to  answer  a  question  relevant  to  the  matter  in  issue,  (the  answering 
of  which  has  no  tendency  to  accuse  himself,  or  to  expose  him  to  pen- 
alty or  forfeiture  of  any  nature  whatsoever,)  by  reason  only,  or  on 
the  sole  ground  that  the  answering  of  such  question  may  establish, 
or  tend  to  establish,. that  he  owes  a  debt,  or  is  otherwise  subject  to  a 
civil  suit,  either  at  the  instance  of  the  plaintiff  in  the  action  then  on 
trial,  or  of  any  other  person. 

The  judgment  will  be  reversed,  and  the  cause  remanded  for  another 
trial. 

Judgment  reversed. 


HENRY  V.  BANK  OF  SALINA. 

(Court  of  Appeals  of  New  York,  1847.     1  N.  Y.  83.) 

On  error  from  the  Supreme  Court.  The  Bank  of  Salina  sued  Hen- 
ry and  Pierce  in  the  court  below  upon  a  promissory  note  signed  by 
Pierce  as  principal  and  Henry  as  surety,  payable  to  the  bank  and  not 
negotiable.  Henry  pleaded  the  general  issue  and  gave  notice  of  the 
defense  of  usury,  verifying  the  notice  according  to  the  usury  act  of 
1837.  On  the  trial  at  the  Circuit  in  April,  1844,  after  the  plaintiffs  had 
rested,  the  defendant's  counsel  opened  the  defense  to  the  jury,  and 
stated,  among  other  things,  that  the  note  was  made  to  be  discounted 
at  the  plaintiffs'  bank,  and  was  in  the  first  instance  presented  by  Pierce 
to  the  bank  for  discount ;  that  the  bank  refused  to  discount  it ;  that 
this  fact  was  known  to  Elisha  Chapman,  who  was  the  teller  of  the 
bank;  that  the  note  was  afterward  presented  to  Chapman,  who,  with 
full  knowledge  that  the  note  had  been  presented  to  the  bank  for  dis- 
count and  refused,  discounted  the  same,  and  in  so  doing  deducted  $10 
from  the  face  of  the  note,  under  a  corrupt  and  usurious  agreement  be- 
tween him  and  Pierce.  The  note  was  payable  in  sixty-three  days  from 
its  date. 

To  prove  this  defense  the  defendant  called  the  said  Chapman  and 
had  him  sworn  as  a  witness,  and  in  the  first  instance  proposed  to  prove 
by  him,  under  the  plea  of  the  general  issue,  that  the  note  was  usurious 
and  void.  Chapman  objected  to  answering  on  the  ground  that  his  tes- 
timony would  form  a  link  in  the  chain  of  evidence  to  convict  him  of  a 
misdemeanor,  or  would  expose  him  to  a  penalty  or  forfeiture.  In 
support  of  the  objection  it  was  insisted  that  when  called  as  a  mere 
witness,  and  not  as  a  party  under  the  usury  act  of  1837,  he  could  not 
be  compelled  to  testify  under  the  provisions  of  that  act.  It  was  also 
insisted  that  he  was  protected  from  answering  under  1  R.  S.  595,  §  28, 
which  declares  that  "no  president,  director,  cashier,  clerk  or  agent,  of 


Sec.  3)  PRIVILEGE  249 

any  corporation  having  banking  powers,  and  no  person  in  any  way  in- 
terested or  concerned  in  the  management  of  any  such  corporation,  shall 
discount  or  directly  or  indirectly  make  any  loan  upon  any  note  which 
he  shall  know  to  have  been  offered  for  discount  to  the  directors,  or 
to  any  officer  of  such  corporation,  and  to  have  been  refused,  and 
that  every  person  violating  the  provisions  of  that  section  shall  for  each 
offense  forfeit  twice  the  amount  of  the  loan  which  he  shall  have  made." 
The  Circuit  judge  sustained  the  objection  of  the  witness,  and  the  de- 
fendant excepted. 

The  defendant  then  offered  to  prove  the  usury  by  the  same  witness 
under  the  notice  of  the  defense  of  usury  served  with  the  plea,  on 
the  ground  that  he  was  the  plaintiff  in  interest.  The  witness  again 
objected  on  the  ground,  first,  that  the  act  of  1837  did  not  require  him 
to  testify,  unless  it  should  first  appear  that  he  was  the  plaintiff  in  in- 
terest and  the  owner  of  the  note,  and  second,  that  he  could  not  answer 
and  show  himself  to  be  the  owner  of  the  note,  without  subjecting  him- 
self to  a  penalty  or  forfeiture  under  the  statute  which  is  above  set 
forth,  or  without  establishing  a  link  in  the  chain  of  evidence  which 
might  subject  him  to  a  penalty  or  forfeiture,  under  that  statute.  Ob- 
jection sustained  and  defendant  excepted. 

The  defendant  then  offered  to  prove  by  the  witness  that  he  was  the 
party  in  interest.  This  was  objected  to  by  the  witness,  and  the  objec- 
tion sustained  on  the  same  grounds,  and  an  exception  taken.  A  verdict 
was  had  for  the  plaintiffs,  and  the  defendant  moved  the  Supreme 
Court  for  a  new  trial  on  a  bill  of  exceptions.  That  motion  was  de- 
nied and  judgment  rendered  for  the  plaintiffs.  See  Bank  of  Salina  v. 
Henry,  2  Denio,  155. 

Bronson,  J.  There  is  another  ground,  besides  those  mentioned  by 
the  Supreme  Court,  on  which  Chapman  was  privileged  from  answering 
the  questions  put  to  him.  It  was  one  branch  of  the  defense  that  the 
witness,  being  the  teller  of  the  bank,  discounted  the  note  after  it  had, 
with  his  knowledge,  been  offered  for  discount  to  the  directors,  and 
been  refused  by  them.  If  this  fact  could  be  established,  Chapman 
would  not  only  forfeit  twice  the  amount  of  the  loan  which  he  made 
(1  R.  S.  595,  §  28),  but  he  would  forfeit  the  debt  itself.  As  the  dis- 
counting of  the  note  was  expressly  forbidden  by  the  statute,  there  can 
be  no  doubt  that  the  security  would  be  void.  |3-  witness  must  speak, 
though  the  answer  may  establish  that  he  owes  a  debt,  or  is  otherwise 
subject  to  a  civil  suit;  but  he  is  not  bound  to  speak  where  the  answer 
may  subject  him  to  a  forfeiture,  or  any  thing  in  the  nature  of  a  for- 
feiture of  his  estate  or  intere^  2  R.  S.  405,  §  71 ;  1  Phil.  Ev.  278 ; 
Mitf .  Plead.  197,  ed.  of  1833 ;  Livingston  v.  Tompkins,  4  Johns.  Ch. 
416,  8  Am.  Dec.  598;  Livingston  v.  Harris,  3  Paige,  533,  and  11  Wend. 
329,  s.  c.  in  error.  As  the  answer  of  the  witness  might  tend  to  estab- 
lish facts  which  would  work  a  forfeiture  of  the  debt,  he  was  not  oblig- 
ed to  testify.    This  ground  is  of  itself  sufficient  to  establish  the  privi- 


250  WITNESSES  (Ch.  2 

lege  of  the  witness;  and  as  to  this,  the  statute  of  limitations  has  no 
application. 

The  grounds  on  which  the  privilege  of  the  witness  was  put  by  the 
Supreme  Court  are  equally  conclusive,  unless  a  prosecution  under  the 
usury  law,  and  a  suit  under  a  bank  law  for  twice  the  amount  of  the 
loan,  had  been  barred  by  the  statute  of  limitations ;  and  there  is  noth- 
ing in  the  case  to  show  that  a  prosecution,  or  a  suit,  or  both  of  them, 
liad  not  been  commenced  in  due  time.  In  all  the  cases  where  it  has 
been  held  that  the  running  of  the  statute  took  away  the  privilege  of 
the  witness,  it  expressly  appeared,  not  only  that  the  time  for  suing  or 
prosecuting  had  elapsed,  but  that  no  suit  or  prosecution  had  been 
commenced,  or  if  one  had  been  commenced,  that  it  had  been  discon- 
tinued. Here  the  statute  was  not  even  mentioned  on  the  trial.  It 
may  not  have  been  necessary  for  the  defendant  to  prove  the  negative 
fact  that  no  suit  or  prosecution  had  been  commenced.  But  if  he  in- 
tended to  rely  on  the  statute,  he  was  at  least  bound  to  say  so ;  and  then 
the  witness  might  have  answered,  that  proceedings  against  him  had 
already  been  commenced. 

The  witness  claimed  his  privilege,  and  there  was  a  prima  facie  case 
.for  allowing  it.  If  there  was  any  answer  to  that  case,  the  defendant 
should  have  mentioned  it,  for  the  double  purpose  of  allowing  the  truth 
of  the  supposed  answer  to  be  examined  at  the  proper  time,  and  of 
dealing  fairly  with  his  adversary  and  the  Circuit  judge.  A  party  is 
not  at  liberty  to  start  a  question,  on  a  motion  for  a  new  trial,  or  in  a 
court  of  review,  which,  had  it  been  mentioned  on  the  trial,  might  have 
received  a  satisfactory  answer.  This  is  a  principle  of  every-day  ap- 
plication, and  there  is  nothing  in  this  case  which  should  induce  a  de- 
parture from  it.-^ 


LOHMAN  V.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1848.     1  N.  Y.  379,  49  Am.  Dec.  340.) 

The  defendant  was  convicted  in  the  court  of  general  sessions  of 
the  city  and  county  of  New  York,  under  the  second  section  of  the  act 
to  prevent  the  procurement  of  abortion,  passed  in  1845,  and  sentenced 
to  imprisonment  in  the  county  jail.  The  judgment  of  the  court  of  ses- 
sions was  affirmed  on  a  writ  of  error,  by  the  supreme  court,  (see  2 
Barb.  216,)  which  last  decision  the  defendant  removed  by  writ  of  er- 
ror into  this  court. 

Upon  the  trial  Maria  Bodine,  the  person  named  in  the  indictment, 
was  called  as  a  witness  by  the  people,  and  testified  that  she  went  to  live 
with  one  Cook  in  the  month  of  July,  1845,  that  she  had  intercourse 
with  him  about  a  month  after,  which  was  continued  to  May,  1846, 
at  which  time  she  discovered  that  she  was  pregnant.  Upon  the  cross- 
es Coiicurriug  opiuiou  of  Wright,  J  J.,  omitted. 


Sec.  3)  rRiviLEGB  251 

examination,  the  counsel  for  the  defendant  proposed  the  following 
questions  to  the  witness,  which  she  declined  to  answer  upon  the  ground 
that  they  would  tend  to  disgrace  her.  "Had  you  any  sexual  inter- 
course with  any  other  person  than  Cook  prior  to  April,  1846?  Had 
you  during  the  fall  of  1845,  or  winter  of  1846,  the  venereal  disease? 
Had  you  any  sexual  intercourse  with  any  other  person  than  Cook 
between  July,  1845,  and  April,  1846?"  The  court  refused  to  compel 
the  witness  to  answer,  and  to  this  decision  the  defendant  excepted.-* 

Gardiner,  J.  *  *  *  As  to  the  questions  proposed  to  Maria  Bo- 
dine.  It  is  hardly  necessary  to  say  that  the  answers  sought  to  these 
questions  would  have  disgraced  the  witness.  She  was,  therefore, 
privileged  from  answering  unless  her  answers  were  material  to  the 
issue.  Her  pregnancy  was,  it  is  true,  one  of  the  facts  to  be  established 
by  the  prosecution,  but  whether  induced  by  Cook  or  any  other  person 
was  entirely  immaterial.  If  her  response  had  been  in  the  afifirmative 
to  each  of  these  interrogatories,  it  would  not  have  been  inconsistent 
with,  or  tended  to  disprove  the  fact  of  her  pregnancy,  or  the  agency  of 
the  prisoner  in  procuring  the  miscarriage,  any  farther  than  those  an- 
swers affected  her  general  character.  The  privilege  of  witnesses  has 
been  carried  much  farther  in  some  of  the  cases,  but  all  the  authorities 
agree  that  where,  as  in  this  case,  the  object  of  the  question  is  to  im- 
pair the  credibility  of  the  witness,  she  could  not  be  compelled  to  an- 
swer. (People  V.  Mather,  4  Wend.  250,  21  Am.  Dec.  122,  and  cases 
cited;  Cowen  &  Hill's  Notes,  No.  521,  and  cases  cited;  1  Burr's 
Trial,  244;    1  Greenl.  §■  454.)    *    *    *      * 


Judgment  affirmed. 


25 


REG.  V.  GARBETT. 
(Court  of  Crown  Cases  Reserved,  1847.     1  Denison,  Cr.  Cas.  236.) 

The  prisoner  was  tried  and  convicted  before  Mr.  Baron  Alderson, 
at  the  Old  Bailey  Sessions,  in  May,  1847,  of  the  crime  of  forging  the 
acceptance  of  William  Booth  to  a  bill  of  exchange. 

In  the  course  of  the  trial  Mr.  Martin  for  the  prosecution  proposed 
to  give  in  evidence  the  examination  of  the  prisoner  on  the  trial  of  the 
civil  action  of  Blagden  v.  Booth,  at  the  last  Kingston  assizes.  The  bill 
stated  in  the  declaration  in  that  suit  was  drawn  by  the  prisoner  upon 
William  Booth,  Priors  Lee,  near  Oakin  Gate,  Salop,  payable  three 
months  after  date  to  the  drawer's  order,  and  purported  to  be  accepted 
as  follows:  "Accepted,  payable  at  Masterman  &  Co.'s,  London,  Wil- 
liam Booth." 

24  Statement  condensed  and  part  of  opinion  omitted. 

2  5  That  the  privilege  does  not  e.vtend  to  matters  relevant  to  the  Issue,  see 
(ennings  v.  Prentice,  39  ftlich.  421  (1S7S). 


252  WITNESSES  (Ch.  2 

The  prisoner  was  called  as  a  witness  for  the  defendant.  His  exam- 
ination in  chief  was  as  follows : 

This  is  my  signature  to  the  bill  as  drawer.  The  bill  is  made  pay- 
able to  my  order.  The  acceptance  was  on  it  when  I  handed  it  to 
Mr.  Phillips  (the  second  indorser). 

Then  the  cross-examination  was  as  follows: 

The  stamp  was  never  out  of  my  possession  till  it  was  handed  to  Mr. 
Phillips. 

Had  you  Mr.  Booth's  authority  to  accept  it? 

I  had  not.^'^     *     *     * 

When  was  the  "William  Booth"  put  upon  it? 

Between  the  Friday  and  the  Sunday. 

What  Friday  and  what  Sunday? 

I  believe  it  was  between  the  last  Friday  and  the  last  Sunday  in  No- 
vember. 

After  the  21st? 

Certainly  after  the  21st. 

After  the  21st  of  November,  1846? 

Certainly. 

Did  you  communicate  with  Mr.  Booth  on  the  subject? 

Not  in  any  way.    *    *    * 

Did  you  know  what  you  came  here  to  prove? 

I  did  not  until  I  came  into  the  box. 

Do  you  know  what  you  are  attempting  to  prove? 

I  do. 

Do  you  mean  to  say  it  is  a  forgery? 

It  is  not  his  handwriting. 

Not  in  his  handwriting.     Who  accepted  it,  then? 

I  am  in  the  hands  of  the  Court. 

Lord  Denman.     It  must  be  answered. 

The  Witness:  I  state,  my  Lord,  fhat  I  filled  the  bill  up  at  Mr. 
Phillips's  request  in  his  own  drawing-room,  and  handed  it  to  him,  and 
have  never  received  a  penny  for  it. 

Mr.  Chambers.     I  ask  you  who  did  that  (pointing  to  the  bill)  ? 

Not  Mr.  Booth. 

Did  Mr.  Phillips? 

No. 

Who  was  present  when  the  bill  was  filled  up  ? 

Mr.  PhilHps  alone. 

Were  there  only  you  two  present? 

Mr.  Phillips  was  not  present  when  "William  Booth"  was  written. 
William  Booth  had  been  written  before  I  filled  it  up  in  Mr.  Phillips' 
drawing-room. 

Who  was  present  when  "WiUiam  Booth"  was  written? 

I  won't  say — only  myself. 

«6  Part  of  case  omitted. 


Sec.  3)  »  FKIVILEGB  253 

Was  any  one  else? 

I  cannot  say. 

I  ask  you  to  tell  me  whether  any  other  person  was  present  when 
"William  Booth"  was  written  besides  yourself? 

I  believe  a  clerk. 

What  clerk? 

That  I  decline  to  say. 

]\'Ir.  Chambers :  My  Lord,  I  press  the  question. 

Lord  Denman  (to  the  witness).     That  other  person  or  you  must 
have  written  it. 

Precisely  so. 

You  knew  that  when  you  uttered  it? 

When  I  handed  it  to  Mr.  Phillips  I  did  know  it  and  Mr.  Phillips 
knew  it  too. 

By  Mr.  Chambers  :  Who  was  the  other  person  ?  I  ask  the  question, 
and  I  submit,  my  Lord,  it  is  a  proper  question. 

Lord  Denman.     It  must  be  answered. 

The  Witness :  I  decline  to  answer  that.     *     *    ♦ 

When  the  signature  "William  Booth"  was  written,  was  it  copied 
from  anything? 

No. 

Are  you  sure  it  was  not? 

That  is  my  belief.     I  strongly  believe  it  was  not.  *    *    * 

Now,  I  insist  on  knowing  the  name  of  the  party  who  did  it  ? 

I  decline  to  answer  the  question. 

You  say  you  know  nothing  at  all  whether  the  party  had  authority  or 
not  ? 

I  believe  he  had  not. 

Were  you  and  he  the  only  persons  in  the  room  ? 

We  were. 

I  ask  again  the  name,  and  require  you  to  give  it  to  me? 

I  decline  to  do  it. 

Lord  Denman.     The  question  must  be  answered. 

I  have  not  said  any  other  person  was  in  the  room  but  myself. 

Lord  Denman.     Then  we  are  to  take  it  you  did  it  yourself. 

I  decline  to  answer  it.     *    *    * 

Mr.  Chambers,  for  the  prisoner,  objected  to  those  parts  of  the  cross- 
examination  being  read,  which  followed  the  prisoner's  declining  to 
answer,  and  applying  to  the  Court  for  protection,  and  the  decision  of 
Lord  Denman  that  he  must  answer  the  questions. 

The  learned  Baron  received  the  evidence,  but  reserved  the  point  for 
further  argument. 

The  prisoner  was  convicted  upon  this  and  other  evidence,  and  the 
learned  Baron  reserved  the  judgment  till  the  opinion  of  the  Judges 
could  be  obtained  whether  the  evidence  was  properly  received. 

On  the  29th  May,  1847,  this  case  was  argued  before  all  the  judges, 
except  Parke,  B.,  Wightman,  J.,  and  Williams,  J. 


254  WITNESSES  (Ch.  2 

Montagu  Chambers,  Q.  C,  for  the  prisoner:  *  *  *  Thirdly. 
Although  a  witness  has  answered  several  questions  in  chief,  and  in 
cross-examination,  if  he  afterwards  objects  and  claims  his  privilege, 
he  ought  to  be  protected.  In  answer  to  this  position,  the  doctrine 
laid  down  by  Dampier,  J.,  Winchester  Summer  assizes,  1815,  1  Starkie's 
Evid.  198,  3d  Ed.,  that  "if  a  witness  voluntarily  answers  questions 
tending  to  criminate  him  on  his  examination  in  chief,  he  is  bound  to 
answer  on  cross-examination,  however  penal  the  consequences  may 
be,"  and  a  like  dictum  by  Best,  C.  J.,  in  Dixon  v.  Vale,  1  C.  &  P.  278, 
may  be  referred  to ;  but  so  general  and  unqualified  a  rule  can  scarcely 
be  correct,  for,  if  true,  it  would  have  been  applicable  in  several  of  the 
cases  already  cited.  Indeed,  it  can  rarely  happen  that  at  the  com- 
mencement of  the  evidence  the  questions  will  be  objectionable;  and 
to  hold  that  the  inadvertent  answers  of  a  witness  to  some  questions 
should  bind  him  to  go  on  to  any  extent,  and  to  declare  himself  guilty 
of  a  crime,  would  be  taking  away  the  protection  altogether,  as  its 
utility  would  then  be  dependent  on  the  skill  of  the  examining  coun- 
sel, and  the  degree  of  prudence,  wariness,  knowledge  and  self-pos- 
session of  the  witness.  It  seems,  therefore,  that  at  any  period  of 
the  examination,  a  witness  may  refuse  to  answer,  and  if  such  refusal 
is  warranted  by  the  rule  before  mentioned,  he  ought  not  to  be  com- 
pelled to  proceed.  Paxton  v.  Douglas,  19  Ves.  225 ;  R.  v.  Slaney, 
5  C.  &  P.  214;  Stevenson  v.  Jones,  Peake,  Ev.  note,  p.  179,  5th 
Ed.     *     *     * 

On  5th  June,  1847,  Willes  was  heard  for  the  Crown.  *  *  * 
Now,  if  this  be  a  privilege,  the  same  rule  is  applicable  to  it  as  to  all 
other  privileges ;  the  party  may  use  it  so  as  to  protect  himself,  but  not 
so  as  to  injure  others.  Hence  Lord  Tenterden  ruled,  that  if  a  witness 
waive  his  privilege  so  far  as  to  answer  part  of  the  questions  tending 
to  criminate  him,  he  cannot  be  exempted  from  answering  the  remain- 
der. East  V.  Chapman,  1  M.  &  M.  48;  2  Phillipp's  Ev.  p.  418.  It 
would  be  monstrous  if  it  were  otherwise ;  for,  in  that  case,  it  would 
amount  to  a  privilege  to  the  witness  to  garble  the  facts ;  but  his  priv- 
ilege is  to  be  silent;  if  not  silent,  he  is  bound  to  speak  the  truth, 
the  whole  truth  and  nothing  but  the  truth.  *  *  *  'fhg  object  of 
the  cross-examination  was  to  see  whether  the  bill  was  accepted  by 
Booth,  or  by  his  authority;  or  to  falsify  the  statement  of  the  wit- 
ness. The  witness  answers  all  the  previous  questions,  knowing  what 
the  issue  is  between  the  parties,  and  what  he  came  to  prove. 

Alderson,  B.  He  never  gave  any  evidence  in  chief ;  he  was  only 
put  in  as  an  act  of  charity;  one  short-hand  writer  said  that  he  only 
took  down  the  cross-examination;  another  said,  that  he  took  down 
all  that  was  said ;  and,  therefore,  it  is  clear  that  no  question  was  put 
in  chief  to  show  that  the  acceptance  was  forged.  It  makes  a  material 
difference  whether  the  criminating  matter  is  first  introduced  on  cross- 
examination,  or  whether  he  had  already  admitted  it  in  his  exam- 
ination in  chief. 


Sec.  3)_  PRIVILEGE  255 

Willes:  Where  a  witness  in  a  matter  directly  in  issue  lias  inadver- 
tently gone  into  part  of  a  transaction,  he  must  ansv^^er  the.  whole  truth ; 
but  it  may  be  otherwise,  when  a  witness  has  done  so  in  a  merely  col- 
lateral matter.     *     *     * 

CoLTMAN,  J.  But  it  was  not  voluntary  on  his  part  answering  any 
of  these  questions ;   he  was  forced  to  begin. 

Willes :   He  might  have  objected  at  the  outset,  and  not  having  done 

so,  he   laid   himself   open  to   cross-examination  on   the   whole   case. 
*     *     * 

M.  Charnbers,  Q.  C,  replied. 

In  reference  to  an  observation,  that  the  statement  of  the  prisoner 
resembled  a  confession  made  under  undue  influence, 

Alderson,  B.,  said:  "Is  not  this  the  true  ground  of  exclusion — 
that  his  liberty  of  refusing  to  say  anything  on  the  subject  has  been 
infringed — rather  than  that  his  evidence  is  not  receivable,  because  it 
is  possibly  not  true?" 

Cur.  adv.  vult. 

Afterwards  the  Judges  met  to  consider  this  case;  most  of  them 
twice.  Nine  of  them,  viz.,  Parke,  B.,  Alderson,  B.,  ColTman,  J., 
Maule,  J.,  RoLFE.  B.,  WiGHTMAN,  ].,  Cresswell,  J.,  Platt,  B.,  and 
Williams,  J.,  were  of  opinion,  that  if  a  witness  claims  the  protection 
of  the  Court,  on  the  ground  that  the  answer  would  tend  to  criminate 
himself,  and  there  appears  reasonable  ground  to  believe  that  it  would 
do  so,  he  is  not  compellable  to  answer;  and  if  obliged  to  answer, 
notwithstanding,  what  he  says  must  be  considered  to  have  been  ob- 
tained by  compulsion,  and  cannot  be  given  in  evidence  against  him. 
They  did  not  decide,  as  the  case  did  not  call  for  it,  whether  the  mere 
declaration  of  the  witness  on  oath,  that  he  believed  that  the  answer 
would  tend  to  criminate  him,  would  or  would  not  be  sufficient  to  pro- 
tect him  from  answering,  where  sufficient  other  circumstances  did 
not  appear  in  the  case  to  induce  the  Judge  to  believe  that  it  would  not. 
The  above  nine  Judges  also  thought,  that  it  made  no  difference  in  tlie 
right  of  the  witness  to  protection,  that  he  had  chosen  to  answer  in 
part;  being  of  opinion  that  he  was  entitled  to  it  at  whatever  stage 
of  the  inquiry  he  chose  to  claim  it,  and  that  no  answer  forced  from 
him  by  the  presiding  Judge  (after  such  a  claim),  could  be  given  in  evi- 
dence against  him;  and  they  did  not  consider  themselves  bound  by 
the  ruling  of  Best,  C.  J.,  in  Dixon  v.  Vale,  1  C.  &  P.  278,  and  of  Lord 
Tenterden  in  East  v.  Chapman,  2  C.  &  P.  573.^^ 

^7  See  People  v.  Forbes,  143  N.  Y.  219,  3S  N.  E.  .303  (1S94),  that  a  witness 
before  the  grand  jury  might  claim  his  privilege  after  stating  that  he  took  no 
part  in  the  matter  under  investigation. 


256  WITNESSES  (Ch.  2 


FOSTER  V.  PIERCE. 

(Supreme   Judicial   Court   of   Slassactiusetts,    1853,    11    Cush.   437,   59    Am. 

Dec.  152.) 

This  was  a  complaint  under  the  bastardy  act,  Rev.  Sts.  c.  49.  At 
the  trial  in  the  court  of  common  pleas,  before  Perkins,  J.,  the  com- 
plainant testified  to  the  facts  set  forth  in  the  complaint,  and  also  that 
she  never  had  sexual  intercourse  with  any  person  other  than  respond- 
ent. The  respondent  introduced  a  witness,  whom  he  asked:  "If  he 
knew  of  the  complainant's  having  sexual  intercourse  during  the  month, 
in  which  the  complaint  stated  the  child  to  have  been  begotten,  with 
other  persons  than  the  respondent?"  To  which  he  replied  that  "he 
did,  and  on  two  occasions  during  that  month."  The  counsel  for  the 
complainant  then  asked  with  whom  such  intercourse  was  had.  This 
the  witness  hesitated  about  answering,  and  the  counsel  for  the  re- 
spondent asked  the  court  to  advise  the  witness  that  he  was  not  bound 
to  answer,  if  the  answer  would  tend  to  criminate  himself.  But  the 
court  declined  so  to  do,  on  the  respondent's  application,  the  witness 
not  having  stated  that  the  answer  would  tend  to  incriminate  himself, 
and  not  having  asked  the  protection  of  the  court.  But  it  became  ap- 
parent to  the  court  from  the  statement  and  the  appearance  of  the  wit- 
ness that  he  did  not  answer,  because  the  answer  might  tend  to  crim- 
inate himself,  and  that  from  the  beginning  of  his  evidence  he  had  ful- 
ly understood  his  right  to  refuse  to  give  testimony  of  that  character, 
and  thereupon  the  court  declined  to  state  to  the  witness  that  he  was  not 
bound  to  criminate  himself,  but  ruled  (the  respondent  objecting)  that 
the  witness  having  given  the  evidence  above  stated  in  chief,  could  not 
now  under  the  circumstances,  refuse  to  answer  the  interrogatory  put 
by  the  complainant;  having  stated  a  part  of  the  transaction,  he  could 
not  now  stop  and  leave  the  complainant  to  suffer  under  the  weight  of 
the  former  answer,  without  giving  her  the  usual  means  of  so  fixing 
and  identifying  the  transaction,  as  to  contradict  or  disprove  it,  if  in  her 
power.  If  the  respondent  would  strike  out  the  former  answer  of  the 
witness,  he  need  not  go  any  further.  But  if  the  respondent  retained 
and  used  it,  the  complainant  had  a  right  to  all  the  information  which 
could  be  given  by  the  witness  in  answer  to  the  question  put.  The 
respondent  then  asked  the  court  to  state  to  the  witness  the  consequenc- 
es of  declining  to  answer,  and  the  court  stated  that  if  the  witness  did 
not  answer,  he  would  be  committed.  The  witness  then  replied  that 
the  intercourse  was  with  himself.  The  jury  found  the  respondent 
guilty,  and  to  the  above  refusal  and  instructions  he  excepted. 

Dewey,  J.  The  general  principle  of  law,  that  a  witness  is  not  bound 
to  criminate  himself,  is  not  controverted.  But  the  question,  is,  at 
what  state  of  the  case  is  he  to  claim  his  privilege?  Can  the  witness 
proceed  to  state  material  facts  bearing  upon  the  case,  and  favorable 
to  one  party,  and  when  cross-examined  by  the  opposite  party  in  ref- 


Sec.  3)  PRIVILEGE  257 

erence  to  the  same  subject,  decline  answering  by  reason  of  his  privi- 
lege not  to  criminate  himself? 

In  the  case  of  Dixon  v.  Vale,  1  Car.  &  P.  278,  it  was  ruled  by  Best, 
C.  J.,  that  if  a  witness,  being  cautioned  that  he  is  not  obliged  to  an- 
swer a  question  which  may  criminate  him,  still  does  answer  such  ques- 
tion, he  cannot  afterwards  take  the  objection  to  any  further  question 
relative  to  the  whole  transaction.  In  East  v.  Chapman,  2  Car.  &  P. 
570,  Abbott,  C.  J.,  says  upon  a  similar  objection  taken  to  answering 
further  questions,  "you  might  have  objected  to  giving  any  evidence, 
but  having  given  a  long  history  of  what  passed,  you  must  go  on,  oth- 
erwise the  jury  will  only  know  half  of  the  matter."  It  is  said  in  1 
Greenl.  Ev.  §  451,  where  the  witness  after  being  advertised  of  his  priv- 
ilege, chooses  to  answer,  he  is  bound  to  answer  every  thing  relating 
to  the  transaction. 

The  latter  proposition  would  fully  embrace  the  present  case,  as  the 
presiding  judge  in  the  bill  of  exceptions  states  that  from  the  begin- 
ning of  his  evidence  the  witness  had  fully  understood  his  privilege,  as 
was  apparent  to  the  court.  This  being  so,  it  was  unnecessary  for  the 
court  further  to  state  the  same  to  him.  With  this  knowledge  of  his 
rights,  having  chosen  to  answer  in  part,  he  must  answer  fully.  In 
the  case  of  Brown  v.  Brown,  5  Mass.  320,  a  libel  for  divorce,  the  coun- 
sel proposed  that  a  witness  should  be  allowed  to  testify  that  he  knew 
the  party  to  have  committed  the  crime  of  adultery,  but  without  naming 
the  person  with  whom  the  adultery  was  committed,  but  the  court  said 
they  should  inquire  of  the  witness  with  whom  it  was  committed. 

It  would  seem  quite  reasonable  to  go  somewhat  further  than  the 
present  case  requires,  and  adopt  the  broad  principle  that  the  witness 
must  claim  his  privilege  in  the  outset,  when  the  testimony  he  is  about 
to  give,  will,  if  he  answers  fully  all  that  appertains  to  it,  expose  him 
to  a  criminal  charge,  and  if  he  does  not,  he  waives  it  altogether.  In 
Chamberlain  v.  Willson,  12  Vt.  491,  36  Am.  Dec.  356,  the  principle  is 
directly  held  that  if  a  witness  submit  himself  to  testify  about  the  very 
matter  tending  to  criminate  himself,  without  claiming  his  privilege, 
he  must  submit  to  a  full  cross-examination.  If  he  states  a  particular 
fact  in  favor  of  the  party  calling  him,  he  will  be  bound  on  his  cross- 
examination  to  state  all  the  circumstances  relating  to  that  fact,  al- 
though in  so  doing  he  may  expose  himself  to  a  criminal  charge.  State 
V.  K ,  4  N.  H.  562. 

We  are  satisfied  that  the  ruling  of  the  presiding  judge  was  correct, 
and  the 

Exceptions  are  overruled.^' 

2  8  And  so  in  Norfolk  v.  Gaylord,  28  Conn.  309  (1859);  Foster  v.  People,  18 
Mich.  266  (1S69). 

HiNT.Ev. — 17 


258 


WITNESSES  (Ch.  2 


PITCHER  V.  PEOPLE. 

(Supreme  Court  of  Michigan,  1SG7.     16  Mich.  142.) 

The  information  in  this  case  charged  Pitcher  with  burglariously  en- 
tering a  certain  dwelling  house,  with  intent  to  steal,  etc.  The  proof 
tended  to  show  that  the  building  entered  was  the  complainant's  barn, 
and  that  the  same  constituted  one  of  the  outbuildings  belonging  to 
the  dwelling,  and  that  Pitcher  stole  certain  wool  therefrom. 

On  the  trial,  one  Newman — the  confederate  of  Pitcher — on  cross- 
examination  testified  to  the  commission  by  him  of  other  offenses,  and 
when  asked  in  regard  to  the  larceny  by  him  of  certain  harness  on  the 
night  of  the  burglary,  he  claimed  his  privilege  on  the  ground  that  his 
answer  would  tend  to  criminate  him,  and  which  was  sustained  by  the 
court. 

Pitcher  was  convicted,  and  sentenced  to  state  prison.^" 

CooivElY,  J.  *  *  *  fi^Q  question  not  disposed  of  is,  whether  the 
court  was  right  in  holding  the  witness  Newman  excused  from  answer- 
ing whose  harness  he  stole  on  the  night  when  the  burglary  in  question 
was  committed. 

Newman  was  the  confederate  of  Reed  in  that  burglary,  and  was  the 
principal  witness  on  whose  testimony  the  plaintiff  in  error  was  con- 
victed. On  the  cross-examination  he  testified  to  the  commission  of 
other  criminal  oft'enses  by  him,  but  when  asked  in  regard  to  the  lar- 
ceny of  the  harness,  he  claimed  his  privilege  on  the  ground  that  his 
answer  would  tend  to  criminate  him,  and  the  court  sustained  the  claim. 
In  this  I  perceive  no  error.  When  an  accomplice  is  thus  placed  upon 
the  stand,  and  testifies  for  the  government,  he  cannot  shield  himself, 
on  cross-examination,  from  making  a  full  disclosure  of  his  connection 
with  the  offense  which  is  being  investigated ;  but  his  admission  of  guilt 
in  that  transaction  does  not  oblige  him  to  disclose  criminality  in  other 
cases.  At  any  stage  in  such  collateral  inquiries  he  is  at  liberty  to  claim 
his  privilege.  No  man  can  be  made  a  witness  to  testify  to  his  own 
crimes  except  by  his  own  consent;  and  consent  to  testify  as  to  one 
transaction  does  not  entitle  either  the  government  or  the  defense  to 
make  the  examination  inquisitorial,  and,  thereby  obtain  evidence  which 
might  be  used  against  him  in  future  prosecutions. 

1  think  there  was  no  error  in  the  judgment,  and  that  it  should  be 
affirmed. 

The  other  justices  concurred.^" 

2  0  statement  condensed  and  part  of  opinion  omitted. 

80  In  Stale  v.  Foster,  2.*?  N.  II.  348,  55  Aan.  Dec.  191  (1851),  where  defendant's 
cleric  testified  that  defendant  did  not  make  the  sale  in  controversy,  it  was 
thought  that  the  witness  was*  hound  to  answer  on  cross-examination  as  to 
other  illegal  sales  made  by  himself. 


Sec.  3)  PRIVILEGE]  259 

SAMUEL  V.  PEOPLE. 

(Supreme  Court  of  Illiuois,  1897.    104  111.  379,  45  N.  E.  728.) 

Magruder,  C.  J.^^  This  was  a  proceeding  under  an  information 
by  the  state's  attorney  against  the  defendant,  filed  in  the  county  court, 
on  the  14th  day  of  December,  1894,  containing  six  counts,  charging 
the  defendant  with  gaming,  keeping  a  gaming  house,  etc.    *    *     * 

On  the  trial  of  the  case,  a  witness  who  testified  was  one  Oscar  King, 
who  had  previously  signed  an  affidavit  upon  the  back  of  the  informa- 
tion to  the  effect  that  the  allegations  therein  contained  were  true. 
There  was  an  ordinance  in  force  in  the  city  of  Clinton  making  it  a 
penal  offense  for  any  person  to  frequent  or  visit  or  be  found  in  any 
room  or  house  or  place  used  for  the  purposes  of  gaming,  or  to  bet  on 
any  such  game  when  played  by  others.  This  witness,  when  placed  up- 
on the  stand,  and  interrogated  by  the  state's  attorney,  claimed  his 
privilege  to  decline  answering  each  and  every  question  propounded  to 
him  by  the  state's  attorney  touching  the  question  of  his  being  in  any 
gaming  house  or  room  or  place  used  for  that  purpose,  or  playing  at 
any  game,  or  giving  a  description  of  the  room  or  place  wherein  any 
such  gaming  occurred,  etc.,  on  the  ground  that  the  answers  which 
the  truth  would  compel  him  to  give  would  tend  to  criminate  himself, 
or  render  him  liable  to  the  penalty  prescribed  by  said  ordinance.  The 
court  refused  to  entertain  his  claim  of  privilege,  and  compelled  him 
to  testify  to  all  that  he  knew  concerning  said  matters,  notwithstand- 
ing his  claim  of  privilege,  upon  the  ground  that,  he  having  voluntarily 
and  at  his  own  request  caused  the  prosecution  to  be  commenced,  his 
privilege  was  waived.    *    *    * 

Two  questions  are  presented  for  our  consideration  by  this  record. 

1.  Where  a  witness  in  a  criminal  prosecution  claims  his  privilege  of 
refusing  to  answer  a  question  upon  the  ground  that  the  answer  will 
criminate  him  or  expose  him  to  a  penal  liability,  is  the  court  justified 
in  disallowing  such  claim,  if  it  appears  that  the  witness  has  previously 
made  an  affidavit,  indorsed  upon  the  back  of  the  information  filed  by 
the  district  attorney,  stating  that  the  matters  and  things  set  out  in  the 
information  are  true?  It  is  contended  in  this  case  that  the  witness 
claiming  the  privilege  caused  the  prosecution  to  be  commenced  by  his 
voluntary  act  of  swearing  to  the  truth  of  the  information,  and  that 
he  thereby  waived  his  right  to  insist  upon  his 'privilege,  when  called 
upon  to  testify  at  the  trial  subsequently  taking  place.  It  is  urged  in 
support  of  this  contention  that  a  man  ought  not  to  be  permitted  to 
set  the  machinery  of  the  law  in  motion,  and  then  afterwards  turn  the 
prosecution  into  naught  by  withholding  his  evidence.  The  privilege 
in  question  is  a  constitutional  right,  of  which  the  citizen  cannot  be 
deprived  by  either  legislatures  or  courts.     Section  10  of  the  bill  of 

31  Part  of  opluioQ  oiuittedL 


260  WITNESSES  (Ch.  2 

rights  says:  "No  person  shall  be  compelled  in  any  criminal  case  to 
give  evidence  against  himself."  1  Starr  &  C.  Ann.  St.  p.  104.  The 
privilege,  which  a  witness  has,  of  refusing  to  give  evidence  which 
will  criminate  himself,  is  granted  to  him  upon  grounds  of  public  pol- 
icy, and  as  one  of  the  safeguards  of  his  personal  liberty.  It  cannot 
be  regarded  as  released  or  waived  by  some  disclosure,^^  which  he  may 
have  made  elsewhere,  and  under  other  circumstances.  If  the  an- 
swer to  a  question  put  to  him  as  a  witness  upon  the  stand  might  tend 
to  criminate  him,  it  would  not  tend  any  the  less  to  do  so  because  he 
had  elsewhere  made  a  statement  having  such  a  tendency.  The  ques- 
tion is  not  as  to  what  he  may  have  previously  said  in  an  affidavit,  but 
the  question  is  whether  the  disclosure  he  is  asked  to  make  as  a  witness 
upon  the  trial  of  the  case  will  have  a  tendency  to  expose  him  to  crim- 
inal charge  or  penalty.  We  are  of  the  opinion  that  his  constitutional 
right  in  this  regard  is  not  abridged  or  waived  by  the  fact  of  making 
the  ex  parte  affidavit  indorsed  upon  the  back  of  the  information  filed 
by  the  prosecuting  attorney.  Minters  v.  People,  139  111.  363,  29  N. 
E.  45;  Lamson  v.  Boyden,  160  111.  613,  43  N.  E.  781.  Reliance  is 
placed  upon  the  doctrine,  announced  in  a  number  of  cases,  that  a 
witness  who  voluntarily  and  understandingly  discloses  part  of  a  trans- 
action exposing  him  to  a  criminal  prosecution,  without  claiming  his 
privilege,  is  ordinarily  obliged  to  go  forward,  and  complete  the  nar- 
rative, by  stating  the  whole  of  the  transaction.  Whart.  Cr.  Ev.  (9th 
Ed.)  §  470;  29  Am.  &  Eng.  Enc.  Law,  p.  844.  This  doctrine,  however, 
can  have  no  application  here,  unless  the  statements  made  in  the  affi- 
davit indorsed  upon  the  information  and  the  statements  made  in  the 
testimony  elicited  upon  the  trial  may  be  regarded  as  parts  of  one  con- 
tinuous account.  We  do  not  think,  however,  that,  under  the  doctrine 
thus  invoked,  the  affidavit  and  the  evidence  on  the  trial  can  be  thus 
run  together,  so  as  to  be  considered  one  statement.  The  doctrine  ap- 
plies only  to  a  case  where  the  witness,  while  testifying  upon  the  trial, 
states  a  fact,  and  afterwards  refuses  to  give  the  details,  or  discloses 
a  part  of  a  transaction  in  which  he  was  criminally  concerned,  with- 
out claiming  his  privilege,  and  then  refuses  to  go  forward,  and  state 
the  whole ;  it  does  not  apply  to  a  case  where  some  admission  made 
long  prior  to  the  trial  is  sought  to  be  brought  forward  and  joined  to 
the  answers  given  on  the  trial.  State  v.  Foster,  23  N.  H.  348,  55 
Am.  Dec.  191 ;  People  v.  Freshour,  55  Cal.  375 ;  Town  of  Norfolk 
V.  Gaylord,  28  Conn.  309.    *    *    * 

2.  The  next  question  which  the  record  presents  is  whether  the 
plaintiff  in  error  can  assign  as  error  that  the  court  below  compelled 
the  witness  to  testify,  notwithstanding  his  claim  of  his  privilege.  It 
will  be  noted  that  the  witness  here  was  not  Wilkin  Samuel,  the  party 

82  It  has  been  held  that  no  waiver  results  from  the  fact  that  the  witness 
had  previously  testified  before  the  srand  jury,  Temple  v.  Com.,  75  Va.  892 
(1881) ;  or  on  a  previous  trial,  Georgia  Railroad  &  Banking  Co.  v.  Lybrend, 
99  Ga.  421,  27  S.  E.  794  (1896). 


Sec.  3)  PRIVILEGE  261 

indicted,  and  the  present  plaintiff  in  error ;  but  it  was  Oscar  King,  a 
third  person,  not  connected  with  the  prosecution,  or  involved  in  it. 
The  witness  King  did  not  persist  in  his  refusal  to  testify  after  the 
court  decided  against  him  upon  the  question  of  his  right  to  claim  his 
privilege,  but,  after  such  decision,  he  proceeded  to  answer  the  ques- 
tions addressed  to  him.  He  might  have  refused  to  answer  notwith- 
standing the  adverse  ruling,  and  might  have  chosen  to  submit  to  pun- 
ishment, as  for  a  contempt.  There  were  such  refusal  and  punishment 
in  the  cases  of  Minters  v.  People,  supra,  and  Temple  v.  Com.,  supra 
[75  Va.  892] .  "The  refusal  of  a  witness  to  answer  any  question  which 
he  may  be  lawfully  required  to  answer  is  a  contempt  of  court,  and, 
if  he  persists  in  his  refusal,  he  may  be  punished  accordingly."  29 
Am.  &  Eng.  Enc.  Law,  p.  846. 

It  is  not  contended  that  the  evidence  given  by  the  witness  King 
was  not  competent  evidence  under  the  issues  involved,  but  it  is  claimed 
that  the  defendant  below  is  entitled  to  complain,  because  King  was 
compelled  to  testify,  although  claiming  his  privilege.  This  is  a  matter 
of  which  the  witness  ^^  alone  can  complain,  and  of  which  the  plaintiff 
in  error  can  take  no  advantage,  as  being  error  committed  against  him- 
self. The  privilege  is  that  of  the  witness,  and  not  of  the  party ;  and 
counsel  will  not  be  allowed  to  make  the  objection.  The  privilege 
cannot  be  interposed  by  either  party  to  the  action,  nor  can  either  party 
raise  the  objection  on  behalf  of  the  witness.  It  must  be  claimed  by  the 
witness  in  order  to  be  available,  and  it  lies  with  him  to  claim  it  or 
not,  as  he  may  choose.  As  the  privilege  is  personal  to  the  witness, 
he  may  waive  it,  and  elect  to  testify.  Mackin  v.  People,  115  111.  312, 
3  N.  E.  222;  Moline  Wagon  Co.  v.  Preston,  35  111.  App.  358;  State 
V.  Foster,  supra;  1  Greenl.  Ev.  §451;  Whart.  Cr.  Ev.  (9th  Ed.)  § 
465 ;  29  Am.  &  Eng.  Enc.  Law,  p.  843.  This  being  so,  the  evidence 
is  equally  good  where  the  witness,  instead  of  giving  it  voluntarily,  is 
compelled  to  give  it.     *     *     * 

Judgment  affirmed.'* 

3  3  Professor  Wigrmore  suggests,  apparently,  that  the  same  rule  ought  to  ap- 
ply where  the  defendant  testifies  as  a  witness.  Wigmore,  sec.  2270,  n.  6.  But 
it  would  seem  to  be  an  extremely  harsh  rule  which  would  force  the  accused 
to  prejudice  his  case  by  persisting  in  a  refusal  to  answer,  thereby  subjecting 
himself  to  punishment  for  contempt,  or  at  least  to  the  most  unfavorable  in- 
ferences. State  V.  Ober,  52  N.  H.  459,  13  Am.  Rep.  88  (1873),  in  order  to  pre- 
serve the  benefit  of  his  privilege. 

See  State  v.  Gardner,  88  Minn.  130,  92  N.  W.  529  (1902),  holding  that,  where 
the  defendant  was  compelled  to  testify  before  the  grand  jury,  the  Indictment 
should  be  quashed. 

3  4  The  omitted  parts  of  the  opinion  contain  extensive  quotations  from  Reg. 
V.  Kinglake,  11  Cox.  Cr.  Cases  499  (1870);  Cloyes  v.  Thaver,  3  Hill  (N.  T.) 
564  (1842);    and  Morgan  v.  Halberstadt,  60  Fed.  592,  9  C.  C.  A,  147  (1894). 


262  WITNESSES  (Ch.  2 


BURDICK  V.  UNITED   STATES. 

(Supreme  Court  of  the  United  States.  1915.     236  U.  S.  79,  35  Sup.  Ct.  267, 

59  L.  Ed.  476.) 

Mr.  Justice  McKknna  delivered  the  opinion  of  the  court. 

Error  to  review  a  judgment  for  contempt  against  Burdick  upon 
presentment  of  the  Federal  grand  jury  for  refusing  to  answer  certain 
questions  put  to  him  in  an  investigation  then  pending  before  the  grand 
jury  into  alleged  custom  frauds  in  violation  of  §§  Z7  and  39  of  the 
Criminal  Code  of  the  United  States  [35  Stat,  at  L.  1096,  chap.  321, 
Comp.  St.  §§  10201,  10203]. 

Burdick  first  appeared  before  the  grand  jury  and  refused  to  answer 
questions  as  to  the  directions  he  gave  and  the  sources  of  his  informa- 
tion concerning  certain  articles  in  the  New  York  Tribune  regarding  the 
frauds  under  investigation.  He  is  the  city  editor  of  that  paper.  He 
declined  to  answer,  claiming  upon  his  oath,  that  his  answers  might 
tend  to  criminate  him.  Thereupon  he  was  remanded  to  appear  at  a 
later  day,  and  upon  so  appearing  he  was  handed  a  pardon  which  he 
was  told  had  been  obtained  for  him  upon  the  strength  of  his  testimony 
before  the  other  grand  jury.  [Burdick  declined  to  accept  the  pardon 
and  again  refused  to  answer  the  questions.  He  was  adjudged  guilty  of 
contempt,  and  committed  to  the  custody  of  the  marshal.] 

May  plaintiff  in  error,  having  the  means  of  immunity  at  hand,  that 
is,  the  pardon  of  the  President,  refuse  to  testify  on  the  ground  that  his 
testimony  may  have  an  incriminating  effect?  A  superficial  consider- 
ation might  dictate  a  negative  answer,  but  the  answer  would  confound 
rights  which  are  distinct  and  independent. 

It  is  to  be  borne  in  mind  that  the  power  of  the  President  under  the 
Constitution  to  grant  pardons  and  the  right  of  a  witness  must  be  kept 
in  accommodation.  Both  have  sanction  in  the  Constitution,  and  it 
should,  therefore,  be  the  anxiety  of  the  law  to  preserve  both, — to  leave 
to  each  its  proper  place.  In  this  as  in  other  conflicts  between  personal 
rights  and  the  powers  of  government,  technical — even  nice — distinc- 
tions are  proper  to  be  regarded.  Granting,  then,  that  the  pardon  was 
legally  issued  and  was  sufficient  for  immunity,  it  was  Burdick's  right 
to  refuse  it,  as  we  have  seen ;  and  it,  therefore,  not  becoming  eft'ective, 
his  right  under  the  Constitution  to  decline  to  testify  remained  to  be  as- 
serted; and  the  reasons  for  his  action  were  personal.  It  is  true  we 
have  said  (Brown  v.  Walker,  161  U.  S.  601,  605,  40  L.  Ed.  822,  824, 
5  Interst.  Com.  R.  369,  16  Sup.  Ct.  644)  that  the  law  regards  only  mere 
penal  consequences,  and  not  "the  personal  disgrace  or  opprobrium  at- 
taching to  the  exposure"  of  crime,  but  certainly  such  consequence  may 
influence  the  assertion  or  relinquishment  of  a  right.  This  considera- 
tion is  not  out  of  place  in  the  case  at  bar.  If  it  be  objected  that  the 
sensitiveness  of  Burdick  was  extreme  because  his  refusal  to  answer 
was  itself  an  implication  of  crime,  we  answer,  not  necessarily  in  fact. 


Sec.  3)  PRIVILEGE  263 

not  at  all  in  theory  of  law.  It  supposed  only  a  possibility  of  a  charge 
of  crime,  and  interposed  protection  against  the  charge,  and,  reaching 
beyond  it,  against  furnishing  what  might  be  urged  or  used  as  evidence 
to  support  it. 

This  brings  us  to  the  differences  between  legislative  immunity  ^^  and  \ 
a  pardon.  They  are  substantial.  The  latter  carries  an  imputation  of 
guilt;  acceptance  a  confession  of  it.  The  former  has  no  such  imputa- 
tion or  confession.  It  is  tantamount  to  the  silence  of  the  witness.  It 
is  noncommittal.  It  is  the  unobtrusive  act  of  the  law  giving  protection 
against  a  sinister  use  of  his  testimony,  not  like  a  pardon,  requiring  him 
to  confess  his  guilt  in  order  to  avoid  a  conviction  of  it. 

It  is  of  little  service  to  assert  or  deny  an  analogy  between  amnesty 
and  pardon.  A^Tr.  Justice  Field,  in  Knote  v.  United  States,  95  U.  S. 
149,  153,  24  L.  Ed.  44-2,  443,  said  that  "the  distinction  between  them 
is  one  rather  of  philological  interest  than  of  legal  importance."  This 
is  so  as  to  their  ultimate  effect,  but  there  are  incidental  differences  of 
importance.  They  are  of  dift'erent  character  and  have  different  purpos- 
es. The  one  overlooks  offense;  the  other  remits  punishment.  The 
first  is  usually  addressed  to  crimes  against  the  sovereignty  of  the 
state,  to  political  offenses,  forgivenpss  being  deemed  more  expedient 
for  the  public  welfare  than  prosecution  and  punishment.  The  second 
condones  infractions  of  the  peace  of  the  state.  Amnesty  is  usually 
general,  addressed  to  classes  or  even  communities, — a  legislative  act, 
or  under  legislation,  constitutional  or  statutory, — the  act  of  the  su- 
preme magistrate.  There  may  or  may  not  be  distinct  acts  of  accept- 
ance. If  other  rights  are  dependent  upon  it  and  are  asserted,  there  is 
affirmative  evidence  of  acceptance.  Examples  are  afforded  in  United 
States  V.  Klein,  13  Wall.  128,  20  L.  Ed.  519;  Armstrong's  Foundry,  6 
Wall.  766,  18  L.  Ed.  882;  Carlisle  v.  United  States,  16  Wall.  147,  21 
L.  Ed.  426.    See  also  Knote  v.  United  States,  supra.    If  there  be  no 

3  5  The  common-law  privilege  may,   of  course,  be  taken  away  by  statute 
except  where  embodied  in  the  Constitution. 

Statutes  were  passed  in  several  of  the  states  requiring  the  witness  to  tes- 
tify, but  providing  that  his  testimony  should  not  be  used  against  him.  A 
similar  federal  statute  was  held  invalid  in  Counselman  v.  Hitchcock  142  U 
S.  547,  12  Sup.  Ct.  105,  35  L.  Ed.  1110  (1S02),  on  the  ground  tliat  Congress  could 
not  take  away  the  constitutional  protection  without  giving  immunity  from 
prosecution.  The  act  was  accordingly  amended  and  its  validity  as  an  immu- 
nity statute  sustained  in  Brown  v.  Walker,  161  U.  S.  591,  16  Sup.  Ct.  644,  40 
L.  Ed.  819  (1S96).  In  this  case  it  was  also  held  that  the  act  was  not  objection- 
able because  it  might  not  furnish  protection  against  state  prosecution.  In 
Jack  v.  Kansas,  199  U.  S.  372,  26  Sup.  Ct.  73.  50  U  Ed.  234.  4  Ann.  Cas.  6S9 
(lOOo),  a  similar  state  statute  was  upheld,  though  it  clearly  could  not  pro- 
tect against  federal  prosecution. 

In  Heike  v.  United  States,  227  U.  S.  131,  33  Sup.  Ct  226,  57  L.  Ed.  450 
Ann.  Cas.  1914C,  128  (1913),  it  was  held  that  the  federal  act  applied  to  the 
offense  under  investigation  and  did  not  bar  a  prosecution  for  some  other 
offense  incidentally  disclosed.  As  to  such  matters  it  would  seem  that  the 
privilege  has  not  been  taken  away. 

It  seems  that  the  privilege  is  taken  away  when  a  prosecution  Is  barred  by 
the  statute  of  limitations.     Brown  v.  Walker,  101  XJ.  S.  591.  10  Sup.  Ct.  044 
40  L.  Ed.  819  (1890). 


264  WITNESSES  (Ch.  2 

other  rights,  its  only  purpose  is  to  stay  the  movement  of  the  law.  Its 
function  is  exercised  when  it  overlooks  the  offense  and  the  offender, 
leaving  both  in  oblivion. 

Judgment  reversed,  with  directions  to  dismiss  the  proceedings  in 
contempt,  and  discharge  Burdick  from  custody. 

Mr.  Justice  McReynolds  took  no  part  in  the  consideration  and  de- 
cision of  this  case. 


FISHER  v.  RONALDS. 

(Court  of  Common  Pleas,  1852.     12  C.  B.  762.) 

Assumpsit  on  a  bill  of  exchange  for  i245.  drawn  by  one  Chappell 
upon  and  excepted  by  the  defendant,  and  endorsed  by  Chappell  to  the 
plaintiff. 

Plea,  amongst  others,  that  the  bill  declared  upon  was  accepted  by 
the  defendant  for  the  purpose  of  securing  to  Chappell,  the  drawer,  a 
sum  of  money  won  by  him  of  the  defendant  by  gaming,  contrary  to 
the  statute;  and  that  the  bill  was  endorsed  to  the  plaintiff  with  full 
knowledge  of  the  circumstances  under  which  it  was  given. 

The  cause  was  tried  before  Cresswell,  J.,  at  the  second  sitting  in 
London  in  this  term. 

It  appeared  that  the  defendant  was  an  officer  of  the  77th  regiment, 
stationed  at  Plymouth;  that,  during  the  Plymouth  races,  in  August, 
1851,  certain  persons  calling  themselves  "The  Bath  and  Bristol  Club," 
of  whom  Chappell  was  one,  went  down  to  Plymouth;  that  a  room 
was  hired  for  them  there  at  the  house  of  one  John  Hix,  a  livery- 
stable  keeper,  where  roulette  was  played,  and  Ronalds,  the  defend- 
ant, was  a  considerable  loser.  The  defence  attempted  to  be  set  up,  was, 
that  the  bill  in  question  was  given  by  the  defendant  for  part  of  the 
money  so  lost  by  him  to  Chappell. 

To  prove  this,  Hix  was  called.  He  said  he  knew  a  set  of  persons 
called  "The  Bath  and  Bristol  Club;"  that,  in  August,  1851,  he  was 
applied  to  by  some  officers  of  the  77th,  to  let  them  a  room ;  that  some 
of  the  members  of  the  club,  among  whom  was  Chappell,  came  there; 
that  he  was  in  the  room  on  the  night  the  money  was  alleged  to  have 
been  lost  by  the  defendant ;  that  he  saw  tlie  defendant  there ;  but  that 
he  saw  no  gaming.  He  was  then  asked,  "Was  there  a'  roulette-table 
in  the  room?"  Byles,  Serjt.,  for  the  plaintiff',  interposed,  and  asked 
the  learned  judge  to  caution  the  witness,  that  his  answer  to  that  ques- 
tion might  tend  to  subject  him  to  a  criminal  charge  under  the  8  &  9 
Vict.  c.  109,  ss.  1,  2.  The  learned  judge,  after  looking  at  the  statute, 
told  the  witness  that  he  was  not  bound  to  answer  the  question,  inasmuch 
as  his  answer  might  have  a  tendency  to  involve  him  in  the  danger  of 
being  indicted  as  the  keeper  of  a  common  gambling-house,  or  as  a  con- 
spirator to  defraud. 


Sec.  3)  PRIVILEGE  2G5 

The  witness  accordingly  declined  to  answer  the  question :  and  a  ver- 
dict was  found  for  the  plaintiff,  for  the  amount  claimed. 

ATontagu  Chambers  (with  whom  was  Collier)  now  moved  for  a  new 
trial. 

jERVis,  C.  J.  I  am  of  opinion  that  my  Brother  Cresswell  was  quite 
right  in  declining  to  compel  the  witness  to  answer  the  question.  The 
tendency  of  the  question  was  plain:  and  the  learned  judge  saw  that 
the  witness  really  believed  that  his  answer  to  it  might  tend  to  crim- 
inate him.  In  Phillipps  on  Evidence,  10th  edit.  Vol.  II.,  p.  487,  it  is 
said  that  a  witness  is  privileged  from  answering  not  only  what  will 
criminate  him  directly,  but  also  whatever  has  any  tendency  to  crim- 
inate him:  and  the  reason  given  for  this  decisively  disposes  of  this 
case, — "because,  otherwise,  question  might  be  put  after  question,  and, 
though  no  single  question  may  be  asked  which  directly  criminates,  yet 
enough  might  be  got  from  him  by  successive  questions,  whereon  to 
found  against  him  a  criminal  charge."  We  must,  therefore,  allow 
the  witness  to  judge  for  himself,  or  he  would  be  made  to  criminate 
himself  entirely.  There  is,  no  doubt,  at  times  great  difficulty  in  apply- 
ing the  rule;   but  it  is  impossible  to  help  that. 

MaulE,  J.  I  am  of  the  same  opinion.  We  need  not  decide  upon 
the  present  occasion,  that  the  statement  of  the  witness  is  conclusive, 
though  I  think  the  judge  is  bound  by  the  witness's  oath;  otherwise, 
you  might  exhaust  all  possibilities  consistent  with  a  man's  innocence, 
and  so  convict  him  even  of  murder.  The  question  here  put  is  just  one 
of  the  questions  which  would  necessarily  have  been  asked  on  an  in- 
dictment against  the  witness  for  keeping  a  gambling-house.  I  think  it 
is  impossible  to  put  a  case  of  the  more  proper  application  of  the  rule 
which  protects  a  witness  from  criminating  himself. 

Williams,  J.  I  am  of  the  same  opinion.  It  is  unnecessary  to  de- 
termine whether  the  witness's  statement  that  his  answer  may  tend  to 
criminate  him,  is  conclusive  or  not.  I  think  it  was  abundantly  clear 
that  his  answer  in  this  case  must  have  a  direct  tendency  to  place  the 
witness  in  danger. 

Talfourd,  J.,  concurred. 

Rule  refused. ^"^ 

3c  During  the  course  of  the  argument  counsel  urged  that  the  court  should 
exercise  its  discretion  as  to  whether  the  claim  of  privilege  was  well  founded: 
"At  all  events  the  judge  is  to  e.xercise  his  discretion  as  to  whether  or  not 
the  claim  of  privilege  is  well  founded.  (Maule,  J.  No;  it  is  the  witness  who 
i.s  to  exercise  his  discretion,  not  the  judge.  The  witness  might  be  asked. 
'Were  you  in  London  on  such  a  day?'  and.  though  apparently  a  very  simple 
question,  he  might  have  good  reason  to  object  to  answer  it,  knowing  that, 
if  he  admitted  that  he  was  in  London  on  that  day,  his  admission  might  com- 
plete a  chain  of  evidence  against  him  which  would  lead  to  his  conviction.  It 
is  impossible  that  the  judge  can  know  anything  about  that.  The  privilege 
would  be  worthless,  if  the  witness  were  required  to  point  out  how  his  answer 
would  tend  to  criminate  him.)" 

In  Adams  v.  Lloyd,  3  H.  &  N.  351  (1858),  Pollock.  B.,  after  quoting  the  above 
passage  with  approval,  added:    "It  is  impossible  to  satisfy  the  judge  without 


266  WITNESSES  (Ch.  2 

Ex  parte  GAUSS. 

(Supreme  Court  of  Missouri,  1909.     223  Mo.  277,  122  S.  W.  741,  135  Am.  St. 

Rep.  517.) 

Gantt,  p.  J.  The  petitioner  by  this  proceeding  seeks  to  be  dis- 
charged from  imprisonment  and  the  custody  of  the  jailer  of  the  city 
of  St.  Louis.  It  appears  from  the  record  that  the  petitioner  was  com- 
mitted for  contempt  by  the  circuit  court  of  the  city  of  St.  Louis  for 
refusing  to  answer  certain  questions  propounded  to  him  by  the  grand 
jury  of  said  city  on  the  27th  day  of  September,  1909.  It  appears 
that  in  August,  1909,  petitioner  was  arrested  for  making  a  wager  on 
a  horse  race,  and  on  September  30,  1909,  he  was  summoned  before  the 
grand  jury  of  the  City  of  St.  Louis,  and  was  asked  the  following 
questions :  "I  want  to  ask  you  again,  Air.  Gauss,  on  the  day  that  you 
were  arrested,  which  was  some  time  in  August,  this  year,  had  you, 
just  prior  to  your  arrest,  made  or  placed  a  bet  with  Steve  Pensa,  at 
his  place  of  business  on  Washington  avenue,  upon  the  result  of  a 
horse  race?  Q.  Did  you  ever  give  Steve  Pensa,  or  any  other  person 
in  his  place  of  business,  any  money  to  be  placed  upon  a  horse  race  to 

exposing  the  whole  matter;  and  a  man  may  be  placed  under  such  circum- 
stances with  respect  to  the  commission  of  a  crime,  that  if  he  disclosed  them  he 
might  be  fixed  upon  by  his  hearers  as  a  guilty  person ;  so  tliat  the  rule  is  not 
always  the  shield  of  the  guilt5%  it  is  sometimes  the  protection  of  the  innocent, 
although  very  likely  it  was  originally  introduced  from  humane  motives, 
being  probabiy  derived  from  the  maxim  'nemo  teuetur  seipsum  accusare.' " 

In  Pweg.  V.  Boyes,  1  B.  &  S.  311  (1861),  where  the  point  involved  was  wheth- 
er a  witness  was  privileged  from  answering  an  incriminating  question,  after 
having  accepted  a  pardon  which  would  not  protect  him  from  impeacliment 
by  the  House  of  Commons,  Cockburn,  C.  J.,  said:  "It  was  also  contended  that 
a  bare  possibility  of  legal  peril  was  sufficient  to  entitle  a  witness  to  protec- 
tion: nay,  further,  that  the  witness  was  the  sole  judge  as  to  whether  his  evi- 
dence would  bring  him  into  danger  of  the  law:  and  that  the  statement  of 
his  belief  to  that  effect,  if  not  manifestly  made  mala  fide,  should  be  received 
as  conclusive.  With  the  latter  of  these  propositions  we  are  altogether  unable 
to  concur.  Upon  a  review  of  the  authorities,  we  are  clearly  of  the  opinion 
that  the  view  of  the  law  propounded  by  Lord  Wensleydale,  in  Osborn  v.  The 
London  Dock  Company  [10  Exch.  698  (1855)],  and  acted  upon  by  V.  C.  Stuart, 
in  Sidebottom  v  Adkins  13  Jur.  (N.  S.)  631  (1857)],  is  the  correct  one;  and  that, 
to  entitle  a  party  called  as-  a  witness  to  the  privilege  of  silence,  the  Court 
must  see.  from  the  circumstances  of  the  case  and  the  nature  of  the  evidence 
which  the  witness  is  called  to  give,  that  there  is  reasonable  ground  to  appre- 
hend danger  to  the  witness  from  his  being  compelled  to  answer.  "We  indeed 
quite  agree  that,  if  the  fact  of  the  witness  being  in  danger  be  once  made  to 
appear,  great  latitude  should  be  allowed  to  him  in  judging  for  himself  of  the 
effect  of  any  particular  question:  there  being  no  doubt,  as  observed  by  Alder- 
son,  B.,  in  Osborn  v  The  London  Dock  Company,  that  a  question  which  might 
appear  at  first  sight  a  very  innocent  one,  might,  by  affording  a  link  in  a  chain 
of  evidence,  become  the  means  of  bringing  home  an  offence  to  the  party  an- 
swering It  Subject  to  this  reservation,  a  judge  is  in  our  opinion,  bound  to  in- 
sist on  a  witness  answering  unless  he  is  satisfied  that  tlie  answer  will  tend  to 
place  the  witness  in  peril." 

In  Ex  parte  Reynolds,  15  Cox,  Crim.  Cas.  108  (1882),  the  Court  of  Appeals  in 
dealing  with  a  claim  of  privilege  evidently  made  in  bad  faith,  approved  the 
rule  as  stated  in  Reg.  v.  Boyes. 


Sec.  3)  PRIVILEGE  267 

be  run  at  any  place  within  the  state  of  Missouri,  or  without  the  state? 
Q.  Have  you,  at  any  time  within  the  last  three  years,  made  Steve 
Pensa  the  custodian  of  any  bet  upon  the  result  of  a  horse  race?" 
The  petitioner  refused  to  answer  these  questions  because  by  so  doing 
he  might  incriminate  himself.  Whereupon  his  refusal  was  reported 
to  the  judge  of  division  No.  10  of  the  circuit  court  of  the  city  of  St. 
Louis,  who  ordered  him  to  answer  said  questions,  and  upon  his  refusal 
to  do  so  committed  him  to  the  jail  of  the  city  of  St.  Louis  until  such 
time  as  he  would  answer  said  questions. 

The  petitioner  insists  that  he  is  entitled  to  be  discharged  from  said 
imprisonment,  because  the  effect  of  the  said  judgment  and  order  was 
to  violate  section  23  of  article  2  of  the  Constitution  of  this  state  (Ann. 
St.  1906,  p.  158),  which  provides  "that  no  person  shall  be  compelled  to 
testify  against  himself  in  a  criminal  cause,"  and  because  said  commit- 
ment is  in  violation  of  that  part  of  the  fifth  amendment  of  the  Con- 
stitution of  the  United  States,  which  says :  "Nor  shall  any  person 
be  compelled  in  any  criminal  case  to  be  a  witness  against  himself." 
In  State  v.  Young,  119  Mo.  495,  loc.  cit.  520,  24  S.  W.  1038,  1045, 
it  was  said  by  this  court :  "The  Constitution  means  more  than  the 
protection  of  the  accused  on  his  final  trial  when  his  rights  are  scrupu- 
lously guarded  by  the  courts.  It  as  clearly  protects  him  from  being 
forced  to  testify  against  himself  in  any  and  all  preliminary  investiga- 
tion, whether  before  the  coroner,  grand  jury,  or  the  justice  on  his 
preliminary  examination.  The  immunity  afforded  him  by  the  Consti- 
tution is  broad  enough  to  protect  him  against  self-incrimination  before 
any  tribunal  in  any  proceeding."  Counselman  v.  Hitchcock,  142  U.  S. 
547,  12  Sup.  Ct.  195,  35  L.  Ed.  1110;  Cullen  v.  Commonwealth,  24 
Grat.  (Va.)  624;  State  ex  rel.  v.  Hardware  Co.,  109  Mo.  118,  18  S. 
W.  1125,  15  L.  R.  A.  676. 

Learned  counsel  for  the  state  insists,  however,  that  it  is  the  province 
of  the  court  to  judge  whether  any  direct  answer  to  the  question  that 
may  be  proposed  will  furnish  evidence  against  the  witness.  If  such 
answer  may  disclose  a  fact  which  forms  the  necessary  and  essential 
link  in  the  chain  of  testimony,  which  would  be  sufificient  to  convict 
him  of  any  crime,  he  is  not  bound  to  answer  it,  so  as  to  furnish  matter 
for  that  conviction ;  but  if  the  question  propounded  does  not  disclose 
upon  its  face  that  it  will  have  such  tendency,  and  the  witness  fails  to 
clearly  show  to  the  court  how  it  will  have  such  effect,  he  may  be  pun- 
ished for  contempt  after  he  refuses  to  answer  after  being  directed 
to  do  so  by  the  court;  and  their  contention  is  that  the  petitioner  was 
not  entitled  to  invoke  the  protection  of  the  Constitution  against  an- 
swering these  questions  for  the  reason,  as  they  say,  that  it  is  not,  under 
this  act  of  1907  (page  223)  against  book  making,  and  pool  selling,  nor 
any  other  law,  made  a  crime  for  a  person  to  make  or  place  a  bet  on 
a  horse  race,  or  to  make  any  other  person  the  custodian  of  a  bet  upon 
the  result  of  a  horse  race.  This  court,  in  Ex  parte  Arnot  Carter, 
166  Mo.,  loc.  cit.  614,  66  S.  W.  544,  57  L.  R.  A.  654,  said:    "It  is 


268  WITNESSES  (Ch.  2 

reasonable  construction  of  the  constitutional  provision  that  the  wit- 
ness is  protected  from  being  compelled  to  disclose  the  circumstances  of 
his  offense,  or  the  sources  from  which  evidence  of  its  commission,  or 
of  its  connection  with  it,  may  be  obtained,  or  make  effectual  for  his 
conviction,  without  using  his  answers  as  direct  admissions  against 
him." 

Chief  Justice  Marshall,  when  engaged  in  the  trial  of  Aaron  Burr 
(1  Burr's  Trial,  244,  25  Fed.  Cas.  40,  No.  14,692e),  said:  "If  the 
question  be  of  such  description  that  an  answer  to  it  may  or  may  not 
criminate  the  witness,  according  to  the  purport  of  that  answer,  it  must 
rest  with  himself,  who  alone  can  tell  what  it  would  be,  to  answer  the 
question  or  not.  If,  in  such  a  case,  he  say,  upon  his  oath,  that  his 
answer  would  incriminate  himself,  the  court  can  demand  no  other  tes- 
timony of  the  fact.  *  *  *  According  to  their  statement  (the  coun- 
sel for  the  United  States),  a  witness  can  never  refuse  to  answer  any 
question,  unless  that  answer,  unconnected  v/ith  other  testimony,  would 
be  sufficient  to  convict  him  of  crime.  This  would  be  rendering  the  rule 
almost  perfectly  worthless.  Many  links  frequently  compose  that  chain 
of  testimony  which  is  necessary  to  convict  any  individual  of  a  crime. 
It  appears  to  the  court  to  be  the  true  sense  of  the  rule  that  no  witness 
is  compellable  to  furnish  any  one  of  them  against  himself.  It  is  cer- 
tainly not  only  a  possible,  but  a  probable,  case  that  a  witness,  by  dis- 
closing a  certain  fact,  may  complete  the  testimony  against  himself,  and 
to  every  effectual  purpose  accuse  himself  as  entirely  as  he  would  by 
stating  every  circumstance  which  would  be  required  for  his  conviction. 
That  fact  of  itself  might  be  unavailing;  but  all  other  facts  without  it 
would  be  insufficient.  While  that  remains  concealed  within  his  own 
bosom,  he  is  safe;  but  draw  it  from  thence,  and  he  is  exposed  to  a 
prosecution.  The  rule  which  declares  that  no  man  is  compellable  to 
accuse  himself  would  most  obviously  be  infringed,  by  compelling  a 
Vv^itness  to  disclose  a  fact  of  this  description.  What  testimony  may  be 
possessed,  or  is  attainable,  against  any  individual,  the  court  can  never 
know.  It  would  seem,  then,  that  the  court  ought  never  to  compel  a 
witness  to  give  an  answer,  which  would  disclose  a  fact  that  would 
form  a  necessary  and  essential  part  of  a  crime,  which  is  punishable 
by  the  laws." 

Learned  counsel  for  the  state  seem  to  conclude  that  the  only  possible 
prosecution  that  could  grow  out  of  an  affirmative  answer  to  the  ques- 
tions propounded  to  the  petitioner  in  this  case  by  the  grand  jury  would 
be  one  for  betting  on  a  horse  race;  but  the  witness  did  not  limit  his 
reason  to  any  particular  offense,  but  stated  that  to  answer  the  question 
would  incriminate  him.  For  aught  that  the  court  knew,  the  state  may 
have  been  in  possession  of  sufficient  other  evidence  to  have  convicted 
the  petitioner  of  some  other  crime  if  only  it  could  fix  upon  him  that  he 
was  present  at  Pensa's  place  at  a  given  time,  and  then  and  there 
placed  a  bet  with  Pensa  upon  the  result  of  a  horse  race,  or  gave  Pensa 
money  at  that  time  to  be  placed  upon  a  horse  race.    The  meaning  of  this 


Sec.  3)  PRIVILEGE  2G9 

constitutional  provision  has  time  and  again  been  held  not  to  be  mere- 
ly a  provision  that  a  person  shall  not  be  compelled  to  testify  in  a  then 
existing  case  against  himself,  but  that  he  shall  not  be  compelled,  when 
acting  as  a  witness  in  any  investigation,  to  give  testimony  which  may 
tend  to  show  that  he  himself  has  committed  a  crime ;  and  this  court 
has  approved  a  doctrine,  announced  by  Chief  Justice  Marshall,  that,  if 
the  question  be  of  such  description  that  an  answer  to  it  may  or  may 
not  incriminate  the  witness,  it  must  rest  with  himself,  who  alone  can 
tell  what  it  would  be  to  answer  the  question  or  not.  And  if,  in  such 
case,  he  say  upon  his  oath  that  his  answer  would  incriminate  himself, 
the  court  can  demand  no  other  testimony  of  the  fact. 

This  rule,  we  think,  is  entirely  consistent  with  the  doctrine  gen- 
erally held  that  where  the  court  can  say,  as  a  matter  of  law,  that  it  is 
impossible  that  a  witness  would  incriminate  himself  by  answering  a 
question  one  way  or  the  other,  then  the  court  can  require  an  answer; 
but  we  think  the  question  propounded  in  this  case  is  not  such  a  ques- 
tion, but  one  which  the  witness  had  the  right  to  decline  to  answer,  if, 
in  his  opinion,  it  would  incriminate  him.  To  hold  that  he  must  have 
explained  all  of  the  other  testimony  in  the  case,  which  would  be  sufB- 
cient  to  convict  him,  by  an  answer  to  this  question,  would  render  the 
rule  entirely  worthless. 

The  language  of  the  court  in  People  v.  Mather,  4  Wend.  (N.  Y.) 
252,  21  Am.  Dec.  122,  is,  we  think,  very  persuasive.  Said  the  court : 
"When  the  disclosures  he  may  make  can  be  used  against  him  to 
prosecute  him  for  a  criminal  offense  or  to  charge  him  with  penalties  or 
forfeitures,  he  may  stop  answering  before  he  arrives  at  the  question, 
the  answer  of  which  may  show  practically  his  moral  turpitude.  The 
witness  knows  what  the  court  does  not  know,  and  what  he  cannot  com- 
municate without  being  a  self-accuser,  and  is  the  judge  of  the  effect 
of  his  answer,  and  if  it  proves  a  link  in  the  chain  of  testimony,  which 
is  sufficient  to  convict  him,  he  is  protected  by  law  from  answering  the 
question.  If  there  be  a  series  of  questions,  the  answer  to  all  of  which 
would  establish  his  criminality,  the  party  cannot  pick  out  a  particular 
one,  and  say,  if  that  be  put,  the  answer  will  not  criminate  him.  If 
it  is  one  step  having  a  tendency  to  criminate  him,  he  is  not  compelled  to 
answer." 

In  State  ex  rel.  v.  Simmons  Hardware  Co.,  109  Mo.  118,  IS  S.  W. 
1125,  15  L.  R.  A.  676,  Judge  Barclay,  speaking  for  this  court,  said: 
"It  is  a  reasonable  construction  of  the  constitutional  provision  that  the 
witness  is  protected  from  being  compelled  to  disclose  the  circum- 
stances of  his  offense,  the  source  from  which,  or  the  means  by  which, 
evidence  of  its  commission  or  of  his  connection  with  it  may  be  obtained 
or  made  effectual  for  his  conviction  without  using  his  answers  as  di- 
rect testimony  against  him." 

In  our  opinion,  the  petitioner  having  testified  that  he  could  not  an- 
swer the  questions  without  criminating  himself,  and  it  not  being 
entirely  plain  that  his  answers  might  not  lead  to  a  prosecution  of  him- 


270  WITNESSES  CCh.  2 

self,  we  think  the  circuit  court  erred  in  committing  him  for  contempt 
in  refusing  to  answer,  and  he  is  therefore  entitled  to  be  discharged 
from  his  imprisonment,  and  it  is  so  ordered. 
Burgess  and  Fox,  JJ.,  concur." 


MASON  et  al.  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1917.     244  U.  S.  362,  37  Sup.  Ct.  621, 

61  L.  Ed.  119S.) 

Mr.  Justice  McReynolds  delivered  the  opinion  of  the  court. 

Plaintiffs  in  error  were  separately  called  to  testify  before  a  grand 
jury  at  Nome,  Alaska,  engaged  in  investigating  a  charge  of  gambling 
against  six  other  men.  Both  were  duly  sworn.  After  stating  that  he 
was  sitting  at  a  table  in  the  Arctic  Billiard  Parlors  when  these  men 
were  there  arrested,  Mason  refused  to  answer  two  questions,  claim- 
ing so  to  do  might  tend  to  incriminate  him.  (1)  "Was  there  a  game 
of  cards  being  played  on  this  particular  evening  at  the  table  at  which 
you  were  sitting?"  (2)  "Was  there  a  game  of  cards  being  played  at 
another  table  at  this  time?"  Plaving  said  that  at  the  specified  time 
and  place  he,  also,  was  sitting  at  a  table,  Hanson  made  the  same  claim 
and  refused  to  answer  two  questions.  (1)  "If  at  this  time  or  just 
prior  to  this  time  that  yourself  and  others  were  arrested  in  the  Arctic 
Billiard  Parlors  if  you  saw  anyone  there  playing  'stud  poker'  or 
'pangingi'  ?"  (2)  "If  at  this  same  time  you  saw  anyone  playing  a 
game  of  cards  at  the  table  at  which  you  were  sitting  ?  " 

The  foreman  of  the  grand  jury  promptly  reported  the  foregoing 
facts  and  the  judge  at  once  heard  the  recalcitrant  witnesses;  but  as 
the  record  contains  no  detailed  statement  of  what  then  occurred  we 
cannot  know  the  exact  circumstances.  The  court,  being  of  opinion 
"that  each  and  all  of  said  questions  are  proper  and  that  the  answers 
thereto  would  not  tend  to  incriminate  the  witnesses."  directed  them  to 
return  before  the  grand  jury  and  reply.  Appearing  there.  Mason 
again  refused  to  answer  the  first  question  propounded  to  him,  but, 
half  yielding  to  frustration,  said  in  response  to  the  second,  "I  don't 
know."     Hanson  refused  to  answer  either  question. 

A  second  report  was  presented  by  the  foreman ;  the  witnesses  were 
once  more  brought  into  court;  and  after  hearing  evidence  adduced 
by  both  sides  and  arguments  of  counsel  they  were  adjudged  in  con- 
tempt. It  was  further  ordered  "that  they  each  be  fined  in  the  sum 
of  $100,  and  that  they  each  be  imprisoned  until  they  comply  with 
the  orders  of  the  court  by  answering  the  questions."  Immediately 
following  this  order  they  made  answers,  but  these  are  not  set  out  in 
the  record.     The  fines  are  unpaid;    and  we  are  asked  to  reverse  the 

37  Bnt  a?e  Mannincc  v.  Morcantile  Securities  Co.,  242  111.  584,  90  N.  E.  23S, 
30  U  R.  A.  (N.  S.)  725  (1909). 


Sec.  3)  PRIVILEGE  271 

trial  court's  action  in  undertaking  to  impose  them  because  it  con- 
flicts with  the  inhibition  of  the  5th  Amendment  that  no  person  "shall 
be  compelled  in  any  criminal  case  to  be  a  witness  against  himself." 

During  the  trial  of  Aaron  Burr  and  "Re  WiUie,"  Fed.  Cas,  No. 
14,692e,  the  witness  was  required  to  answer  notwithstanding  his  re- 
fusal upon  the  ground  that  he  might  thereby  incriminate  himself. 
Chief  Justice  Marshall  announced  the  applicable  doctrine  as  fol- 
lows :  /_"VVhen  two  principles  come  in  conflict  with  each  other,  the 
court  must  give  them  both  a  reasonable  construction,  so  as  to  pre- 
serve them  both  to  a  reasonable  extent.  The  principle  which  en- 
titles the  United  States  to  the  testimony  of  every  citizen,  and  the 
principle  by  which  every  witness  is  privileged  not  to  accuse  himself, 
can  neither  of  them  be  entirely  disregarded.  They  are  believed  both 
to  be  preserved  to  a  reasonable  extent,  and  according  to  the  true  in- 
tention of  the  rule  and  of  the  exception  to  that  rule,  by  observing 
that  course  which  it  is  conceived  courts  have  generally  observed.  It 
is  this:  When  a  question  is  propounded,  it  belongs  to  the  court  to 
consider  and  to  decide  whether  any  direct  answer  to  it  can  implicate 
the  witness.  If  this  be  decided  in  the  negative,  then  he  may  answer 
it  without  violating  the  privilege  which  is  secured  to  him  by  law.  If 
a  direct  answer  to  it  may  criminate  himself,  then  he  must  be  the  sole 
judge  what  his  answer  would  be." 

The  constitutional  protection  against  self-incrimination  "is  confined 
to  real  danger,  and  does  not  extend  to  remote  possibilities  out  of  the 
ordinary  course  of  law."  Heike  v.  United  States,  227  U.  S.  131,  144, 
57  Iv.  Ed.  450,  455,  33  Sup.  Ct.  226,  Ann.  Cas.  1914C,  128;  Brown 
v.  Walker,  161  U.  S.  591,  599,  600,  40  L.  Ed.  819,  821,  822,  5  Interst. 
Com.  Rep.  369,  16  Sup.  Ct.  644. 

In  Reg.  V.  Boyes  (1861)  1  Best  &  S.  311,  329,  330,  121  Eng.  Reprint, 
730,  Cockburn,  C.  J.,  said : 

"It  was  also  contended  that  a  bare  possibility  of  legal  peril  was 
sufficient  to  entitle  a  witness  to  protection;  nay,  further,  that  the 
witness  was  the  sole  judge  as  to  whether  his  evidence  would  bring 
him  into  danger  of  the  law;  and  that  the  statement  of  his  belief  to 
that  effect,  if  not  manifestly  made  miala  fide,  should  be  received  as 
conclusive.  With  the  latter  of  these  propositions  we  are  altogether 
unable  to  concur.  *  *  *  fo  entitle  a  party  called  as  a  witness  to 
the  privilege  of  silence,  the  court  must  see,  from  the  circumstances  of 
the  case  and  the  nature  of  the  evidence  which  the  witness  is  called 
to  give,  that  there  is  reasonable  ground  to  apprehend  danger  to  the 
witness  from  his  being  compelled  to  answer.  We  indeed  quite  agree 
that,  if  the  fact  of  the  witness  being  in  danger  be  once  made  to  ap- 
pear, great  latitude  should  be  allowed  to  him  in  judging  for  himself 
of  the  effect  of  any  particular  question.  *  *  *  js^  question  which 
might  appear  at  first  sight  a  very  innocent  one  might,  by  affording  a 
link  in  a  chain  of  evidence,  become  the  means  of  bringing  home  an 
offense  to  the  party  answering.     Subject  to  this  reservation,  a  judge 


272  WITNESSES  (Ch.  2 

is,  in  our  opinion,  bound  to  insist  on  a  witness  answering  unless  he 
is  satisfied  tliat  tlie  answer  will  tend  to  place  the  witness  in  peril. 

"Further  than  this,  we  are  of  opinion  that  the  danger  to  be  appre- 
hended must  be  real  and  appreciable,  with  reference  to  the  ordinary 
operation  of  law  in  the  ordinary  course  of  things — not  a  danger  of 
an  imaginary  and  unsubstantial  character,  having  reference  to  some 
extraordinary  and  barely  possible  contingency,  so  improbable  that  no 
reasonable  man  would  suffer  it  to  influence  his  conduct.  We  think 
that  a  merely  remote  and  naked  possibility,  out  of  the  ordinary  course 
of  law  and  such  as  no  reasonable  man  would  be  affected  by,  should  not 
be  suffered  to  obstruct  the  administration  of  justice.  The  object  of 
the  law  is  to  afford  to  a  party,  called  upon  to  give  evidence  in  a  pro- 
ceeding inter  alios,  protection  against  being  brought  by  means  of  his 
own  evidence  within  the  penalties  of  the  law.  But  it  would  be  to 
convert  a  salutary  protection  into  a  means  of  abuse  if  it  were  to  be 
held  that  a  mere  imaginary  possibility  of  danger,  however  remote  and 
improbable,  was  sufficient  to  justify  the  withholding  of  evidence  es- 
sential to  the  ends  of  justice." 

The  statement  of  the  law  in  Reg.  v.  Boyes  was  expressly  approved 
by  all  the  judges  in  Ex  parte  Reynolds  (1882)  L.  R.  20  Ch.  Div.  294, 
51  L.  J.  Ch.  N.  S.  756,  46  L.  T.  N.  S.  508,  30  Week.  Rep.  651,  46 
J.  P.  533.  Similar  announcements  of  it  may  be  found  in  Ex  parte 
Irvine  (C.  C.)  74  Fed.  954,  960;  Ward  v.  State,  2  Mo.  120,  122,  22 
Am.  Dec.  449;  Ex  parte  Buskett,  106  Mo.  602,  608,  14  L.  R.  A.  407, 
27  Am.  St.  Rep.  378,  17  S.  W.  753. 

The  general  rule  under  which  the  trial  judge  must  determine  each 
claim  according  to  its  own  particular  circumstances,  we  think,  is  in- 
dicated with  adequate  certainty  in  the  above-cited  opinions.  Ordi- 
narily, he  is  in  much  better  position  to  appreciate  the  essential  facts 
than  an  appellate  court  can  hold,  and  he  must  be  permitted  to  exercise 
some  discretion,  fructified  by  common  sense,  when  dealing  with  this 
necessarily  difficult  subject.  Unless  there  has  been  a  distinct  denial 
of  a  right  guaranteed,  we  ought  not  to  interfere. 

In  the  present  case  the  witnesses  certainly  were  not  relieved  from 
answering  merely  because  they  declared  that  so  to  do  might  incrim- 
inate them.  The  wisdom  of  the  rule  in  this  regard  is  well  illustrated 
by  the  enforced  answer,  "I  don't  know,"  given  by  Mason  to  the  sec-: 
ond  question,  after  he  had  refused  to  reply  under  a  claim  of  constitu- 
tional privilege. 

No  suggestion  is  made  that  it  is  criminal  in  Alaska  to  sit  at  a  table 
where  cards  are  being  played,  or  to  join  in  such  game  unless  played 
for  something  of  value.  The  relevant  statutory  provision  is  section 
2032,  Compiled  Laws  of  Alaska  1913,  copied  in  the  margin. 


3S 


8  8  "Sec.  2032.  That  each  and  every  person  who  shall  deal,  play,  or  carry 
on,  open  or  cause  to  be  opened,  or  who  shall  conduct,  either  as  owner,  pro- 
prietor or  employee,  whether  for  hire  or  not,  any  game  of  faro,  monte,  roul- 
ette, rouge-et-noir,  lansquenet  rondo,  vingt-un,  twenty-one,  poker,  draw  poker. 


Sec.  3)  PRIVILEGE  273 

The  court  below  evidently  thought  neither  witness  had  reasonable 
cause  to  apprehend  danger  to  himself  from  a  direct  answer  to  any 
question  propounded,  and,  in  the  circumstances  disclosed,  we  cannot 
say  he  reached  an  erroneous  conclusion. 

Separate  errors  are  also  assigned  to  the  trial  court's  action  in  per- 
mitting counsel  to  introduce  two  documents  in  evidence;  but  we  think 
the  points  are  without  substantial  merit. 

The  judgment  under  review  is  affirmed. 


11.  Professional  Confidence 

WALDRON  v.  WARD. 
(Court  of  King's  Bench,  1654.     Style,  449.) 

In  a  tryal  at  the  Bar  between  Waldron  plaintiff,  and  Ward  de- 
fendant, one  Mr.  Conye  a  counceller  at  the  Bar  was  examined  upon 
his  oath  to  prove  the  death  of  Sir  Thomas  Conye.  Whereupon  Ser- 
jeant Maynard  urged  to  have  him  examined  on  the  other  part,  as  a 
witness  in  some  matters  whereof  he  had  been  made  privy  as  of 
counsel  in  the  cause. 

But  Roll,  Chief  Justice,  answered :  He  is  not  bound  to  make  an-  \ 
swer  for  things  which  may  disclose  the  secrets  of  his  client's  cause,  j 
and  thereupon  he  was  f  orborn  to  be  examined. 


SPARKE  V.  MIDDLETON. 
(Court  of  King's  Bench,  1664.     1  Keb.  505.) 

Mr.  Aylet  having  been  counsel  for  the  defendant,  desired  to  be 
excused  to  be  sworn  on  the  general  oath,  as  witness  for  the  plaintiff, 
to  give  the  whole  truth,  in  evidence,  which  the  Court  after  some 
dispute  granted ;  and  that  he  should  only  reveal  such  things  as  he  ei- 
ther knew  before  he  was  of  counsel,  or  that  came  to  his  knowledge 
since  by  other  persons,  and  the  particulars  to  which  he  was  to  be 

brag,  bluff,  thaw,  craps,  or  any  banking  or  other  game  played  with  cards, 
dice,  or  any  other  device,  whether  the  same  shall  be  played  for  money,  checks, 
credit,  or  any  other  representative  of  value,  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  punished  by  a  fine  of  not  more  than 
$500,  and  shall  be  imprisoned  in  the  county  jail  until  such  line  and  costs  are 
paid;  Provided,  that  such  person  so  convicted  sliall  be  imprisoned  one  day 
for  every  $2  of  such  fine  and  costs:  And  provided  further,  that  such  impris- 
onment shall  not  exceed  one  year." 

HiNT.Ev,— 18 


274  WITNESSES  (Ch.  2 

sworn  were  particularly  proposed,  viz.,  what  he  knew  concerning  a 
will  in  question  that  Poyns  Gorge  made ;  and  the  Court  only  put  the 
question,  whether  he  knew  of  his  own  knowledge.^* 


LORD  SAY  AND  SEAL'S  CASE. 

(Court  of  Queen's  Bench,   1712.     10  Mod.   40.) 

Upon  a  trial  at  Bar  in  the  Court  of  King's  Bench,  in  an  ejectment 
brought  by  the  heirs  at  law  against  the  Lord  Say  and  Seal,  who 
claimed  as  heir  in  tail;*" 

The  single  question  was,  whether  or  no  a  common  recovery  that 
was  suffered  in  order  to  dock  the  intail,  was  good  or  not? 

The  objection  to  the  recovery  was,  that  there  was  no  tenant  to  the 
praecipe. 

To  prove  the  recovery  good,  a  deed  bearing  date  the  twenty-third 
of  October,  1701,  directing  the  uses  of  the  recovery,  and  the  fine,  viz. 
the  chirograph  of  the  fine,  and  common  recovery,  were  produced. 

The  counsel  for  the  Lord  Say  and  Seal  desired  to  call  one  Knight, 
an  attorney  at  law,  to  prove,  that  though  the  deed  was  dated  the 
twenty-third  of  October,  it  was  not  executed  until  five  months  after, 
viz.  in  March. 

N.  B.  The  attorney  was  the  person  intrusted  in  suffering  the 
common  recovery. 

The  counsel  for  the  heirs  at  law  opposed  the  swearing  the  attorney, 
because  as  an  attorney  has  a  privilege  not  to  be  examined  as  to  the 
secrets  of  his  client's  cause,  so  the  attorney's  privilege  was  likewise 
the  client's  privilege ;  for  the  client  intrusts  an  attorney  with  the  se- 
crets of  his  cause,  upon  confidence  not  only  that  he  will  not,  but  also 
that  though  he  would  yet  he  should  not,  be  admitted  by  the  law  to 
betray  his  chent;  and  for  this  Holbeche's  case  was  rehed  upon.  Be- 
sides, it  was  said  that  his  evidence  would  tend  to  accuse  himself  either 
of  ignorance,  neghgence,  or  something  worse ;  and  in  Moore's  Reports, 
antedating  deeds  is  felony. 

The  Court  were  of  opinion,  that  Holbeche's  case  was  good  law ; 
and  that  an  attorney's  privilege  was  the  privilege  of  his  client;  and 
that  an  attorney,  though  he  would  yet  should  not  be  allowed  to  dis- 
ss Prentice,  J.,  in  Loomis  v.  Norman  Printers'  Supply  Co.,  SI  Conn.  343, 
71  Atl.  858  (1908):  "Counsel  for  the  plaintiff  were  within  thoir  rights  in 
calling  counsel  for  the  defendant  as  a  witness  to  testify  to  matters  not  of  a 
confidential  or  privileged  character.  The  impropriety  which  is  recognized  in 
the  conduct  of  an  attorney  who  volunteers  to  aid  the  cause  of  his  client  as 
a  witness  in  his  behalf  is  one  which  attaches  to  himself,  and  is  not  present 
when  lie  is  requisitioned  by  his  adversary.  A  due  recognition,  however,  of 
.  the  status  of  an  attorney  representing  his  client  in  the  trial  of  a  cause  de- 
I  mauds  that  he  be  not  required  by  adverse  counsel  to  talie  the  witness' 
I  stand  unless  there  be  a  reasonable  necessity  for  such  action," 

40  Tart  of  case  omitted. 


Sec.  3)  PRIVILEGE  275 

cover  the  secrets  of  his  chcnt.  But  notwithstanding  this,  they  thought 
Knight's  evidence  was  to  be  received ;  for  that  a  thing  of  such  a  na- 
ture as  the  time  of  executing  a  deed  could  not  be  called  the  secret 
of  his  client,  that  it  was  a  thing  he  might  come  to  the  knowledge 
of  without  his  client's  acquainting  him,  and  was  of  that  nature,  that 
an  attorney  concerned,  or  anybody  else,  might  inform  the  Court  of. 
Knight,  being  called  in,  swore,  that  it  being  feared  the  common 
recovery  would  be  good  for  nothing,  because  it  was  doubted  whether 
there  was  a  good  tenant  to  the  praecipe,  at  the  time  of  the  common 
recovery  suffered,  it  was  agreed  upon  as  the  best  expedient,  that  there 
should  be  a  fine  as  of  Sancti  Michaelis  levied  to  make  a  tenant  to 
the  praecipe,  which  was  five  months  before  the  fine  was  actually 
levied;  and  that  there  should  be  a  deed,  which  should  declare  the 
uses  of  the  fine  and  recovery,  and  recite  the  fine  to  be  of  Sancti 
Michaelis ;  and  that  the  deed  was  executed  when  the  fine  was  taken, 
viz.  in  March.     *     *     *  *^ 


VAILLANT  V.  DODEMEAD. 

(Court  of  Chancery,  1743.     2  Atk.  524.) 

The  bill  was  to  be  relieved  against  a  collusive  assignment  made  by 
the  defendant  Dodemead  of  a  lease  to  one  Lascells,  a  prisoner  in  the 
Fleet,  in  order  to  avoid  paying  a  ground  rent  to  the  plaintiff ;  the  de- 
fendant Dodemead  had  examined  Mr.  Bristow,  clerk  in  court  in  the 
cause,  who  demurred  to  the  plaintiff's  interrogatories  on  a  cross  ex- 
amination. 

The  demurrer  was,  for  that  he  knew  nothing  of  the  several  mat- 
ters inquired  of  by  the  interrogatories,  besides  what  came  to  his 
knowledge  as  clerk  in  court,  or  agent  for  the  defendant,  in  relation 
to  the  matters  in  question  in  this  cause,  and  therefore  submitted  to 
the  court,  whether  he  should  be  obliged  to  answer  thereto. 

Lord  Chancellor.* ^  These  demurrers  ought  to  be  held  to  very 
strict  rules;  I  am  of  opinion  there  are  several  objections  to  this  de- 
murrer, I  think  it  covers  too  much,  and  is  very  loosely  drawn,  for  all 

41  See,  also,  Doe  v.  Andrews,  Cowper.  S45  (1778),  where  the  attorney  for 
the  defendant  was  one  of  the  attestinc:  witnesses  to  a  deed,  and  was  at- 
tached for  contempt  for  refusing  to  testify  on  behalf  of  plaintiff  as  to  The 
execution  of  such  deed ;  Coveney  v.  Tannahill.  1  Hill  (N.  Y.)  33,  37  Am.  Dec. 
2S7  (1841);  Patten  v.  ]\Ioor,  29  N.  H.  1G3  (18.54),  where  the  attorney  was 
present  at  the  execution  of  an  instrument  to  his  client. 

The  attorney  may  be  compelled  to  testify  as  to  the  contents  of  a  notice 
served  on  him.  Spenceley  v.  Schulenbursh,  7  East,  357  (ISOC) ;  or  as  to 
what  took  place  in  court  on  a  former  trial.  Brown  v.  Foster,  1  IT.  &  X.  73G 
(1857);  or  as  to  the  mental  or  physical  condition  of  his  client,  Daniel  v. 
Daniel,  39  Pa.  191  (1S61);  State  v.  Fitzgerald.  68  Vt.  125,  34  Atl.  429  (1896)  ; 
or  as  to  whether  a  document  is  in  court,  Dwver  v.  Collins,  7  Exch.  639, 
(1852).  post.  p.  915. 

*-  Lord  Ilardwicke.     Part  of  opinion  omitted. 


276  WITNESSES  (Ch.  2 

demurrers  of  this  sort  ought  to  conclude,  that  he  knew  nothing  but 
by  the  information  of  his  chent. 

The  first  objection  made  against  this  demurrer  is,  That  it  appears 
in  this  case,  that  the  matters  inquired  after  by  the  plaintiff's  interroga- 
tories were  antecedent  transactions  to  the  commencement  of  the  suit, 
the  knowledge  whereof  could  not  come  to  Mr.  Bristow,  as  clerk  in 
court,  or  solicitor. 

The  second  objection.  That  this  is  a  cross  examination,  and  wher- 
ever at  law  the  party  calls  upon  his  own  attorney  for  a  witness,  the 
other  side  may  cross-examine  him,  but  that  must  be  only  relative 
to  the  same  matter,  and  not  as  to  other  points  of  the  cause. 

The  third  objection.  That  it  is  too  general;  for  the  words  are  that 
he  knew  nothing  but  as  clerk  in  court,  or  agent.*^ 

Now,  the  word  "agent"  is  very  extensive  and  uncertain,  for  no  per- 
sons are  privileged  from  being  examined  in  such  cases,  but  persons 
of  the  profession,  as  counsel,  solicitor,  or  attorney,  for  an  agent  may 
be  only  a  steward,  or  servant. 

The  fourth  objection.  That  one  of  the  interrogatories  was  an  enquiry 
concerning  the  proving  of  the  deed  of  assignment,  which  was  exhib- 
ited; I  am  of  opinion,  that  he  ought  to  answer  to  this,  though  he 
should  be  privileged  as  to  other  matters.     *     *    * 


POTTER  V.  INHABITANTS  OF  WARE. 

(Supreme  Judicial  Court  of  Massachusetts,  1848.     1  Cush.  519.) 

On  the  trial  of  this  action,  which  took  place  in  the  court  of  common 
pleas,  before  Wells,  C.  j.,  the  attorney  who  made  the  writ,  and  who 
was  also  actively  engaged  in  the  trial,  as  one  of  the  counsel  for  the 
plaintiff,  and  opened  the  cause  to  the  jury,  was  called  by  the  plaintiff 
as  a  witness,  and  was  allowed  to  testify  as  such,  against  the  objection 
of  the  defendants.  The  plaintiff  having  obtained  a  verdict,  the  defend- 
ants excepted.** 

Metcalf,  J,  The  only  question  that  has  been  argued  in  this  case 
is  whether  the  plaintiff's  attorney,  who  acted  as  counsel  at  the  trial, 
was  a  competent  witness  for  his  client;  and  we  know  of  no  common 
law  authority  for  excluding  his  testimony,  besides  the  two  very  recent 
decisions  in  the  English  bail  court,  which  were  cited  by  the  counsel 
for  the  defendants.  By  what  authority  the  judges,  sitting  in  that  court, 
made  those  decisions,  we  do  not  know ;  whether  by  virtue  of  the  rules 
which  the  judges  of  the  three  chief  courts  of  law  in  England  are  em- 

*8  It  is  held  that,  where  one  necessarily  uses  an  agent  to  coramunicate 
with  counsel,  the  party  will  be  protected  against  disclosure  by  such  agent. 
State  V.  Loponio,  85  N.  J.  Law,  357,  88  AU.  1045,  49  L.  R.  A.  (N.  S.)  1017 
(1913). 

**  Statement  condensed. 


Set.  3)  PRIVILEGE  277 

powered,  by  recent  statutes,  to  make  for  the  uniform  regulation  of 
practice  in  all  those  courts,  or  by  virtue  of  the  superintending  control 
which  those  courts  exercise  over  their  own  officers.  See  Smith  on  Ac- 
tions at  Law,  11,  24.  Whatever  that  authority  may  have  been,  we  have 
no  such  authority.  We  cannot  exclude  a  witness  by  reason  of  any 
views  which  we  may  entertain  respecting  the  policy  of  permitting  him 
to  testify.  We  can  only  administer  the  law  as  we  find  it  to  be.  And 
by  the  common  law,  persons  are  competent  witnesses,  unless  they  are 
made  incompetent  by  want  of  capacity,  or  of  religious  faith,  by  infamy, 
or  by  direct  interest  in  the  result  of  the  cause.  Witnesses  are  every 
day  permitted  to  testify,  whose  wishes  for  the  success  of  the  party 
who  calls  them  are  as  strong  as  those  of  the  party's  attorney  or  coun- 
sel. And  until  the  long  established  rules  are  changed  by  legislative 
enactment,  we  cannot  exclude  a  witness  merely  because  his  testimony 
is  to  be  given  in  behalf  of  his  client.  Whenever,  except  in  the  bail 
court,  attorneys  and  counsel  have  been  rejected  as  witnesses,  it  has  been 
on  the  same  ground  on  which  others  are  excluded ;  namely,  direct  in- 
terest in  the  event  of  the  suit,  &c.  See  Chaffee  v.  Thomas,  7  Cow.  (N 
Y.)  358;  Newman  v.  Bradley,  1  Dall.  240,  1  L.  Ed.  118;  Miles  v. 
O'Hara,  1  Serg.  &  R.  (Pa.)  32;  Geisse  v.  Dobson,  3  Whart.  (Pa.)  34; 
Slocum  V.  Newby,  5  N.  C.  423 ;  Reid  v.  Colcock,  1  Nott.  &  McC.  (S. 
C.)  592,  9  Am.  Dec.  729 ;  Chadwick  v.  Upton,  3  Pick.  (Mass.)  442 ; 
Jones  V.  Savage,  6  Wend.  (N.  Y.)  658;  Comm'th  v.  Moore,  5  J.  J. 
Marsh.  (Ky.)  655 ;  Brandigee  v.  Hale,  13  Johns.  (N.  Y.)  125.  In  the 
present  case,  the  objection  to  the  witness  was,  not  that  he  was  inter- 
ested, or  that  he  was  in  any  way  incompetent,  except  as  attorney  and 
counsel  for  the  plaintiff. 

In  most  cases,  counsel  cannot  testify  for  their  clients  without  sub- 
jecting themselves  to  just  reprehension.  But  there  may  be  cases  in 
which  they  can  do  it,  not  only  without  dishonor,  but  in  which  it  is 
their  duty  to  do  it.  Such  cases,  however,  are  rare ;  and  whenever  they 
occur,  they  necessarily  cause  g-eat  pain  to  counsel  of  the  right  spirit. 

Exceptions  overruled.*" 


COBDEN  v.  KENDRICK. 
(Court  of  King's  Bench,  1791.    4  Durn.  &  E.  431.) 

An  action  had  been  brought  some  time  before  by  the  present  de- 
fendant, as  indorsee  of  a  promissory  note  for  il50.  against  the  present 
plaintiff  as  the  maker ;  in  which  cause  interlocutory  judgment  had  been 
signed,  and  a  writ  of  inquiry  executed ;  after  which  the  cause  was 
compromised  by  Cobden's  paying  part,  and  giving  a  warrant  of  attor- 

*B  But  it  is  regarded  as  unprofessional  for  an  attorney  to  testify  on  behalf 
of  his  client  as  to  disputed  facts;  if  it  becomes  necessary  to  use  his  testi- 
mony, he  ought  to  withdraw  as  attorney.  McLaren  v.  Gillispie,  19  Utah, 
137,  56  Pac.  6S0  (1899). 


278  WITNESSES  (Ch.  2 

ney  to  confess  judgment  for  the  residue  of  the  £150.  And  in  the  in- 
terval between  the  time  when  the  warrant  of  attorney  was  given  and 
the  time  when  the  money  became  due,  according  to  the  defeasance 
thereof,  Kendrick  told  Allen,  who  was  his  attorney  in  that  suit,  that  he 
was  glad  it  was  settled,  for  that  he  had  only  given  £10.  in  cash,  and  his 
promissory  note  for  it,  and  that  he  knew  it  was  a  lottery  transaction. 
This  action  was  now  brought  to  recover  back  the  money  so  paid  on 
the  ground  of  want  of  consideration;  and  in  proof  that  that  was 
known  to  Kendrick  at  the  time  he  took  the  note.  Allen  was  called  as 
a  witness  at  the  trial  to  speak  to  the  conversation  above-mentioned, 
and  he  was  admitted  by  Lord  Kenyon  after  argument  upon  his  in- 
competency; and  a  verdict  passed  for  the  plaintiff. 

Law  now  renewed  his  objection,  and  moved  for  a  new  trial;  on  the 
ground  that  Allen  had  been  improperly  permitted  to  give  evidence  of 
the  conversation  between  him  and  the  defendant,  his  client;  contend- 
ing that  Allen  fell  within  the  rule  of  law  which  prohibited  an  attorney 
from  betraying  the  confidence  placed  in  him  by  his  client,  which  confi- 
dence lasts  so  long  as  any  proceedings  may  be  had  in  the  cause.  Here 
the  proceedings  were  not  completely  at  an  end  when  the  conversation 
was  held.  The  party  might  still  have  proceeded  to  judgment  in  the 
original  suit ;  and  the  attorney  had  still  his  lien  for  the  costs.  So  that 
the  relation  of  attorney  and  client  in  respect  of  the  parties  to  the  origi- 
nal suit  was  not  determined  at  the  time  when  the  communication  was 
made  by  Kendrick  to  Allen  his  attorney. 

Per  Curiam.  The  difference  is  whether  the  communication  were 
made  by  the  client  to  his  attorney  in  confidence  as  instructions  for  con- 
ducting his  cause,  or  a  mere  gratis  dictum.  The  former  was  not  the 
case  here :  on  the  contrary,  the  purpose  in  view  had  been  already  ob- 
tained;  and  what  was  said  by  the  client  was  in  exultation  to  his  at- 
torney for  having  before  deceived  him  a§  well  as  his  adversary,  and 
for  having  obtained  his  suit. 

Rule  refused.*^ 

46  Bell,  J.,  in  Moore  v.  Bray,  10  Pa.  519  (1849):  "*  *  *  It  seems, 
however,  to  have  been  thought  that,  because  the  facts  disclosed,  in  reference 
to  the  consideration  of  the  assignment  of  the  mortgage,  were  unessential  to 
the  conduct  of  the  suit,  and  the  communications  regarded  by  the  counsel  in 
the  light  of  casual  conversations,  they  are  not  entitled  to  protection.  But 
this  is  a  mistake.  It  is  true,  the  rule  does  not  embrace  the  disclosure  of 
collateral  facts,  made  during  accidental  conversations,  held  irrespective  of 
the  professional  character  of  the  recipient.  But  the  circle  of  protection  is 
not  so  narrow  as  to  exclude  communications  a  professional  person  may  deem 
unimportant  to  the  controversy,  or  the  briefest  and  lightest  talk  the  client 
may  choose  to  indulge  with  his  legal  adviser,  provided  he  regards  him  as 
sufh.  at  the  moment.  To  found  a  distinction  on  such  a  ground,  would  be  to 
measure  the  safety  of  the  confiding  party  by  the  extent  of  his  intelligence 
and  knowledge,  and  to  expose  to  betrayal  those  very  anxieties  which  prompt 
those  in  difficulty  to  seek  the  ear  of  him  in  whom  they  trust,  in  season  and  out 
of  season.  The  general  rule  is,  that  all  professional  communications  are 
sacred.  If  the  particular  ca.se  form  an  exception,  it  must  be  shown  by  him 
who  would  withdraw  the  seal  of  secrecy,  and,  I  think,  should  be  clearly 
shown.    This  has  not  been  done  in  the  present  instance." 


Sec.  3)  PRIVILEGE  279 

WILSON  V.  RASTALU 
(Court  of  King's  Bench,  1792.    4  Durn.  &  E.  753.) 

This  action  was  brought  to  recover  penalties  upon  the  bribery  act, 
for  bribing  voters  at  the  last  election  for  the  borough  of  Newark  upon 
Trent  to  vote  for  one  of  the  candidates.  The  bribery  was  charged  to 
have  been  committed  by  the  defendant  and  his  agents,  among  whom 
was  one  W.  Handley.  At  the  trial  before  Thompson,  B.  at  the  last 
Nottingham  assizes  W.  Handley  was  called  as  a  witness,  who  deposed 
that  previous  to  the  dissolution  of  parliament  in  the  Spring  of  1790 
he  had  received  letters  at  Newark  from  the  defendant  in  London, 
which  he  had  had  notice  to  produce  with  his  subpoena :  He  had  them 
not  however  to  produce,  but  gave  this  account  of  them ;  that  as  to 
part  he  had  restored  them  to  the  defendant  before  his  subpoena;  as 
to  the  rest  he  had  given  them  to  a  Mrs.  Elizabeth  Handley  at  her  de- 
sire, with  a  direction  to  destroy  them  after  she  had  read  them.  That 
he  had  since  endeavoured  to  procure  them  again  for  the  like  purpose 
of  destroying  them,  but  she  had  refused  to  give  them  up  to  him 
again;  and  he  knew  not  whether  they  were  destroyed  or  not.  Two 
of  these  letters  related  to  the  subject  of  the  election.  The  witness 
was  then  asked  the  contents  of  these  letters;  but  that  was  objected  to, 
as  Mrs.  Handley  might  be  called  upon  to  produce  the  letters  or  say 
what  was  become  of  them;  and  the  objection  was  allowed.  Mr.  B. 
Handley,  an  attorney,  was  then  called,  who  said,  that  he  had  the  let- 
ters in  question,  which  he  had  received  from  Mrs.  Handley;  and  that 
Mr.  W.  Handley  was  at  that  time  under  a  prosecution  for  bribery,  and 
he  wished  to  render  him  what  assistance  he  could.  That  Mrs.  H. 
had  desired  him  to  destroy  the  letters,  but  he  still  kept  them.  That 
there  was  no  action  now  depending  against  Mr.  W.  H.  but  the  two 
years  were  not  yet  expired.  The  letters  were  not  (that  he  knew  of) 
put  into  his  hands  with  Air.  W.  H.'s  privity;  but  he  had  kept  them 
with  his  privity  and  consent.  Mr.  W.  H.  had  indeed  desired  him  to 
destroy  them,  but  he  had  not  done  so  for  the  same  reason  as  he  had 
not  complied  with  the  hke  request  from  INIrs.  H.,  namely,  that  he 
had  soon  after  the  election  stated  that  Mr.  W.  H.  acted  only  under  the 
direction  of  Mr.  Rastall  in  the  election  business.  He  further  stated 
that  he  was  not  then  concerned  in  carrying  on  any  suit  for  W.  H. ; 
that  he  never  was  attorney  in  any  action  of  indemnity;  that  he  had 
been  applied  to  by  Mr.  W.  H.  to  be  concerned,  but  had  declined  it, 
giving  as  a  reason  that  he  was  under-sheriff  and  a  material  witness  in 
the  cause.  That  he  -had  not  employed  W.  H.'s  attorney  for  him ;  but 
that  W.  H.  had  consulted  him  in  his  profession  as  a  confidential  per- 
son; and  had  appHed  to  him  both  before  and  after  he  had  received 
the  letters  He  had  desired  the  witness  to  consult  with  his  attorney, 
which  he  had  done,  as  well  as  with  W.  H.  himself.  The  letters  were 
communicated  to  him  in  consequence  of   the  defendant's  consulting 


280  WITNESSES  (Ch.  2 

him  professionally.  The  witness  objected  to  produce  the  letters;  and 
the  learned  judge  thought  he  was  not  bound  so  to  do.  Mr.  W.  Handley, 
being  then  called  up  again  and  asked  as  to  the  contents  of  those  letters, 
refused  to  answer  the  question  as  tending  to  criminate  himself ;  which 
objection  was  allowed  by  the  judge.  The  plaintiff  then  went  into  oth- 
er evidence  (amongst  which  was  parol  evidence  of  those  very  letters) 
of  the  acts  of  bribery,  which  were  strongly  proved,  and  were  not 
impeached  by  any  contradictory  evidence:  The  jury  however  found 
a  verdict  for  the  defendant.  And  a  rule  nisi  was  granted  to  shew 
cause  why  there  should  not  be  a  new  trial  on  the  ground  of  mistake 
in  the  judge,  in  considering  that  B.  Handley  was  bound  by  his  char- 
acter of  attorney  to  withhold  the  letters  required  to  be  produced  in 
evidence.*^ 

BuLLER,  J.     This  doctrine  of  privilege  was  fully  discussed  in  a  case 
before  Lord  Hardwicke.     The  privilege  is  confined  to  the  cases  of 
counsel.  Solicitor,  and  Attorney ;  but  in  order  to  raise  the  privilege,  it 
must  be  proved  that  the  information,  which  the  adverse  party  wishes 
to  learn,  was  communicated  to  the  witness  in  one  of  those  characters ; 
for  if  he  be  employed  merely  as  a  steward,  he  may  be  examined.    It  is 
indeed  hard  in  many  cases  to  compel  a  friend  to  disclose  a  confiden- 
tial conversation;  and  I  should  be  glad  if  by  law  such  evidence  could 
be  excluded.     It  is  a  subject  of  just  indignation  where  persons  are 
anxious  to  reveal  what  has  been  communicated  to  them  in  a  confiden- 
tial manner ;  and  in  the  case  mentioned,  where  Reynolds  who  had  for- 
merly been  the  attorney  of  Mr.  Petrie,  but  who  was  dismissed  before 
the  trial  of  the  cause,  wished  to  give  evidence  of  what  he  knew  rel- 
ative to  the  subject  while  he  was  concerned  as  the  attorney,  I  strongly 
animadverted  on  his  conduct  and  would  not  suffer  him   to  be   ex- 
amined:   he  had  acquired  his  information  during  the  time  that  he 
acted  as  attorney;    and  I  thought  that  the  privilege  of  not  being  ex- 
amined to  such  points  was  the  privilege  of  the  party  and  not  of  the 
attorney;    and  that  that  privilege  never  ceased  at  any  period  of  time. 
In  such  a  case  it  is  not  sufficient  to  say  that  the  cause  is  at  an  end; 
the  mouth  of  such  a  person  is  shut  for  ever.     I  take  the  distinction 
to  be  now  well  settled,  that  the  privilege  extends  to  those  three  enumer- 
( ated  cases  at  all  times,  but  that  it  is  confined  to  these  cases  only.** 

<7  statement  condensed  and  part  of  opinion  of  Duller,  J.,  and  opinions  of 
Lord  Kenyon,  C.  J.,  and  Grose,  J.,  are  omitted. 

* 8  During  the  argument  Lord  Kenyon  observed:  "In  Madam  du  Barre's 
case,  I  considered  the  interpreter  as  standing  in  the  same  situation  as  the 
attorney  himself;  and  I  said  at  the  trial,  'That  he  was  the  organ  of  the 
attorney.' " 

See,  also,  State  v.  Loponio,  85  N.  J.  Law,  357,  88  Atl.  1045,  40  L.  R.  A. 
(N.  S.)  1017  (1913),  extending  the  privilege  to  cover  one  necessarily  employed 
to  write  to  the  attorney. 

In  Goddard  v.  Gardner,  28  Conn.  172  (1859),  it  was  held  that  where  the  in- 
terview between  the  attorney  and  client  took  place  in  the  presence  of  the 
attorney's  son,  who  had  no  connection  with  his  father's  business,  there  was 
no  privilege  which  would  exclude  the  testimony  of  the  son. 


Sec.  3)  PRIVILEGE  281 

There  are  cases  to  which  it  is  much  to  be  lamented  that  the  law  of 
privilege  is  not  extended ;  those  in  which  medical  persons  are  obliged 
to  disclose  the  information  which  they  acquire  by  attending  in  their 
professional  characters.  This  point  was  very  much  considered  in  The 
Duchess  of  Kingston's  case,  11  St.  Tr.  243,  where  Sir  C.  Hawkins, 
who  had  attended  the  Duchess  as  a  medical  person,  made  the  objec- 
tion, himself,  but  was  over-ruled,  and  compelled  to  give  evidence 
against  the  prisoner.  The  question  therefore  here  is,  whether  B. 
Handley  were  privileged  with  respect  to  any  person.  As  to  W.  Hand- 
ley,  he  certainly  was  not ;  for  he  said  that  the  witness  neither  was,  nor 
could  be,  his  attorney ;  because  he  was  at  that  time  acting  as  under- 
sheriff.  Neither  was  he  privileged  as  to  this  defendant  for  the  same 
reason;  and  though  it  was  said  that  the  defendant  (by  W.  Handley) 
consulted  him  in  his  profession  as  a  confidential  person,  the  meaning 
of  that  was  that  as  B.  Handley  was  more  conversant  with  business 
of  this  kind  than  those  who  were  not  of  his  profession,  W.  Handley 
consulted  him,  but  did  not  employ  him  as  an  attorney.  But  it  was 
contended,  on  the  part  of  the  plaintiff,  that  supposing  the  witness  were 
privileged  in  any  action  in  which  W.  Handley  was  a  party,  the  priv- 
ilege did  not  extend  to  this  action  against  Rastall.  But  to  that  I  can- 
not accede;  for  if  he  were  privileged,  so  as  not  to  be  examined  to 
particular  points  in  any  action  against  W,  Handley,  he  could  not  prove 
the  same  facts  in  an  action  against  any  other  person.  For  the  nature' 
of  this  kind  of  privilege  is  that  the  attorney  shall  not  be  permitted  to 
disclose  in  any  action  that  which  has  been  confidentially  commu- : 
nicated  to  him  as  an  attorney.  However  as  B.  Handley  was  neither 
the  attorney  of  W.  Handley  or  of  the  defendant,  I  am  of  opinion  that 
he  was  improperly  prevented  from  producing  the  letters  in  question. 
Then  as  to  the  other  ground:  I  know  of  no  case,  except  that  of  Jer- 
vois  Q.  T.  V.  Hall,  1  Wils.  17.,  in  which  the  Court  has  ever  refused  to 
grant  a  new  trial,  which  was  moved  for  on  account  of  the  mis-direc- 
tion or  mistake  of  the  judge.  *  ♦  ♦ 
Rule  absolute. 


CROMACK  V.  HEATHCOTE. 

(Court  of  Common  Pleas,  1820.     2  Brod.  &  B.  4.) 

Trespass  against  the  sheriff  for  seizing  goods  under  an  execution. 
The  defence  set  up  was,  that  the  goods  had  been  conveyed  by  the  fa- 
ther (against  whom  the  execution  issued)  under  a  fraudulent  assign- 
ment to  the  son.  To  prove  the  fraud,  the  defendant  proposed,  among 
other  evidence,  to  call  Smith,  an  attorney,  to  whom  the  father  had  ap- 
plied to  draw  the  assignment,  and  who  had  refused  to  draw  it,  know- 
ing that  an  execution  had  been  issued  against  tlie  father.  This  attorney 
was  not  employed  in  the  cause,  and  did  not  draw  the  assignment. 
Richards,  C.  B.,  before  whom  the  cause  was  tried  at  the  last  Hert- 


282  WITNESSES  (Ch.  2 

fordshire  assizes,  rejected  this  evidence,  on  the  ground  that  it  was  a 
confidential  communication  made  to  an  attorney.  The  jury  found  a 
verdict  for  the  plaintiff. 

Taddy,  Serjt.,  now  moved  to  set  aside  this  verdict  and  have  a  new 
trial,  on  the  ground  (among  other  objections)  that  this  evidence  had 
been  improperly  rejected.  He  contended,  that  the  rule,  as  to  the  ex- 
clusion of  the  evidence  of  solicitors  touching  matters  on  which  they 
had  been  consulted,  extends  only  to  communications  made  in  the  prog- 
ress of  a  cause ;  and  urged  that  a  solicitor  had  been  examined  touch- 
ing a  dissolution  of  partnership,  and  to  prove  the  usurious  considera- 
tion of  a  deed  he  had  drawn,  Duffin  v.  Smith,  Peake  N.  P.  C,  146: 
and  that  Lord  Kenyon  seemed  to  confine  the  rule  to  communications 
made  in  the  conduct  of  a  cause,  Cobden  v.  Kendrick,  4  T.  R.  431.  He 
cited  also  Wilson  v.  Rastall,  4  T.  R.  753,  and  Du  Barre  v.  Livette, 
Peake  N.  P.  C.  108. 

Dallas,  C.  J.  The  plaintiff  came  to  employ  Smith  as  an  attorney, 
though  Smith  happened  to  refuse  the  employment.  The  inquiry  made 
by  Lord  Kenyon  in  Wilson  v.  Rastall  is,  whether  the  party  was  as  he 
stated  consulted  professionally ;  and  is  not  this  a  consulting  on  profes- 
sional business?  One  is  staggered  at  first  on  being  told  that  there  are 
decided  cases  which  seem  at  variance  with  first  principles  the  most 
clearly  established ;  but  the  cases  cited  do  not  at  all  bear  out  the  prop- 
osition contended  for,  and  I  know  of  no  such  distinction  as  that  aris- 
ing from  the  attorney  being  employed  or  not  employed  in  the  cause. 
To  confine  ourselves  to  the  present  case :  here  is  a  client  who  goes  to 
give  instructions  touching  a  deed,  and  the  communication  must  be 
deemed  confidential,  as  between  attorney  and  client,  though  the  attorney 
happens  to  refuse  the  employment.  I  have  no  manner  of  doubt  on  the 
subject;  and  it  might  be  of  most  mischievous  consequence,  if,  by 
granting  a  rule,  we  should  be  supposed  to  have  cast  any  doubt  on  it. 

BuRROUGH,  J.  It  would  be  most  mischievous  if  it  were  once 
doubted  whether  or  no  a  communication  such  as  this  were  confidential 
as  between  attorney  and  client. 

Richardson,  J.  Suppose  the  case  of  an  attorney  consulted  on  the 
title  to  an  estate,  where  there  was  a  defect  in  the  title,  can  it  be  con- 
tended that  he  would  ever  be  at  liberty  to  divulge  the  flaw?  I  never 
heard  of  the  rule  being  confined  to  attorneys  employed  in  a  cause.  I 
am  of  opinion,  that  the  communication  in  this  case  was  of  a  nature  not 
to  be  divulged  by  the  attorney  to  whom  it  was  made. 

Rule  refused.** 

49  And  so  In  Foster  v.  Hall,  12  Pick.  (Mass.)  89,  22  Am.  Dec.  400  (1831), 
M'here  the  authorities  are  elaborately  reviewed. 

In  Doe  V.  Watkins,  3  Bingh.,  N.  C.  421  (1837),  the  privilege  was  recognized 
in  the  case  of  an  attorney  who  had  acted  for  both  the  borrower  and  the 
lender. 

But  where  an  attorney  was  consulted  by  two  persons  for  the  purpose  of 
having  mutual  wills  drawn,  the  coninumications  for  this  purpose  were  not 
privileged  in  an  action  between  the  representatives  of  such  persons.  Wal- 
lace V.  Wallace,  216  N^  Y..28,  109  N.  E.  872  (1915). 


Sec.  3)  PRIVILEGE  283 

REG.  V.  COX  AND  RAILTON. 
(Court  of  Crown  Cases  Reserved,  18S4.    15  Cox,  Cr.  Cas.  611.) 

Stephen,  J.,'*"  read  the  following  judgment: 

This  case  was  tried  before  the  Recorder  of  London  at  the  February 
sessions  of  the  Central  Criminal  Court.  The  defendants  were  con- 
victed subject  to  a  case  reserved  for  our  opinion.  The  case  was  argued 
first  before  five  judges  on  the  5th  day  of  April,  and  afterwards,  on 
account  of  its  great  importance,  before  ten  judges  on  the  21st  day 
of  June.  We  said  on  that  occasion  that  we  were  unanimously  of 
opinion  that  the  conviction  must  be  confirmed,  but  we  deferred  the 
statement  of  our  reasons  in  order  that  they  might  be  given  with  due 
fullness  and  deliberation.  The  facts  were  as  follows:  The  two  de- 
fendants, Richard  Cobden  Cox  and  Richard  Johnson  Railton,  were 
indicted  for  a  conspiracy  with  intent  to  defraud  Henry  Munster. 
The  indictment  was  set  out  as  part  of  the  case.  It  contained  six 
counts,  and  was*  objected  to  on  grounds  which  we  do  not  think  it 
necessary  to  state,  as  we  are  all  of  opinion  that  some  at  least  of  the 
counts  were  good,  and  as  the  objections  made  to  others  were  not 
insisted  on  in  argument.  The  serious  question  was  as  to  the  admis- 
sibility of  the  evidence  of  a  solicitor,  which  was  given  under  the  fol- 
lowing circumstances:  On  the  9th  day  of  April,  1881,  the  two  de- 
fendants entered  into  a  partnership  in  the  business  of  newspaper 
proprietors  with  respect  to  a  newspaper  called  the  Brightonian.  In 
February,  1882,  Mr.  Munster  brought  an  action  against  Railton  for 
a  libel  which  appeared  in  that  paper.  On  the  24th  day  of  June,  1882, 
the  action  ended  in  a  verdict  for  the  plaintifif  for  40s.  and  costs  as 
between  solicitor  and  client.  The  costs  were  taxed  on  the  18th  day 
of  August,  and  on  the  20th  execution  was  issued  against  Rail- 
ton  for  the  amount.  The  sheriff  was  met  by  a  bill  of  sale  from 
Railton  to  Cox,  dated  the  12th  day  of  August,  1882,  and  withdrew. 

An  interpleader  action  to  test  the  validity  of  the  bill  of  sale  was 
tried  on  the  15th  day  of  January,  1883.  At  that  trial  the  deed  of  part- 
nership of  the  9th  day  of  April,  1881,  was  produced,  bearing  upon  it 
an  indorsement  purporting  to  be  a  memorandum  of  dissolution  of 
partnership,  dated  the  3rd  day  of  January,  1882.  The  case  for 
the  prosecution  was  that  the  bill  of  sale  was  a  fraudulent  bill  of 
sale  of  the  partnership  assets,  entered  into  between  Railton  and 
Cox  while  they  were  partners,  for  the  purpose  of  depriving  Mr.  Mun- 
ster of  the  fruits  of  his  judgment,  and  that  the  memorandum  of 
dissolution  of  partnership  was  indorsed  on  the  deed,  not  on  the  3rd 
day  of  January,  1882,  when  it  bore  date,  but  subsequently  to  Mr. 
Munster's  judgment.  In  order  to  prove  this  case,  Mr.  Goodman, 
a  solicitor,  was  called,  who  said  (his  evidence  having  been  objected 

■60  Statement  and  part  of  opinion  omitted. 


284  WITNESSES  (Ch.  2 

to,  and  the  objection  having  been  overruled):  "On  the  28th  day  of 
June,  or  thereabouts,  Railton  and  Cox  came  to  me.  Railton  said, 
'I  suppose  you  have  heard  the  result  of  the  Munster  case?'  I  said 
'Yes.'  He  said  'Can  anything  be  done  to  prevent  the  property  being 
•seized  under  an  execution?'  I  said  'Only  a  sale  to  a  bona  fide  pur- 
chaser.' He  said,  'Could  the  property  be  sold  and  I  remain  in  pos- 
session as  manager?'  I  said,  'No;  you  must  go  out  of  possession.' 
He  said,  'That  won't  do.  Can  I  give  a  bill  of  sale  to  Mr.  Cox?'  I 
said,  'You  cannot,  because  of  the  partnership.'  Railton  said,  'Does 
any  one  know  of  the  partnership  besides  you  and  ourselves?'  I 
said,  'No ;  not  that  I  am  aware  of,  only  my  clerks.'  Cox  said,  'Then 
you  do  not  think  a  bill  of  sale  will  do?'  I  said,  'Certainly  not.'  They 
then  asked  my  fee  and  paid  it;  and  left  the  office.  Nothing  was  said 
about  a  dissolution  at  that  interview.  The  interview  was  with  me  as 
a  solicitor,  and  I  was  paid  my  fee.  It  was  expressly  arranged  that 
the  partnership  should  be  kept  secret.  Nothing  either  way  was  said 
about  a  dissolution." 

The  question  for  our  decision  was  whether  this  evidence  was 
rightly  admitted.  We  must  take  it  after  the  verdict  of  the  jury,  that, 
so  far  as  the  defendants  Railton  and  Cox  were  concerned,  their 
communication  with  Mr.  Goodman  was  a  step  preparatory  to  com- 
mission of  a  criminal  offence,  namely,  a  conspiracy  to  defraud.  The 
conduct  of  Mr.  Goodman,  the  solicitor,  appears  to  have  been  un- 
objectionable. He  was  consulted  in  the  ordinary  course  of  business, 
and  gave  a  proper  opinion  in  good  faith.  The  question,  therefore,  is 
whether,  if  a  client  applies  to  a  legal  adviser  for  advice  intended  to 
facilitate  or  to  guide  the  client  in  the  commission  of  a  crime  or  fraud, 
the  legal  adviser  being  ignorant  of  the  purpose  for  which  his  ad- 
vice is  wanted,  the  communication  between  the  two  is  privileged.  We 
expressed  our  opinion  at  the  end  of  the  argument  that  no  such  priv- 
ilege existed.  If  it  did,  the  result  would  be  that  a  man  intending 
to  commit  treason  or  murder  might  safely  take  legal  advice  for 
the  purpose  of  enabling  himself  to  do  so  with  impunity,  and  that 
the  solicitor  to  whom  the  application  was  made  would  not  be  at  liberty 
to  give  information  against  his  cHent  for  the  purpose  of  frustrating 
his  criminal  purpose. 

Consequences  so  monstrous  reduce  to  an  absurdity  any  principle 
or  rule  in  which  they  are  involved.  Upon  the  fullest  examination  of 
the  authorities,  we  believe  that  they  are  not  warranted  by  any  prin- 
ciple or  rule  of  the  law  of  England ;  but  it  must  be  admitted  that  the 
law  upon  the  subject  has  never  been  so  distinctly  and  fully  stated  as  to 
show  clearly  that  these  consequences  do  not  follow  from  principles 
which  do  form  part  of  the  law,  and  which  it  is  of  the  highest  im- 
portance to  maintain  in  their  integrity.  We  must  also  observe  that  de- 
cisions have  been  given — one  by  the  Court  of  Common  Pleas,  and 
several  by  single  judges  sitting  in  the  Crown  Courts,  or  at  Nisi  Prius 


Sec.  3)  PRIVILEGE  285 

— which  have  afforded  some  countenance  to  the  supposition  that  the 
law  of  England  is  committed  to  doctrines  from  which  these  conse- 
quences might  be  deduced.  We  propose  accordingly  first  to  state  what, 
upon  a  full  consideration  of  the  cases,  appears  to  us  to  be  the  prin- 
ciple upon  which  the  present  case  must  be  decided,  and  then  to  ex- 
amine the  principal  cases  in  which  it  has-been  applied,  with  the 
view  of  showing  that  our  decision  is  not  inconsistent  with  the 
great  majority  of  them,  though  it  undoubtedly  does  differ  from  oth- 
ers.    ♦     *     ♦ 

From  this  examination  of  the  authorities^^  it  will  be  seen  that  we 
differ  from  one  decision  of  the  full  Court  of  Common  Pleas,  and  from 
two  decisions  at  Nisi  Prius,  but  we  do  so  on  the  strength  of  other 
decisions  which  appear  to  us  not  only  to  be  of  greater  authority,  but 
also  to  be  more  in  accordance  with  legal  principles  as  well  as  with 
justice  and  expediency.  We  have  one  other  matter  to  notice.  We  were 
greatly  pressed  with  the  argument  that,  speaking  practically,  the  ad- 
mission of  any  such  exception  to  the  privilege  of  legal  advisers  as 
that  it  is  not  to  extend  to  communications  made  in  furtherance  of 
any  criminal  or  fraudulent  purpose  would  greatly  diminish  the  value  of 
that  privilege.  The  privilege  must,  it  was  argued,  be  violated  in 
order  to  ascertain  whether  it  exists.  The  secret  must  be  told  in  or- 
der to  see  whether  it  ought  to  be  kept.  We  were  earnestly  pressed 
to  lay  down  some  rule  as  to  the  manner  in  which  this  consequence 
should  be  avoided. 

The  only  thing  which  we  feel  authorised  to  say  upon  this  matter 
is,  that  in  each  particular  case  the  court  must  determine  upon  the 
facts  actually  given  in  evidence  or  proposed  to  be  given  in  evidence, 
whether  it  seems  probable  that  the  accused  person  may  have  con- 
sulted his  legal  adviser,  not  after  the  commission  of  the  crime  for  the 
legitimate  purpose  of  being  defended,  but  before  the  commission  of  the 
crime  for  the  purpose  of  being  guided  or  helped  in  committing  it. 
We  are  far  from  saying  that  the  question  whether  the  advice  was 
taken  before  or  after  the  offence  will  always  be  decisive  as  to  the  ad- 
missibility of  such  evidence.  Courts  must  in  every  instance  judge 
for  themselves  on  the  special  facts  of  each  case,  just  as  they  must 
judge  whether  a  witness  deserves  to  be  examined  on  the  supposition 
that  he  is  hostile,  or  whether  a  dying  declaration  was  made  in  the  im- 
mediate prospect  of  death.  In  this  particular  case  the  fact  that  there 
had  been  a  partnership  (which  was  proved  on  the  trial  of  the  inter- 
pleader issue),  the  assertion  that  it  had  been  dissolved,  the  fact  that 
directly  after  the  verdict  a  solicitor  was  consulted,  and  that  the  exe- 

61  The  omitted  part  of  the  opinion  reviews  Greenough  v.  Gaskell,  1  M.  & 
K.  98  (1833) ;  Follett  v.  Jefferyes,  1  Sim.  N.  S.  1  (1850) ;  RussoU  v.  Jackson. 
9  Hiue,  387  (1851) ;  Gartside  v.  Outram,  26  I*  J.  Ch.  113  (1850) ;  Cromack  v. 
Heathcote,  2  B.  &  B.  4  (1820). 


2S6  WITNESSES  (Ch.  2 

cution  creditor  was  met  by  a  bill  of  sale  which  purported  to  have 
been  made  by  the  defendant  to  the  man  who  had  been  and  was  said 
to  have  ceased  to  be  his  partner,  made  it  probable  that  the  visit  to  the 
solicitor  really  was  intended  for  the  purpose  for  which,  after  he  had 
given  his  evidence,  it  turned  out  to  have  been  intended.  If  the  inter- 
view had  been  for  an  innocent  purpose,  the  evidence  given  would  have 
done  the  defendants  good  instead  of  harm.  Of  course  the  power 
in  question  ought  to  be  lised  with  the  greatest  care  not  to  hamper  pris- 
oners in  making  their  defence,  and  not  to  enable  unscrupulous  persons 
to  acquire  knowledge  to  which  they  have  no  right,  and  every  precau- 
tion should  be  taken  against  compelling  unnecessary  disclosures. 
Conviction  affirmed.^^ 


HEMENWAY  v.  SMITH. 

(Supreme  Court  of  Vermont,  1856.     28  Vt.  701.) 

Assumpsit.  The  declaration  contained  three  counts,  the  first  being 
for  money  had  and  received  by  the  defendants  to  the  plaintiff's  use; 
the  second  for  the  rent,  use,  and  occupation  of  the  plaintiff's  farm, 
called  the  Gould  farm ;  and  the  third  for  money  lent  to,  and  paid  for 
the  defendants.  Plea,  the  general  issue;  trial  by  jury,  January  term, 
1856,  Underwood,  J.,  presiding. 

The  defendant  Orcutt,  was  a  witness  on  the  part  of  the  defendants, 
and  gave  evidence  tending  to  sustain  the  issue  on  tlieir  part.  The  plain- 
tiff's counsel,  upon  cross-examination,  offered  to  prove  by  said  Orcutt, 
that  he  consulted  counsel  soon  after  the  suit  was  commenced,  to  ascer- 
tain whether  they  had  a  defense  to  said  action ;  •  and,  among  other 
things,  that  he  inquired  of  said  counsel,-  whether  they  had  a  right  to 
abandon  said  contract  by  its  original  terms,  without  any  new  agree- 
ment ;  and  that,  in  consulting  said  counsel,  he  did  not  say  or  pretend  to 
him  that  any  such  agreement  had  been  made.  To  its  admissibility  the 
defendants  objected  on  the  ground  that  these  were  privileged  com- 
munications. 

The  court  overruled  the  objection,  and  the  testimony  was  admitted, 
to  which  defendants  excepted. 

The  jury,  under  these  instructions,  returned  a  verdict  for  the  plain- 
tiff for  the  whole  amount  claimed.     Exceptions  by  the  defendants.^^ 

02  For  comments  on  this  class  of  cases,  see  Alexander  v.  U.  S.,  138  U.  S. 
353,  11  Sup.  Ct.  350,  34  !>.  Ed.  954  (1891). 

That  the  privilege  does  not  protect  the  opinion  of  counsel  obtained  to  en- 
able the  client  to  perpetrate  a  civil  fraud,  though  the  attorney  acted  inno- 
cently, see  Williams  v.  Quebroda  Ry.  Co.,  L.  R.  2  Ch.  (1895)  751,  annotated 
in  Costigan's  Cases  on  Legal  Ethics,  p.  90. 

OS  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  3)  PRIVILEGE  287 

Bennett,  J.  We  think  Orcutt,  though  made  a  witness  by  the 
statute,  cannot  be  compelled  to  disclose  any  consultation  which  he  may 
have  had  with  his  counsel  in  relation  to  the  cause. 

The  rule  should  be  the  same  as  it  would  have  been  if  the  counsel 
had  been  called  to  prove  tlie  consultation.     *     *     * 

Judgment  reversed.' 


54 


WENTWORTH  v.  LLOYD  et  al. 
(House  of  Lords,  1864.     10  H.  L.  Cas.  5S9.) 

In  this  case  a  suit  had  been  instituted  by  the  appellant  to  set  aside 
a  sale  of  certain  estates  and  other  property  formerly  belonging  to  him 
in  New  South  Wales,  which  sale  was  made  on  his  behalf  by  one  of 
the  respondents  to  the  others  of  them,  and  the  appellant  impeached 
the  fairness  of  the  transaction.  The  case  was  heard  before  the  Mas- 
ter of  the  Rplls,  who  in  September,  1863,  directed  the  bill  to  be  dis- 
missed. Evidence  had  been  taken  in  Sydney,  and  one  of  the  witnesses 
was  a  Mr.  Wright,  who  had  acted  for  some  years  as  the  appellant's 
solicitor  in  the  colony.  ISIr.  Wright  was  asked  a  question,  the  answer 
to  Vv-hich  was  prevented  from  being  given  by  an  objection  founded  on 
the  fact  that  he  had  acquired  his  knowledge  through  his  professional 
employment.  In  commenting  upon  the  case  the  Master  of  the  Rolls 
said,  "Mr.  Wright  is  asked  this  question,  'Did  Mr.  Wentworth  ever 
say  anytliing  to  you  on  the  subject  of  any  of  his  dealings  with  Mr. 
Mort?'  Before  the  answer  was  given  the  plaintiff  interposed  with  this 
question,  'Were  those  communications  between  me  and  you  profession- 
al?' To  which  Mr.  Wright  said,  'They  were.'  And  the  counsel  for 
Mr.  Lloyd  of  course  did  not  press  his  question  or  obtain  any  answer. 
The  plaintiff  no  doubt  had  a  right  to  prevent  Mr.  Wright  from  stating 
what  the  plaintiff  had  told  him  about  Mr.  Mort.  It  is  the  client's 
privilege  to  prevent  the  solicitor  from  divulging  confidential  communi- 
cations. But  if  the  client  chooses  to  adopt  this  conduct,  he  must  be 
subject  to  the  rule  laid  down  in  Armory  v.  Delamirie,  Str.  505,  where 
the  keeping  back  of  evidence  must  be  taken  most  strongly  against  the 
person  who  does  so.  When  I  say  this  I  wish  to  distinguish  between 
the  case  of  the  suppression  of  evidence  by  a  witness,  and  the  case 
where  he  declines  to  answer  the  question  on  the  ground  that  he  is  not 
bound  to  criminate  himself;  in  which  case  no  presumption  of  guilt 
can  be  fairly  drawn  from  his  refusal  to  answer,  or  the  privilege  would 
be  at  once  destroyed.  This  is  no  case  of  crimination.  By  tlie  terms 
of  the  obligation  he  is  under  in  this  suit  he  is  bound  to  supply  every 
species  of  evidence,  written  or  parol,  that  he  can,  and  I  must  treat  his 

64  The  rule  in  equity  was  that  a  defendant  was  not  bound  to  give  discov- 
ery as  to  communications  witla  liis  counsel.  Pcarso  v.  Pearse,  1  De  G.  &  Sm. 
12*  (184(i) ;  Nias  v.  Northern  &  E.  Ry.  Co.,  3  Myl.  &  Cr.  355  (ISoS) ;  Hughes 
V.  Biddulph,  4  liussell,  190  (1S27). 


288  WITNESSES  (Ch.  2 

refusal  to  allow  a  witness  to  answer  a  question  in  the  same  light  as  if 
he  had  kept  a  material  witness  out  of  the  way,  or  refused  or  prevent- 
ed the  production  of  a  document  in  his  possession." 

Lord  Chelmsford  concurred,  and  with  reference  to  excluding  evi- 
dence, on  the  ground  that  the  knowledge  of  the  facts  inquired  into 
had  been  professionally  obtained,  said : 

The  use  which  the  Master  of  the  Rolls  made  of  the  exercise  of  the 
plaintiff's  right  to  prevent  the  disclosure  of  confidential  communica- 
tions seems  to  me  so  entirely  at  variance  with  principle,  and  so  utterly 
in  contradiction  to  the  well-known  and  invariably  recognized  privilege 
of  professional  confidence,  that  I  cannot  pass  it  by  in  silence;  and, 
without  dwelling  upon  the  contrasted  case,  I  think  it  would  be  found 
upon  examination  that  the  presumptions  in  the  two  instances  to  which 
his  Honor  referred,  are  exactly  the  reverse  of  what  he  assumed  them 
to  be.  I  confess  that  I  am  unable  to  conceive  the  analogy  between  a 
client  closing  the  mouth  of  his  solicitor  upon  a  question  as  to  profes- 
sional communications,  and  the  conduct  of  the  jeweller  in  Armory  v. 
Delamirie,  who,  upon  a  mounted  jewel  which  had  been"  found  being 
brought  to  him,  took  out  the  stones  and  returned  the  empty  socket  to 
the  finder,  and  not  producing  the  jewel  at  the  trial  of  the  action  brought 
to  recover  its  value,  was  made  to  pay  in  damages  the  value  of  a  jewel 
of  the  finest  water,  which  would  fit  the  socket,  upon  the  rule  omnia 
praesumuntur  contra  spoliatorem.  But  a  person  who  refuses  to  allow 
his  solicitor  to  violate  the  confidence  of  the  professional  relation  cannot 
be  regarded  in  that  odious  light.  The  law  has  so  great  a  regard  to  the 
preservation  of  the  secrecy  of  this  relation,  that  even  the  party  himself 
cannot  be  compelled  to  disclose  his  own  statements  made  to  his  solicitor 
with  reference  to  professional  business. 

As  Lord  Brougham  says,  when  speaking,  in  Bolton  v.  The  Corpora- 
tion of  Liverpool,  1  Myl.  &  K.  94,  95,  of  the  supposed  right  to  compel 
the  disclosure  of  such  communications :  "It  is  plain  that  the  course  of 
justice  must  stop  if  such  a  right  exists.  No  man  will  dare  to  consult  a 
professional  adviser  with  a  view  to  his  defence,  or  to  the  enforce- 
ment of  his  rights."  The  exclusion  of  such  evidence  is  for  the  general 
interest  of  the  community,  and  therefore  to  say  that  when  a  party  re- 
fuses to  permit  professional  confidence  to  be  broken,  everything  must 
be  taken  most  strongly  against  him,  what  is  it  but  to  deny  him  the  pro- 
tection which,  for  public  purposes,  the  law  affords  him,  and  utterly 
to  take  away  a  privilege  which  can  thus  only  be  asserted  to  his  preju- 
dice. I  have  been  drawn  aside  from  considering  the  facts  of  this  case 
through  an  apprehension  that  the  authority  of  the  Master  of  the  Rolls 
might  be  hereafter  asserted  as  establishing  what  appears  to  me  to  be  a 
most  serious  departure  from  the  principles  of  the  law  of  evidence  ap- 
plicable to  professional  confidence."" 

6  0  And  so  in  a  case  where  a  defendant  failed  to  call  his  wife  as  a  witness, 
under  a  statute  making  her  competent  on  behalf  of  her  husband.  Knowles 
V.  People,  15  Mich.  408  (1SG7) ;   Johnson  v.  State,  63  Miss.  313  (ISSo). 


Sec.  3)  PRIVILEGE  289 

PRADER  V.  NATIONAL  MASONIC  ACCIDENT  ASS'N. 

(Supreme  Court  of  Iowa,  1895.     95  Iowa,  149,  63  N.  W.  601.) 

Action  in  equity  to  recover  on  a  certificate  of  membership,  and  to 
compel  the  levying  and  collection  of  an  assessment  for  the  payment 
of  the  amount  claimed  to  be  due.  There  was  a  hearing  on  the  merits, 
and  a  decree  for  the  plaintiff.    The  defendant  appeals. 

Robinson,  J.°"  *  *  *  The  appellant  claims  that  the  death  of 
Prader  was  due  to  heart  failure,  which  was  the  result  of  chronic  al- 
coholism, and  not  to  the  accident  in  question.  To  sustain  that  claim,  it 
offers  the  testimony  of  Dr.  Mirick  and  Dr.  Hunter.  The  knowledge 
of  both  in  regard  to  the  condition  and  cause  of  the  death  of  Prader 
was  acquired  chiefly,  if  not  wholly,  while  they  were  acting  as  his  physi- 
cians. Dr.  Mirick  had  been  Prader's  family  physician  for  several 
years.  Dr.  Hunter  was  called  to  consult  with  Dr.  Mirick  a  few  hours 
before  Prader's  death,  and  his  knowledge  of  the  conditions  and  cause 
of  death  of  Prader  was  derived  from  the  history  of  the  case  as  given 
him  by  Dr.  Mirick  and  from  a  personal  examination.  The  plaintiff 
objects  to  the  testimony  of  these  physicians,  on  the  ground  that  their 
knowledge  was  obtained  professionally,  for  the  purpose  of  properly 
discharging  their  duties  in  the  treatment  of  Prader,  and  that  it  is 
therefore  privileged  and  incompetent.  Section  3643  of  the  Code  is 
as  follows :  "No  practicing  *  *  *  physician  *  *  *  shall  be 
allowed  in  giving  testimony  to  disclose  any  confidential  communica- 
tion properly  intrusted  to  him  in  his  professional  capacity,  and  neces- 
sary and  proper  to  enable  him  to  discharge  the  functions  of  his  of^ce 
according  to  the  usual  course  of  practice.  Such  prohibition  shall  not 
apply  to  cases  where  the  party  in  whose  favor  the  same  are  made  shall 
waive  the  right  conferred."  This  statute,  in  its  application  to  verbal 
communications  made  by  patients  to  their  physicians,  has  been  consid- 
ered in  the  following  cases:  Guptill  v.  Verback,  58  Iowa,  99,  12  N.  W. 
125;  Raymond  v.  Railway  Co.,  65  Iowa,  152,  21  N.  W.  495;  McCon- 
nell  V.  City  of  Osage,  80  Iowa,  298,  45  N.  W.  550,  8  L.  R.  A.  77^. 
As  applied  to  such  communications  its  meaning  is  clear  and  settled. 

But  it  is  contended  by  the  appellant  that  it  has  no  application  to 
knowledge  acquired  by  physicians  by  a  personal  examination  of  their 
patients,  or  from  any  source  other  than  statements  made  by  them. 
The  privilege  did  not  exist  at  common  law,  but  is  created  by  statute 
and  varies  in  different  states.  The  general  rule  is  said  to  be  that  "the 
privilege  extends  to  facts  necessary  to  enable  the  physician  to  prescribe, 
and  which  are  communicated  to  him  for  the  purpose  of  enabling  him 
to  perform  his  professional  duties.  Such  facts  are  privileged,  whether 
learned  directly  from  the  patient  himself,  or  acquired  by  the  physician 

58  Part  of  opinion  omitted- 
HiNT.Ev.— 19 


290  WITNESSES  '  (Ch.  2 

through  his  own  observation  or  examination."  19  Am.  &  Eng.  Enc. 
Law,  147.  By  a  statute  of  New  York,  "any  information"  which  the 
physician  may  have  acquired  in  attending  his  patient  in  a  professional 
character,  and  which  was  necessary  to  enable  him  to  prescribe  as  a 
physician,  is  privileged.  Under  that  statute,  information  may  be  privi- 
leged which  is  derived  from  the  statements  of  the  patient,  from  the 
statements  of  others  about  him,  or  from  the  observation  of  his  appear- 
ance and  symptoms.  Edington  v.  Insurance  Co.,  67  N.  Y.  194,  Id.,  77 
N.  Y.  568.  The  same  rule  is  followed  under  a  similar  statute  in  Mis- 
souri.    Gartside  v.  Insurance  Co.,  76  Mo.  446,  43  Am.  Rep.  765. 

Under  a  statute  of  Indiana,  physicians  are  not  competent  witnesses 
"as  to  matters  confided  to  them  in  the  course  of  their  profession, 
*  *  *  unless  with  the  consent  of  party  making  confidential  com- 
munication." This  has  been  held  to  apply  to  matters  learned  by  ob- 
servation and  by  examination  of  patients.  Association  v.  Beck,  77  Ind. 
203,  40  Am.  Rep.  295.  Although  the  statute  of  this  state  uses  the  word 
"communication,"  it  means  much  the  same  as  the  word  "information" 
in  the  statutes  of  other  states  to  which  we  have  referred.  The  prohi- 
bition of  our  statute  refers,  not  merely  to  verbal  communications,  but 
to  those  of  any  kind  by  which  information  of  the  character  of  that 
specified  in  the  statute  is  imparted.  Information  of  the  actual  condition 
of  a  patient  may  be  much  more  readily  communicated  to  or  acquired 
by  a  physician  through  a  personal  examination  than  by  statements  of 
the  patient.  In  many  cases  exact  knowledge  can  only  be  obtained  by 
means  of  such  examination,  and  it  is  clear  that  it  is  as  much  to  the 
interest  of  the  patient  to  have  the  information  so  obtained  treated  as 
confidential  as  it  would  be  had  he  known  and  communicated  it  verbal- 
ly. We  conclude  that  the  prohibition  of  section  3643  is  not  confined  to 
verbal  communications,  but  that  it  extends  to  facts  which  are  learned 
by  a  physician  in  the  discharge  of  his  duties,  from  his  own  observation 
and  examination  of  the  patient.  If  the  facts  thus  learned  are  of  a  con- 
fidential character,  and  are  necessary  and  proper  to  enable  the  physician 
to  discharge  his  professional  duty  to  his  client,  they  are  protected.  So 
far  as  the  testimony  given  by  Dr.  Mirick  is  of  that  character,  it  cannot 
be  considered  by  us,  and  the  same  is  true  of  the  testimony  of  Dr. 
Hunter.  The  information  he  received  from  his  associate  was  necessary 
to  enable  him  to  discharge  his  duty  properly,  and  cannot  be  used  for 
any  other  purpose.  It  is  protected  by  the  statute.  When  the  incompe- 
tent testimony  is  rejected,  no  evidence  remains  to  sustain  the  claim 
that  the  death  of  Prader  was  caused  by  chronic  alcoholism.     *     *     * 

Affirmed." 

0  7  In  Chlanda  v.  St.  Louis  Transit  Co.,  213  Mo.  244,  112  S.  W.  249  (1908), 
it  was  held  that  defendant  might  prove  by  plaintiff's  physician  what  he  no- 
ticed as  to  her  physical  condition  during  a  nonprofessional  call. 


Sec.  3)  piuviLEGB  291 


GREEN  V.  METROPOLITAN  ST.  RY.  CO. 

(Court  of  Appeals  of  New  York,  1902.     171  N.  Y.  201,  63  N.  E.  958,  89  Am. 

St.  Kep.  807.) 

Gray,  J.°^  I  think  this  judgment  should  be  reversed,  and  that  a 
new  trial  should  be  had,  for  the  error  in  excluding  the  testimony  of 
the  witness  Moorhead  when  asked  by  defendant's  counsel  to  state 
"what  he  [the  plaintiff]  said,  if  anything,  as  to  how  this  accident  hap- 
pened." Moorhead  was  a  surgeon  attached  to  the  J.  Hood  Wright 
Hospital,  and  was  in  charge  of  the  ambulance  which  was  summoned 
to  convey  the  plaintiff  after  meeting  with  his  accident.  It  will  be  ob- 
served that  the  question  called  for  no  information  which  was  ac- 
quired by  the  surgeon  to  enable  him  to  act  as  such.  It  called  for  evi- 
dence merely  of  what  had  preceded  and  had  caused  the  accident,  ac- 
cording to  the  plaintiff's  knowledge. 

Section  834  of  the  Code  of  Civil  Procedure,  whose  privilege  has  been 
extended  to  cover  this  question,  applies,  by  its  language,  to  cases 
where  information  has  been  acquired  by  a  physician  or  a  surgeon  while 
"attending  a  patient  in  a  professional  capacity,  and  which  was  nec- 
essary to  enable  him  to  act  in  that  capacity."  We  may  readily  admit 
that  Dr.  Moorhead  acquired  the  information  which  the  question  called 
for  while  attending  the  plaintiff  in  a  professional  capacity,  and  still 
we  would  be  far  from  the  point  of  the  legislative  purpose  in  enacting 
the  section  of  the  Code.  That  was  that  the  information  should  be  of  a 
character  necessary  to  enable  Dr.  Moorhead  or  the  hospital  staff  to 
act  professionally  upon  the  case.  As  it  was  observed  in  Edington  v. 
Insurance  Co.,  17  N.  Y.  564,  "it  is  not  sufficient  to  authorize  the  ex- 
clusion that  the  physician  acquired  the  information  while  attending  the 
patient,  but  it  must  be  the  necessary  information  mentioned." 

The  object  of  the  statute,  as  we  are  bound  to  presume,  was  the  ac- 
complishment of  a  just  and  salutary  purpose,  which  was  that  the  re- 
lations between  physician  and  patient  should  be  protected  against  pub- 
lic disclosure,  so  that  the  patient  might  unbosom  himself  freely  to  his 
medical  adviser,  and  thus  receive  the  full  benefit  of  his  professional 
skill.  Surely  it  could  not  have  been  intended  that  any  truthful  version 
of  a  narrative  of  the  events  leading  to  an  accidental  injury  should  be 
excluded,  and  that  was  all  this  question  called  for,  as  it  had  come  from 
the  sufferer's  lips,  and  when  fresh  in  his  recollection.  It  is  rather, 
more  consonant  with  the  requirements  of  justice  that  no  witness  should 
be  prevented  from  giving  such  evidence.  The  burden  was  upon  the ' 
plaintiff,  in  seeking  to  exclude  this  evidence  of  Dr.  Moorhead,  to  bring 
the  case  within  the  provision  of  the  statute  (People  v.  Koerner,  154 
N.  Y.  355,  48  N.  E.  730),  and  he  did  not  do  so.  It  was  proper  to ' 
exclude  testimony  as  to  any  information  acquired  which  was  of  a  na- 

88  Statement  and  the  dissenting  opinion  of  Werner,  J.,  omitted. 


292  WITNESSES  (Ch.  2 

ture  to  enable  a  surgeon  to  treat  the  plaintiff,  but  it  is  unreasonable  to 
say  that  information  of  how  the  accident  happened  was  such  as  must 
or  might  have  affected  the  surgical  treatment  required. 

Surely,  there  must  be  a  line,  which  reason  indicates  as  that  where 
the  statutory  inhibition  ceases.  The  plaintiff  lost  his  leg  by  being  run 
over  by  the  car,  and  the  question  of  defendant's  legal  liability  was  a 
narrow  one,  as  presented  by  the  trial  court,  in  view  of  its  assumption 
that  the  plaintiff  was  guilty  of  contributory  negligence ;  hence  all  the 
light  possible  to  exhibit  how  the  injury  was  occasioned  should  have 
been  permitted  upon  the  case.  It  seems  to  me  that  the  exclusion  of 
this  evidence  was  an  application  of  the  Code  provision  beyond  all 
legitimate  and  reasonable  limits,  and  was  not  in  accord  with  the  recent 
decision  of  this  court  in  Griffiths  v.  Railway  Co.,  171  N.  Y.  106,  63 
N.  E.  808. 

The  judgment  should  be  reversed,  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 


MERLE  et  al.  v.  MORE. 
(Nisi  Prius,  1826.     Ryan  &  M.  390.) 

Assumpsit.  The  act  of  bankruptcy,  relied  on  by  the  plaintiffs,  was 
an  assignment  by  Brookes,  by  deed,  of  all  his  property,  which  it  was 
contended  was  fraudulent.  And  in  order  to  prove  the  circumstances 
under  which  the  deed  was  executed,  the  attorney  of  Brookes,  who 
prepared  the  deed,  was  called,  and  asked  to  a  communication  made  to 
him  by  his  client. 

On  its  being  objected  that  the  communications  spoken  to  were  priv- 
ileged, and  therefore  inadmissible,  Wilde,  Serjt.,  proposed  that  the 
bankrupt,  who  was  present,  should  waive  his  privilege,  and  allow  the 
attorney  to  give  the  evidence. 

Vaughan,  Serjt.,  resisted  this,  and  argued  that  this  would,  in  effect, 
be  making  the  bankrupt  a  witness  to  prove  his  own  bankruptcy,  for 
which  purpose  he  was  by  settled  rule  of  law  incompetent. 

Best,  C.  J.  I  think  the  privilege  is  the  privilege  of  the  client,  and 
he  may  waive  it.  If  the  bankrupt  is  present,  and  consents  to  the  wit- 
ness giving  the  evidence,  I  shall  receive  it. 

This  was  then  done  by  the  bankrupt,  and  the  plaintiffs  obtained 
a  verdict. 


Sec.  3)  PRIVILEGE  293 

MARSTON  V.  DOWNES  et  ux. 

(Court  of  King's  Bench,  1834.     1  Adol.  &  E.  .31.) 

Assumpsit.  Plea,  plene  administravit.  Replication  of  assets  in 
hand.  Is.sue  joined  thereon.  At  the  trial  before  Patteson,  J.,  at  the 
last  Spring  assizes  at  Shrewsbury,  the  plaintiff  proved  a  prima  facie 
case  of  assets  in  the  hands  of  the  defendants.  The  defendants,  in 
answer,  showed  payments  made  by  them  to  the  amount  of  the  assets 
proved.  In  answer  to  this,  the  plaintiff  called  a  witness,  who  was  an 
attorney,  and  who  swore  to  having  paid  to  Downes  the  husband,  after 
the  death  of  the  testator,  a  large  sum  of  money  (not  included  in  the 
assets)  which  had  been  made  on  a  mortgage  made  to  the  client  of  the 
witness.  The  witness  brought  the  mortgage  deed  into  Court,  under  a 
subpcena  duces  tecum,  but  refused  to  produce  it.  He  was  then  ques- 
tioned as  to  its  contents,  upon  which  the  defendant's  counsel  ob- 
jected that  parol  evidence  could  not  be  given  of  the  deed.  The  learned 
Judge  ruled,  that  the  parol  evidence  was  admissible.  Upon  which  the 
witness  himself  asked,  whether  he  ought  to  state  the  contents  of  the 
deed?  His  Lordship  answered,  that  he  thought  he  ought  to  do  so. 
The  witness  then  stated,  that  the  deed  was  a  mortgage  of  some  real 
property  of  the  testator.  The  mortgage  was  executed  by  the  husband 
Downes,  who  was  entitled  to  do  so  by  another  deed,  giving  him  power 
to  raise  money  by  sale  or  mortgage,  and  apply  the  money  so  raised  to 
the  payment  of  the  testator's  debts. '^^ 

Lord  De;nman,  C.  J.,  on  a  subsequent  day  delivered  the  judgment 
of  the  Court.  We  are  of  opinion,  first,  that  the  evidence  was  admis- 
sible for  the  purpose  for  which  it  was  produced ;  and,  secondly,  that, 
whether  or  not  the  privilege  of  the  mortgagee  extended  to  protect 
him  from  the  attorney's  giving  parol  evidence  of  the  contents  of  the 
deed,  still  the  evidence  having  actually  gone  before  the  jury,  the  de- 
fendants were  not  a  privileged  party;  and  they,  therefore,  had  no 
right  of  objection,  even  on  the  supposition  that  the  learned  Judge  had 
done  wrong. 

Rule  refused.®" 

8  9  Statement  condensed. 

8  0  Beardsley,  J.,  in  State  v.  Barrows,  52  Conn,  323  (18S4):  "The  state  also 
claims  that  if  the  court  erred  in  admitting  the  question  referred  to.  it  was 
an  error  which  does  not  entitle  the  accused  to  a  new  trial,  beesiuse  the  right 
of  Mrs.  Eaton  only,  and  not  that  of  the  accused,  was  violated  by  the  evidence 
of  Mr.  Jones.  But  the  rule  which  holds  communications  by  client  to  counsel 
privileged  from  disclosure,  is  one  of  public  policy,  in  the  interests  of  justice, 
and  to  maintain  its  administration.  Goddard  v.  Gardner,  28  Conn.  172  (1859); 
Barnes  v.  Harris,  7  Cush.  (Mass.)  576  [54  Am.  Dec.  734  (1851)].  In  the  case 
of  Bacon  v.  Frisbie,  80  N.  Y.  304  [36  Am.  Bep.  627  (1880)].  in  which  an  at- 
tempt was  made  to  prove  the  statements  of  Ratnour,  a  codefendant  with  Fris- 
bie, by  his  attorney  to  whom  he  made  them,  the  court,  rejecting  the  evidence, 
say  (SO  N.  Y.  401):  'Had  Ratnour  not  been  a  party  to  the  action  and  so  had 
no  right  to  be  at  the  trial  and  object,  yet  the  objection  would  Ho  in  the 
mouth  of  I^isbie,  who  by  it  would  but  call  upon  the  court  to  keep  untouched 


294  WITNESSES  (Ch.  2 

PIERSON  V.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1880.     79  N.  Y.  424,  35  Am.  Rep.  524.) 

Earl,  J.^^  William  Pierson,  the  prisoner,  was  indicted  in  Living- 
ston county  for  murder,  in  causing  the  death  by  poison  of  Leaman  B. 
Withey,  in  February,  1877.  He  was  tried  in  the  Oyer  and  Terminer 
of  that  county  in  February,  1878,  and  was  convicted  and  sentenced  to 
be  hung.  His  conviction  was  affirmed  at  the  General  Term  of  the  Su- 
preme Court.  He  has  now  brought  his  case  into  this  court  by  writ  of 
error,  and  seeks  to  have  his  conviction  reversed  for  several  errors 
which  have  been  ably  presented  for  our  consideration  by  his  coun- 
sel.    *     *     * 

While  Withey  was  sick,  suffering  from  the  poison  which  is  sup- 
posed to  have  been  administered  to  him.  Dr.  Coe,  a  practicing  physi- 
cian, was  called  to  see  him  by  the  prisoner ;  and  he  examined  him  and 
prescribed  for  him.  On  the  trial,  he  was  called  as  a  witness  for  the 
people,  and  this  question  was  put  to  him:  "State  the  condition  in 
which  you  found  him  at  that  time,  both  from  your  own  observation 
and  from  what  he  told  you?"  The  prisoner's  counsel  objected  to  this 
question  on  the  ground  that  the  information  which  the  witness  ob- 
tained was  obtained  as  a  physician,  and  that  he  had  no  right  to  disclose 
it ;  that  the  evidence  offered  was  prohibited  by  the  statute.  The  court 
overruled  the  objection,  and  the  witness  answered,  stating  the  symp- 
toms and  condition  of  Withey,  as  he  found  them  from  an  examination 
then  openly  made  in  the  presence  of  Withey's  wife  and  the  prisoner, 
and  as  he  also  learned  them  from  Withey,  his  wife,  and  the  prisoner. 
There  was  nothing  of  a  confidential  nature  in  any  thing  he  learned  or 
that  was  disclosed  to  him.  The  symptoms  and  condition  were  such  as 
might  be  expected  to  be  present  in  a  case  of  arsenical  poisoning.  It  is 
now  claimed  that  the  court  erred  in  allowing  tliis  evidence,  and  the 
statute  (section  834  of  the  Code)  is  invoked  to  uphold  the  claim.  That 
section  is  as  follows :  "A  person  duly  autliorized  to  practice  physic  or 
surgery  shall  not  be  allowed  to  disclose  any  information  which  he  ac- 
quired in  attending  a  patient  in  a  professional  capacity,  and  which  was 
necessary  to  enable  him  to  act  in  that  capacity."  This  provision  of  the 
Code  is  a  substantial  reenactment  of  a  provision  contained  in  the  Re- 
vised Statutes.  2  R.  S.  406.  Such  evidence  was  not  prohibited  at  com- 
mon law.    The  design  of  the  provision  was  to  place  the  information  of 

a  rule  of  public  policy  made  and  to  be  kept,  not  especially  for  his  good  but  for 
tliat  of  all  men.'  There  was  error  in  the  admission  of  the  evidence  and  a 
new  trial  is  prranted." 

See,  also,  Westovor  v.  Life  Ins.  Co.,  99  ]V.  Y.  56,  1  N.  E.  104,  52  Am.  Rep. 
1  (1885),  reversing  for  the  admission  of  a  physician's  testimony,  under  a  stat- 
ute making  a  physician  incompetent  without  an  express  waiver  by  the  patient, 
though  the  party  to  the  action  who  objected  was  not  the  patient  and  did  not 
represent  him  ;  and  so  in  Myer's  Will,  184  N.  Y.  54,  76  N.  E.  920,  6  Ann.  Cas. 
2G  (1906). 

fli  Part  of  opinion  omitted. 


Sec.  3)  PRIVILEGE  295 

the  physician  obtained  from  his  patient  in  a  professional  way,  substan- 
tially on  the  same  footing  with  the  information  obtained  by  an  attorney 
professionally  of  his  client's  affairs.  The  purpose  was  to  enable  a 
patient  to  make  such  disclosures  to  his  physician  as  to  his  ailments, 
under  the  seal  of  confidence,  as  would  enable  the  physician  intelligently 
to  prescribe  for  him;  to  invite  confidence  between  physician  and  pa- 
tient, and  to  prevent  a  breach  thereof.  Edington  v.  Mut.  L.  Ins.  Co., 
^7  N.  Y.  185  ;  Edington  v.  ^tna  Life  Ins.  Co.,  77  N.  Y.  564. 

There  has  been  considerable  difficulty  in  construing  this  statute,  and 
yet  it  has  not  been  under  consideration  in  many  reported  cases.  It  was 
more  fully  considered  in  the  Edington  case  than  in  any  other  or  all 
others.  It  may  be  so  Hterally  construed  as  to  work  great  mischief,  and 
yet  its  scope  may  be  so  limited  by  the  courts  as  to  subserve  the  bene- 
ficial ends  designed  without  blocking  the  way  of  justice.  It  could  noX\ 
have  been  designed  to  shut  out  such  evidence  as  was  here  received, 
and  thus  to  protect  the  murderer  rather  than  to  shield  the  memory  of 
his  victim.  If  the  construction  of  the  statute  contended  for  by  the 
prisoner's  counsel  must  prevail  it  will  be  extremely  difficult  if  not  im- 
possible in  most  cases  of  murder  by  poisoning  to  convict  the  murderer. 
Undoubtedly  such  evidence  has  been  generally  received  in  this  class  of 
cases,  and  it  has  not  been  understood  among  lawyers  and  judges  to  be 
within  the  prohibition  of  the  statute. 

How  then  must  this  statute  be  construed?  The  office  of  construc- 
tion is  to  get  a  meaning  out  of  the  language  used  if  possible.  If  the 
words  used  are  clear  and  unmistakable  in  their  meaning,  and  their 
force  cannot  be  limited  by  a  consideration  of  the  whole  scope  of  the 
statute  or  the  manifest  purpose  of  the  Legislature,  they  must  have  full 
effect.  But  in  endeavoring  to  understand  the  meaning  of  words  used, 
much  aid  is  received  from  a  consideration  of  the  mischief  to  be  reme- 
died or  object  to  be  gained  by  the  statute.  By  such  consideration 
words  otherwise  far-reaching  in  their  scope  may  be  limited.  Statutes 
are  always  to  be  so  construed  if  they  can  be,  that  they  may  have  rea- 
sonable efifect  agreeably  to  the  intent  of  the  Legislature;  and  it  is  al- 
ways to  be  presumed  that  the  Legislature  has  intended  the  most  rea- 
sonable and  beneficial  construction  of  its  acts.  Such  construction  of  a 
statute  should  be  adopted  as  appears  most  reasonable  and  best  suited 
to  accomplish  the  objects  of  the  statute ;  and  where  any  particular  con- 
struction would  lead  to  an  absurd  consequence,  it  will  be  presumed  that 
some  exception  or  qualification  was  intended  by  the  Legislature  to 
avoid  such  consequence.  A  construction  which  will  be  necessarily  pro- 
ductive of  practical  inconvenience  to  the  community  is  to  be  rejected, 
unless  the  language  of  the  law-giver  is  so  plain  as  not  to  admit  of  a  dif- 
ferent construction.    Potter  Dwarr.  Stat.  202. 

The  plain  purpose  of  this  statute  as  in  substance  before  stated  was 
to  enable  a  patient  to  make  known  his  condition  to  his  physician  with- 
out the  danger  of  any  disclosure  by  him  which  would  annoy  the  feel- 
ings, damage  the  character,   or   impair   the   standing  of  the  patient 


296  WITNESSES  (Ch.  2 

while  living,  or  disgrace  his  memory  when  dead.  It  could  have  no 
other  purpose.  But  we  do  not  tliink  it  expedient  at  this  time  to  en- 
deavor to  lay  down  any  general  rule  applicable  to  all  cases,  limiting  the 
apparent  scope  of  this  statute.  We  are  quite  satisfied  with  the  reason- 
ing upon  it  of  Judge  Talcott  in  his  able  opinion  delivered  at  the  Gen- 
eral Term  of  the  Supreme  Court,  and  we  agree  with  him  "that  the  pur- 
pose for  which  the  aid  of  this  statute  is  invoked,  in  this  case,  is  so 
utterly  foreign  to  the  purposes  and  objects  of  the  act,  and  so  diametri- 
cally opposed  to  any  intention  which  the  Legislature  can  be  supposed  to 
have  had  in  the  enactment,  so  contrary  to  and  inconsistent  with  its  spir- 
it, which  most  clearly  intended  to  protect  the  patient  and  not  to  shield 
one  who  is  charged  with  his  murder,  that  in  such  a  case  the  statute  is 
not  to  be  so  construed  as  to  be  used  as  a  weapon  of  defense  to  the  party 
so  charged,  instead  of  a  protection  to  his  victim."  This  objection  was 
therefore  not  well  taken.     ♦     *     *     Judgment  affirmed.*"^ 


BLACKBURN  v.  CRAWFORD. 
(Supreme  Court  of  the  United  States,  1S65.    3  Wall.  175,  18  L.  Ed.  1S6.) 

Dr.  Crawford,  of  Prince  George's  County,  Maryland,  died  intestate, 
in  December,  1859,  the  proprietor  of  large  landed  estates  there ;  Green- 
wood Park,  Waring's  Grove,  Federal  Hill,  Westphalia,  Ranleigh,  etc. 
He  left  no  wife,  nor  child,  nor  brother  nor  sister  surviving  him. 
Claimants  to  such  estates,  however,  were  not  long  wanting.  On  the 
one  hand  were  relatives  of  the  name  of  Blackburn,  confessedly  his 
cousins-german ;  on  the  other,  persons  bearing  his  own  respectable 
Scottish  name  of  Crawford :  George  Thomas  Crawford,  Mary  Eliza- 
beth Crawford,  Sarah  Jane  Crawford,  and  Anna  Victoria  Crawford, 
the  children  of  a  brother,  Mr.  Thomas  B.  Crawford,  who  had  died  be- 
fore him.  The  title  of  these  children — as  nephews  and  nieces,  and 
nearer  of  course  than  cousins — was  clear,  but  for  a  single  difficulty; 
the  fact  that  their  legitimacy  was  called  in  question.  It  was  asserted 
that  their  mother  had  been  the  mistress  not  the  wife  of  their  father. 

So,  too,  a  solemn  act  of  Mr.  Crawford  himself,  and  his  directions 
when  performing  it,  tended  to  the  conclusion  of  no  marriage.  In  June 
1844,  being  desirous  to  make  his  will,  he  called  on  his  friend  and  gen- 
eral professional  adviser,  Mr.  Bowie,  of  Baltimore,  to  prepare  a  draft 
of  it  for  him.  On  that  occasion,  as  it  appeared  at  a  later  day,  and 
from  Mr,  Bowie's  own  narrative,  he  had  a  conversation  with  that  gen- 
tleman as  to  the  best  mode  of  securing  his  property  to  his  children ; 

02  Compare  People  v.  Murphy,  101  N.  Y.  126,  4  N.  E.  326,  54  Am.  Rop.  G61 
(1886;,  to  flie  effect  tliat,  in  a  pioscfiition  for  prodiK-in?  an  rborlioii,  it  was 
error  to  julmlt  the  testimony  of  a  pliibiclau  who  treated  the  womau  iimue- 
diately  afterwards. 


Sec.  3)  -  PRIVILEGE  297 

asking  Mr.  Bowie's  advice  in  the  matter.  Upon  this,  Mr.  Bowie  ad- 
vised him  to  make  a  will,  and  so  to  provide  for  the  children.  In  ac- 
cordance with  this  advice,  Mr.  Crawford  directed  Mr.  Bowie  to  pre- 
pare the  draft  of  a  will,  which  he  (Mr.  Bowie)  accordingly  then  did, 
agreeably  to  Mr.  Crawford's  instructions.  Mr.  Crawford  especially 
instructed  Mr.  Bowie  to  describe  the  children,  in  this  will,  as  his  natural 
children  by  Elizabeth  Taylor;  and  in  consequence  of  this  express  di- 
rection the  children  were  so  described  in  the  will,  which  was  on 
record  in  the  proper  office  in  Prince  George's  County. 

The  defendant  gave  in  evidence  the  will  of  Mr.  Crawford,  and  prov- 
ed by  Mr.  Bowie  that  it  was  drawn  in  conformity  to  the  instructions 
of  the  testator.  It  spoke,  as  we  have  already  said,  of  the  defendants  in 
error  as  his  natural  children  by  Elizabeth  Taylor,  and  provided  for  them 
accordingly.  It  spoke  of  her  as  probably  enceinte  at  that  time,  and 
provided  for  the  unborn  child..  The  defendant  then  offered  to  prove, 
by  Mr.  Bowie,  what  was  said  by  the  testator  in  their  interviews  pre- 
ceding the  preparation  of  the  will  concerning  the  illegitimacy  of  the 
children  and  his  relation  to  their  mother.  The  court  excluded  the  evi- 
dence.®^ 

Mr.  Justice  Swaynu  delivered  the  opinion  of  the  court. 

We  will  consider  the  exceptions,  so  far  as  we  deem  necessary — 
both  as  respects  the  testimony  and  the  instructions — in  the  order  in 
which  they  are  presented  by  the  record.     *     *     * 

The  'fifth  point  raised  related  to  Mr.  Bowie.  Was  the  testimony  of 
this  gentleman — the  attorney  who  drew  the  will  of  Mr.  Crawford, 
and  by  whom  the  plaintiff  in  error  offered  to  prove  what  was  said  by 
the  testator  in  tlieir  interviews  preceding  the  preparation  of  the  will, 
and,  in  that  connection,  concerning  the  illegitimacy  of  the  children  and 
his  relation  to  their  mother — rightly  excluded? 

It  is  asserted  that  the  communications  upon  these  subjects  to  the  at- 
torney were  covered  by  the  seal  of  professional  confidence,  and  that  he 
could  not,  therefore,  be  permitted  to  disclose  them. 

The  principle  of  privileged  communications  was  ably  considered  by 
Lord  Brougham  in  Greenough  v.  Gaskel,  1  M.  &  K.  98.  He  said: 
"The  foundation  of  the  rule  is  not  difficult  to  discover.  It  is  not  (as 
has  sometimes  been  said)  on  account  of  any  particular  importance 
\yhich  the  law  attributes  to  the  business  of  legal  professors,  or  any  par- 
ticular disposition  to  afford  them  protection,  though  certainly  it  may 
not  be  very  easy  to  discover  why  a  like  privilege  has  been  refused  to 
others,  and  especially  to  medical  advisers.  But  it  is  out  of  regard  to 
the  interests  of  justice,  which  cannot  be  upholden,  and  to  the  adminis- 
tration of  justice,  which  cannot  go  on,  without  the  aid  of  men  skilled 
in  jurisprudence— in  the  practice  of  courts— and  in  those  matters  af- 
fecting the  rights  and  obligations  which  form  the  subject  of  all  judicial 
proceedings.     If  the  privilege  did  not  exist  at  all,  every  one  would 

83  statement  condensed  and  part  of  opinion  omitted. 


298  WITNESSES  (Ch.  2 

be  thrown  upon  his  own  legal  resources.  Deprived  of  all  professional 
assistance,  a  man  would  not  venture  to  consult  any  skillful  person,  or 
would  only  dare  to  tell  the  counsel  half  his  case." 

In  Russel  v.  Jackson,  15  Jurist,  1,  117,  the  contest  was  between  the 
heirs-at-law  and  a  devisee.  The  heirs  claimed  that  the  devise  was 
upon  a  trust,  unexpressed,  because  illegal.  The  question  was,  whether 
the  solicitor  by  whom  the  will  was  drawn  should  be  allowed  to  testify 
what  was  said  by  tlie  testator  contemporaneously  upon  the  subject? 
The  devisee  claimed  the  benefit  of  the  rule.  The  Vice-Chancellor  said : 
"When  we  pass  from  cases  of  conflict  between  the  rights  of  a  client  and 
parties  claiming  under  him — and  those  of  third  persons — ^to  cases  of  a 
testamentary  disposition  of  a  client,  do  the  same  reasons  apply?  The 
disclosure  in  such  cases  can  affect  no  right  or  interest  of  the  client ;  and 
the  apprehension  of  it  can  present  no  impediment  to  a  full  statement 
to  the  solicitor,  unless  he  were  contemplating  an  illegal  disposition — a 
case  to  which  I  shall  presently  refer;  and  the  disclosure  would,  when 
made,  expose  the  court  to  no  greater  difficulty  than  it  has  in  all  cases 
when  the  views  and  intentions  of  parties,  or  the  objects  for  which  the 
disposition  is  made,  are  unknown.  In  the  case,  then,  of  a  testamen- 
tary disposition,  the  very  foundations  on  which  the  rule  proceeds  seem 
to  be  wanting ;  and,  in  the  absence  of  any  illegal  purpose  entertained 
by  the  testator,  there  does  not  seem  to  be  any  ground  for  applying 
the  rule  in  such  a  case.  Can  it  be  said,  then,  that  the  communication 
is  protected  because  it  may  lead  to  the  disclosure  of  an  illegal  purpose? 
I  think  not ;  and  that  evidence,  otherwise  admissible,  cannot  be  re- 
jected upon  such  grounds.  Another  view  of  the  case  is,  that  the  pro- 
tection which  the  rule  gives,  is  the  protection  of  the  client ;  and  it  can- 
not be  said  to  be  for  the  protection  of  the  client  that  evidence  should 
be  rejected — the  effect  of  which  would  be  to  prove  a  trust  created  by 
him,  and  to  destroy  a  claim  to  take  beneficially  by  the  parties  accepting 
the  trust."  «* 

This  reasoning  applied  to  the  declarations  of  the  testator  here  in 
question.  How  can  it  be  said  to  be  for  his  interest  to  exclude  any  tes- 
timony in  support  of  what  he  solemnly  proclaimed  and  put  on  record 
by  his  will  ?  Especially  can  this  be  said  in  regard  to  property  to  which 
he  never  had  or  assumed  to  have  any  title,  and  in  regard  to  a  claim 
by  others  to  that  property,  which  he  did  all  in  his  power,  by  his  will, 
to  foreclose? 

*>♦  And  so  In  a  will  contest  the  privilope  does  not  apply  to  the  attorney 
who  drew  the  will.  Dohorty  v.  O'CallnKhan,  1")7  Mass.  90,  31  N.  E.  72G,  17 
1j.  K.  a.  188,  34  Am.  St.  Kep.  258  (1892).  And  .so  in  the  case  of  the  testator's 
physician  In  will  contests.  Winters  v.  Winters,  102  Iowa,  53.  71  N.  W.  184. 
G.'rAin.  St.  Rep.  428  (isn7):  Thompson  v.  Ish,  99  Mo.  IGO,  12  S.  W.  510,  17 
Am.   St.  Rep.  552  (1889). 

The  contrary  result  was  reached  at  one  time  In  New  York  nndor  a  statute 
making  the  phvslciiin  incompetent  without  an  express  waiver  by  the  i)atient. 
Rcnihan  v.  Dcnnin.  103  N.  Y.  577.  9  N.  E.  320,  57  Am.  Rep.  770  (1880);  la  re 
Coleman,  111  N.  Y.  220,  10  N.  E.  71  (1888). 


Sec.  3)  PRIVILEGE  299 

But  there  Is  another  ground  on  which  we  prefer  to  place  our  decision. 
The  cHent  may  waive  the  protection  of  the  rule.  The  waiver  may  be 
express  or  implied.  We  think  it  as  effectual  here  by  implication  as 
the  most  explicit  language  could  have  made  it.  It  could  have  been  no 
clearer  if  the  client  had  expressly  enjoined  it  upon  the  attorney  to  give 
this  testimony  whenever  tlie  truth  of  his  testamentary  declaration 
should  be  challenged  by  any  of  those  to  whom  it  related.  A  different 
result  would  involve  a  perversion  of  the  rule,  inconsistent  with  its  ob- 
ject, and  in  direct  conflict  with  tlie  reasons  upon  which  it  is  found- 
ed.    *     *     * 

Judgment  reversed. 


HUNT  V.  BLACKBURN. 

(Supreme  Court  of  the  United  States,  1888.     128  U.  S.  464,  9  Sup.  Ct.  125, 

32  L.  Ed.  488.) 

Hunt  filed  his  bill  in  equity  in  the  district  court  for  the  Eastern  dis- 
trict of  Arkansas,  on  the  25th  of  June,  1881,  against  Sallie  S.  Black- 
burn, Charles  B.  Blackburn,  and  W.  P.  Smith,  claiming  as  a  pur- 
chaser for  value,  with  the  knowledge  and  assent  of  Sallie  S.  Black- 
burn, of  an  undivided  half  of  a  plantation  in  Desha  county.  Ark.,  of 
which  the  defendant  Sallie  S.  Blackburn  owned  the  other  half,  and 
deraigning  title  by  sundry  mesne  conveyances  from  one  Shepard  to  W. 
A.  Buck,  whose  wife  said  Sallie  S.  then  was,  by  Buck  and  wife  to 
Drake,  Drake  to  Winfrey,  who,  as  Hunt  alleged,  purchased  for  value 
with  Mrs.  Buck's  knowledge  and  assent,  Winfrey's  assignee  to 
Weatherf ord,  and  Weatherf ord  to  himself ;  setting  up  certain  decrees 
hereinafter  mentioned,  and  praying,  after  averments  appropriate  to 
such  relief,  that  his  title  be  quieted,  and  for  partition.  Defendant 
SalHe  S.  Blackburn  answered  April  25,  1883,  asserting  sole  ownership 
of  the  lands  under  a  deed  from  Shepard  to  W.  A.  Buck,  her  then  hus- 
band, and  herself,  and  charging,  in  respect  to  the  decrees  upon  the  ti- 
tle, that  she  was  misled  by  her  attorney  and  confidential  adviser, 
Weatherford,  as  to  her  rights,  and  was  not  estopped  thereby  or  by 
any  conduct  of  hers,  in  faith  of  which  either  Winfrey  or  Hunt  acted 
in  purchasing.  The  cause  was  heard  and  the  bill  dismissed  March  10, 
1884,  and  from  that  decree  this  appeal  is  prosecuted. ^'^ 

Mr.  Chief  Justice  Fuller.  *  *  *  Defendant  Blackburn  insists, 
however,  in  her  answer,  that  the  part  she  took  in  the  litigation  of  these 
two  cases  was  the  result  of  misplaced  confidence  in  her  counsel,  by 
whom  she  alleges  she  was  deceived,  misadvised,  and  misled ;  that 
she  was  ignorant  of  her  rights ;  and  that  she  ought  not  to  be  held  es- 
topped in  the  premises;  while  at  the  same  time  it  is  objected  on  her 
behalf  that  her  attorney,  on  the  ground  of  privileged  communications, 

66  Statement  condensed  and  part  of  opinion  omitted. 


300  WITNESSES  (Ch.  2 

should  not  be  permitted  to  defend  himself  by  testifying  to  the  facts 
and  circumstances  under  which  he  advised  her,  and  the  advice  which 
he  actually  gave. 

The  rule  which  places  the  seal  of  secrecy  upon  communications  be- 
tween client  and  attorney  is  founded  upon  the  necessity,  in  the  interest 
and  administration  of  justice,  of  the  aid  of  persons  having  knowledge 
of  the  law  and  skilled  in  its  practice,  which  assistance  can  only  be 
safely  and  readily  availed  of  when  free  from  the  consequences  or  the 
apprehension  of  disclosure.  But  the  privilege  is  that  of  the  client 
alone,  and  no  rule  prohibits  the  latter  from  divulging  his  own  secrets. 
And  if  the  client  has  voluntarily  waived  the  privilege,  it  cannot  be 
insisted  on  to  close  the  mouth  of  the  attorney.  When  IMrs.  Black- 
burn entered  upon  a  line  of  defense  which  involved  what  transpired 
between  herself  and  Mr.  Weatherford,  and  respecting  which  she  tes- 
tified, she  waived  her  right  to  object  to  his  giving  his  own  account  of 
the  matter.  As,  for  instance,  when  she  says  that  the  original  deed 
from  Shepard  was  drawn  by  Weatherford,  that  she  has  not  got  it,  and 
that  she  thinks  she  gave  it  to  him,  it  is  clear  that  her  letter  of  July  6, 
1875,  calling  for  that  deed,  and  Weatherford's  reply  of  July  14th,  in- 
closing it,  are  admissible  in  evidence.  *  *  * 
Reversed. °^ 

6  6  For  a  similar  rule  in  the  case  of  a  physician,  see  Epstein  v.  Pennsyl- 
vania R.  Co.,  250  Mo.  1,  15G  S.  W.  699,  48  L.  R.  A.  (N.  S.)  394,  Ann.  Cas. 
1915A,  423  (1913),  where  a  large  number  of  cases  are  reviewed. 

I  But  the  patient  does  not  waive  the  privilege  as  to  his  physician  by  intro- 
ducing other  evidence  of  his  injuries,  etc.     Arizona  &  N.  M.  R.  Co.  v.  Clark, 

J  235  U.  S.  6G9,  35  Sup.  Ct.  210,  59  L.  Ed.  415,  L.  R.  A.  1915C,  834  (1915). 

I      In  an  action  against  a  physician  for  malpractice,  there  is  a  waiver  as  to 

1  all  the  phv.^icians  who  treated  the  plaintiff.    Capron  v.  Douglass,  193  N.  Y. 

'  11,  85  N.  E.  827,  20  L.  R.  A.  (N.  S.)  1003  (1908). 


Sec.  4)  EXAMINATION   OF   WITNESSES  801 

SECTION  4.— EXAMINATION  OF  WITNESSES 
I.  Offers  of  Evidence  and  Objections  *' 


TURNER  et  al.  v.  PEARTE. 

(Court  of  King's  Bench,  17S7.     1  Durn.  &  E.  717.) 

On  a  rule  nisi  for  a  new  trial  on  affidavits  to  the  effect  that  it  had 
been  discovered  that  five  of  the  witnesses  for  the  defendant  were  in- 
competent because  of  interest.''^ 

BuLLER,  J.  There  has  been  no  instance  of  this  court's  granting  a 
new  trial  on  an  allegation  that  some  of  the  witnesses  examined  were  in- 
terested ;  and  I  should  be  very  sorry  to  make  the  first  precedent.    An- 

6  7  As  to  the  order  in  which  evidence  shall  be  offered,  see  Braydon  v.  Goul- 
man,  1  T.  B.  Mon.  (Ky.)  115  (1824),  in  which  the  following  rules  were  stated 
by  Mills,  J.: 

"(1)  As  to  the  admission  of  new  witnesses  after  the  parties  professed  to 
have  gone  through  their  evidence,  it  may  be  readily  conceded,  that  it  was 
against  the  strict  practice  which  ought  generally  to  be  adhered  to  in  con- 
ducting causes. 

"He  who  has  the  affirmative,  ought  to  introduce  all  his  evidence  to  make 
out  his  side  of  the  issue,  then  the  evidence  of  the  negative  side  is  heard,  and 
finally  the  rebutting  proof  of  the  affirmative,  which  closes  the  investigation, 
after  giving  each  a  fair  opportunity  to  be  thus  heard.  In  doing  this,  neither 
side  ought  to  be  permitted  to  give  evidence  by  piecemeal,  then  to  apply  for 
instructions,  and  again  to  mend  and  add  to  his  proof,  until,  by  repeated  ex- 
periments, he  shall  make  it  come  up  to  the  opinion  of  the  court. 

"An  adherence  to  these  rules  generally  will  be  found  necessary  in  all  courts 
of  original  jurisdiction,  and  without  them  confusion,  loss  of  time,  and  cap- 
tious and  irritable  conduct  must  follow. 

"(2)  We  say,  generally,  for  it  will  often  be  found  necessary  and  proper 
for  the  presiding  court,  for  good  reasons,  to  depart  from  them,  to  attain 
complete  justice;  and  when  they  ought  or  ought  not  to  be  varied,  must,  in  a 
great  measure,  be  left  to  the  sound  discretion  and  prudence  of  the  inferior 
court.  And  this  court  for  such  departure,  ought  never  to  interfere,  except 
injustice  is  done  by  that  departure. 

"(3)  The  evidence  admitted  in  this  instance  was  pertinent.  It  is  not  ob-: 
jected  to,  because  from  its  nature  it  ought  not  to  be  heard;  but  because  it 
was  heard  at  an  improper  time.  In  such  a  case,  we  ought  not,  and  cannot, 
give  any  redress.  We  ought  not,  because  the  evidence  has  not  done  injustice, 
and  that  court  had  the  disposition  of  its  own  time,  and  might  or  might  not 
hear  it,  as  time  and  other  good  reasons  might  require.  We  cannot,  because 
if  we  were  to  reverse  on  that  account,  it  would  only  open  the  way  to  admit 
the  same  evidence  in  a  time  and  manner  which  could  not  be  objected  to,  and 
the  party  who  now  complains  has  received  no  injury  which  ought  to  be  re- 
dressed, and  he  would  again  have  to  submit  to  the  same  evidence." 

In  will  contests,  however,  the  practice  in  a  number  of  states  permits  the 
proponent,  after  making  out  a  prima  facie  case  by  the  attesting  witnesses,,  to 
reserve  the  balance  of  his  evidence  of  capacity  until  after  the  contestant's 
evidence  has  been  introduced.  Hall  v.  Hall,  1.53  Ky.  379,  155  S.  W.  755  (191.3) ; 
Taff  V.  Hosmer,  14  Mich.  .309  (1866)  good  explanation  by  Cooley,  J.;  Lareau 

68  Statement  condensed  and  concurring  opinion  of  Ashhurst,  J.,  omitted. 


302  WITNESSES  (Ch.  2 

ciently  no  doubt  the  rule  was,  that  if  there  were  any  objection  to  the 
competency  of  the  witness,  he  should  be  examined  on  the  voir  dire ; 
and  it  was  too  late  after  he  was  sworn  in  chief.  In  later  times,  that 
rule  has  been  a  little  relaxed ;  but  the  reason  of  doing  so  must  be  re- 
membered. It  is  not  that  the  rule  is  done  away,  or  that  it  lets  in  ob- 
jections which  would  otherwise  have  been  shut  out.  It  has  been  done 
principally  for  the  convenience  of  the  court,  and  it  is  for  the  further- 
ance of  justice.  The  examination  of  a  witness,  to  discover  whether 
he  is  interested  or  not,  is  frequently  to  the  same  effect  as  his  examina- 
tion in  chief :  So  that  it  saves  time,  and  is  more  convenient,  to  let  him 
be  sworn  in  chief  in  the  first  instance ;  and  in  case  it  should  turn  out 
that  he  is  interested,  it  is  then  time  enough  to  take  the  objection.  But 
there  never  yet  has  been  a  case  in  which  the  party  has  been  permitted 
after  trial  to  avail  himself  of  any  objection,  which  was  not  made  at 
the  time  of  the  examination.  But  in  the  present  case  there  is  not  the 
least  foundation  for  this  court  to  interpose ;  for  it  cannot  be  said  that 
the  witnesses  were  swayed  by  this  interest  in  the  least  degree.  I  do 
not  say  that  it  might  not  have  been  a  ground  to  object  to  their  testi- 
mony on  the  trial,  supposing  the  whole  of  what  was  suggested  by  the 
plaintiff  was  true :  but  it  would  have  been  necessary  to  have  determined 
another  question  first,  whether  the  houses  in  respect  of  which  the  wit- 
nesses are  supposed  to  be  interested  were  really  houses  formerly  be- 
longing to  the  knights  of  St.  John  of  Jerusalem,  before  any  decision 
could  have  been  made  on  their  competency ;  but  at  any  rate  we  will  not 
permit  them  to  make  the  objection  now.  Where  it  appears  that  one 
or  more  material  witnesses  who  were  examined  on  a  trial  were  inter- 
ested, it  may  afterwards  weigh  with  the  court  as  a  circumstance  for 
granting  a  new  trial,  provided  the  merits  of  the  case  are  doubtful;  but 
as  a  substantive  objection,  I  am  clearly  of  opinion  that  it  ought  not 
to  be  allowed. 

Grose,  J.  As  to  the  competency  of  the  witnesses,  it  is  not  con- 
tended that  in  point  of  law  we  are  bound  to  reject  their  testimony  now. 
This  then  is  an  apphcation  to  our  discretion;  and  the  question  is, 
Whether  that  should  induce  us  to  reject  their  evidence  after  verdict. 
If  this  objection  had  been  made  before  me  at  the  trial,  perhaps  I  might 
have  admitted  it ;  but  then,  by  the  rule  of  law,  objections  of  this  nature 
must  be  made  at  the  trial.  And  if  the  plaintiff  will  insist  upon  the  strict 
rule  relative  to  the  incompetency  of  witnesses,  the  defendant  has  an 
equal  right  to  avail  himself  of  the  rule  that  the  objection  now  comes  too 
late.  Formerly  the  rule  was  to  examine  on  the  voir  dire;  that  indeed 
has  been  relaxed.     But  this  application  requires  us  to  go  farther;  and 

V.  Lareau  (Mo.)  208  S.  W.  241  (1918) ;  In  re  Gedney's  Will  (Sur.)  142  N.  Y. 
Supp.  157  (1913).  But  see  Craig  v.  Southard,  148  111.  37,  35  N.  E.  361  (1S93), 
contra. 

If  a  plaintiff  attempts  to  anticipate  and  negative  a  defense,  he  cannot  as  a 
matter  of  ri^'ht  introduce  additional  ovidcnce  on  the  same  i)olnt  at  a  later 
state  of  the  trial.     Ilolitrook  v.  McBride,  4  (iray  (Mass.)  215  (1.S55). 


Sec.  4)  EXAMINATION  OP   WITNESSES  303 

the  affidavit  states  no  sufficient  grounds  in  support  of  it.  In  the  first 
place,  it  does  not  clearly  appear  that  the  plaintiffs  did  not  know  of  the 
objection  at  the  time  of  the  trial.  It  is  sworn  very  loosely;  and  if 
they  knew  of  it  at  that  time,  that  would  be  a  decisive  reason  for  refus- 
ing to  allow  it  now.  However,  although  no  new  trial  has  ever  been 
granted  on  such  an  objection,  I  do  not  know  but  that,  if  a  proper  affi- 
davit were  made,  it  might  have  some  influence  on  my  mind,  where  the 
party  applying  has  merits ;  but  here  die  weight  of  the  evidence  is  in 
favour  of  the  verdict. 
Rule  discharged."" 


GOODTITLE  et  al.  v.  WELFORD. 
(Court  of  King's  Bench,  1779.     1  Doug.  139.) 

Rule  nisi  for  a  new  trial  on  the  ground  of  the  incompetency  of  a 
witness  because  of  interest.^" 

Lord  Mansfield.  This  will  has  been  tried  three  or  four  times; 
and  there  have  been  contradictory  verdicts.  On  the  trial,  in  the  pres- 
ent instance,  the  jury  were  satisfied.  But  a  motion  has  been  made 
for  a  new  trial,  not  on  the  merits,  but  on  the  incompetency  of  a  wit- 
ness. When  the  witness  was  produced,  the  counsel  for  the  plaintiff 
read  his  surrender  of  the  copyhold  estate  left  to  him  by  the  will,  but 
it  was  objected,  that  this  surrender  had  not  been  accepted.  The  wit- 
ness, on  being  questioned,  said  he  had  acted  as  executor,  and  that  the 
legatees  had  received  their  legacies  under  the  will.  On  this  ground 
also,  it  was  contended,  that  he  was  interested,  because,  if  the  will 
should  be  set  aside,  he  would  be  answerable  for  having  acted  de  son 
tort.  But  he  was  not  objected  to,  at  the  trial,  as  being  entitled  to  the 
residue  of  the  personal  estate.  Now,  on  such  a  motion  as  the  present, 
no  objection  to  a  witness  should  be  received  which  was  not  made  at 
the  trial.  If  this  new  objection  had  been  made  then,  it  might  per- 
haps have  been  shewn,  that  there  was  no  residue,  or  a  release  might 
have  been  given,  &c.  As  to  the  other  objections.  1.  The  bequest  to 
the  witness  would  certainly  have  gone  to  his  competency,  if  he  had 
not  parted  with  his  interest ;  but,  as  he  has  parted  with  it,  as  far  as 
depends  upon  him,  third  persons  have  a  right  to  his  testimony,  and  the 
surrenderee  shall  not  deprive  them  of  it,  by  refusing  to  accept  the 
surrender.  2.  It  is  contended,  that,  in  an  action  concerning  land,  an 
executor  is  not  a  competent  witness,  because  he  may  be  sued  for  his 
administration  of  the  personalty.     But  he  certainly  has  no  immediate 

«9  Obviously  the  question  of  the  competency  of  witnesses,  or  of  the  admissi- 
bility of  evidence,  could  not  be  reviewed  on  writ  of  error  unless  a  proper  ex- 
ception had  been  taken  in  the  court  below,  and  had  been  preserved  by  bill 
of  exceptions.     Bains  v.  Railway,  3  H.  L.  C.  1  (1S50). 

70  Statement  condensed  and  concurring  opinions  of  Willes  and  Ashhurst, 
JJ.,  omitted. 


304  WITNESSES  (Ch.  2 

interest  in  the  action ;    and  I  remember  its  being  determined  by  Lord 
Hardwicke,  on  a  petition  for  a  commission  of  review,  and  afterwards 
by  the  delegates,  that  it  is  no  objection  to  an  executor's  testimony,  that 
he  may  be  hable  to  actions  as  executor  de  son  tort. 
The  rule  dischargedJ^ 


QUIN  V.  LLOYD. 
(Court  of  Appeals  of  New  York,  1SG9.     41  N.  Y.  349.) 

This  action  was  brought  to  recover  for  work,  labor,  and  services 
done  and  performed  by  the  intestate  going  to  England,  services  there, 
and  returning,  for  the  defendant,  on  account  of  which  the  balance 
alleged  to  be  due  was  $333.07,  in  gold  coin,  and  also  for  the  sum  of 
$296.31,  alleged  to  be  the  further  indebtedness  of  the  defendant  to  the 
intestate  for  services  rendered  in  New  York. 

The  answer  was  a  general  denial. 

The  action  was  tried  before  a  referee,  and  in  the  progress  of  the 
trial  the  defendant  was  sworn  as  a  witness  in  his  own  behalf,  and  tes- 
tified without  objection  to  the  time  when  the  intestate  commenced 
working  for  him,  the  fact  of  his  going  to  England,  and  in  what  capac- 
ity, the  time  of  his  remaining  there,  and  of  his  return,  to  the  fact  of 
payments  by  the  defendant,  and  the  rate  of  his  wages  in  New  York 
as  draughtsman  part  of  the  time  and  as  foreman  after  Culver  left, 
and  the  time  when  Culver  left,  and  the  direct  examination  of  the  wit- 
ness was  closed.  At  the  next  meeting  of  the  parties  before  the  referee 
on  a  subsequent  day,  the  plaintiff's  counsel  moved  that  the  testimony  of 
the  defendant,  Lloyd,  be  struck  out,  on  the  ground  that  under  section 
399  of  the  Code  of  Procedure  "the  defendant  was  an  incompetent 
witness,"  and  the  motion  was  granted  and  defendant  excepted. 

The  referee  reported  for  the  plaintiff,  and  from  the  judgment  as 
modified  in  the  General  Term  of  the  Superior  Court  of  the  city  of 
New  York,  the  defendant  appealed  to  this  court.^^ 

7iTlie  rule  i.s  the  same  where  the  objection  goes  to  the  admissibility  of 
the  eviflence,  instead  of  the  competency  of  the  witness.  Williams  v.  Wilcox. 
8  Ad.  &  Kllis,  314  (1838).  See,  also,  elaborate  opinion  to  the  same  effect  In 
Bain  v.  Railway,  3  H.  L.  C.  1  (1850),  on  a  l»ill  of  exceptions,  in  which  It 
was  said  by  Lord  Brouglian):  "See  the  consoi|vience  of  not  taking  tlie  objec- 
tion in  the  proper  form  ;  and  see  how  Impossililo  it  is  for  us  to  overleap  the 
bounds  by  wlil<Ii,  in  deciding  on  the  ndmissiltility  of  such  evidence,  we  are 
limited.  If  we  were  to  act  on  this  objection  now,  It  might  be  answered: 
'If  this  objection  iiad  been  taken  below,  instead  of  tlie  objf^ction  being  confliied 
to  the  ground  of  surjirise,  non  constat  that  the  court  would  have  allowed  the 
evidence,  and  tlien  tliere  would  not  have  l)eeii  any  ground  of  exception;  or, 
non  constat  that  the  respondents  would  not  have  withdrawn  the  witness,  and 
then  there  would  not  have  been  any  ground  of  exception;  or,  non  'constat 
tliat  th'-y  would  not  have  proved  tlieir  point  in  anotlier  and  an  \uiexception- 
ablc  way."' 

7a  Statement  condensed  and  r>art  of  opinion  of  Woodruff,  J.,  and  opinion  of 
Lott,  J.I.,  on  anotlier  i)olnt  omitted. 


Sec.  4)  EXAMINATION  OF  WITNESSES  305 

Woodruff,  J.  *  *  *  The  referee  also  erred  in  striking  out  the 
testimony  of  the  defendant,  not  only  because  as  to  some  of  the  facts  to 
which  he  testified  they  did  not  appear  to  have  formed  part  of  transac- 
tions or  conversations  had  by  him  personally  with  the  deceased,  but 
also  for  another  reason,  which  was  fatal  to  the  motion. 

The  defendant  was  sworn  and  examined  without  objection.  Certain 
questions  put  to  him  were  excluded,  but  none  of  the  testimony  which 
he  gave  was  objected  to,  and  his  direct  examination  was  closed,  and 
the  reference  was  adjourned  to  a  future  day.  There  is  no  pretense  of 
any  surprise  or  misapprehension  of  the  fact  that  the  witness  called 
and  sworn  was  the  defendant.  Any  and  every  objection  which  could 
be  taken  to  his  testifying  or  to  his  testimony,  was  apparent  on  the  face 
of  the  proceedings ;  and  yet  at  a  subsequent  hearing  the  referee  struck 
out  the  testimony  on  the  alleged  ground  that  the  defendant  was  in- 
competent to  testify.  This  will  not  do.  A  party  against  whom  a 
witness  is  called  and  examined  cannot  lie  by  and  speculate  on  the 
chances,  first  learn  what  the  witness  testifies,  and  then  when  he  finds 
,the  testimony  unsatisfactory,  object  either  to  the  competency  of  the 
witness,  or  to  the  form  or  substance  of  the  testimony. 

It  is  not  the  case,  which  sometimes  occurs,  where  on  cross-examina- 
tion, or  in  a  subsequent  stage  of  the  trial,  the  incompetency  of  evi- 
dence appears,  though  apparently  competent  when  given;  e.  g.,  oral 
proof  of  an  agreement,  which  on  cross-examination  appears  to  have 
been  in  writing,  or  proof  of  parol  negotiations,  etc.,  where  it  after- 
wards appears  that  the  oral  treaty  was,  are  afterwards  embodied  in  a 
written  covenant  or  agreement,  and  like  cases. 

The  counsel  may  have  been  careless  in  permitting  testimony  to  be 
given  without  objection,  which  perhaps  would  have  been  excluded  if 
objected  to;  but  this  will  not  authorize  the  referee  to  strike"  it  out 
after  it  has  been  received.  This  is  a  rule  especially  important,  since 
parties  are  permitted  to  testify.  The  utmost  fairness  should  be  ob- 
served in  the  conduct  of  their  examination,  and  if  the  adverse  party  de- 
sires to  object  to  transactions  with  a  deceased,  he  must  do  so  in  sea- 
son, and  not  wait  till  he  learns  what  they  are,  and  then,  if  they  bear 
unfavorably  on  his  case,  strike  them  out. 

On  these  grounds  the  judgment  must  be  reversed.    All  concur. 

Judgment  reversed. ''* 

78  A  motion  to  strike  out  testimony  is  proper,  wliere  the  witness  answers 
before  an  objection  could  be  made.  Barkly  v.  Copeland,  86  Cal.  483,  25  Pac. 
1,  40.5  (1890) ;  Bigelow  v.  Sickles,  80  Wis.  98,  49  N.  W.  106,  27  Am.  St  Rep. 
25  (1891). 

Or  where  an  improper  answer  is  given  to  a  proper  question.  State  v. 
Sykes.  191  Mo.  62.  89  S.  W.  Sol  (1905);  Platner  v.  Platner,  78  N.  Y.  90  (1879^ 
Holmes  v.  Roper,  141  N.  Y.  64,  36  N.  E.  180  (1894). 

Or  where  a  witness  volunteers  an  improper  statement  Greenup  v.  Stoker, 
7  111.  (2  Oilman)  688  (1845). 

T 4  Accord:  Levin  v.  Russell,  42  N.  Y.  251  (1870);  Chicago  Title  &  Trust 
Co.  v.  Sagola  Lumber  Co.,  242  111.  468,  90  N.  E.  282  (1909)  ;   Hickman  v.  Green, 

HiNT.Ev.— 20 


306  WITNESSES  (Ch,  2 


BOSTON  &  A.  R.  CO.  v.  O'REILLY. 

(Supreme  Court  of  the  United  States,  1S95.     158  U.  S.  334,  15  Sup.  Ct.  830. 

39  L.  Ed.  1006.^ 

Mr.  Justice  Shiras  '''  delivered  the  opinion  of  the  court. 

The  first  three  specifications  of  error  complain  of  the  action  of  the 
court  in  permitting  the  plaintiff,  O'Reilly,  to  testify  as  to  what  he  had 
made  out  of  his  business  for  several  years  before  the  accident,  and  to 
give  an  estimate  of  how  much  he  made  annually  by  his  own  individual 
exertions ;  and  also,  in  view  of  the  fact  that  he  had  sold  the  business, 
good  will,  and  everything  connected  with  the  business  before  the  acci- 
dent occurred,  to  testify  that,  when  he  so  sold  out,  he  did  it  with  the 
intention  of  continuing  the  business. 

The  first  objection  urged  to  the  admission  of  this  evidence  is  that  it 
went  to  show  special  damage  caused  to  the  plaintiff  by  the  loss  and 
interruption  of  his  business,  whereas  there  were  no  allegations  of  such 
special  damage  contained  in  the  declaration.  It  does  not  appear,  how- 
ever, that  objection  was  specifically  made  to  the  evidence  on  the  ground 
that  the  declaration  contained  no  allegations  of  the  special  damage 
sought  to  be  shown;  and  it  is  perfectly  well  settled  in  this  court  that 
where  a  case  has  gone  to  a  hearing,  testimony  been  admitted  to  a  jury 
under  objection,  but  without  stating  any  reasons  for  the  objection, 
and  a  verdict  rendered,  with  judgment  on  the  verdict,  the  losing  party 
cannot,  in  the  appellate  court,  state  for  the  first  time  a  reason  for  that 
objection  which  would  make  it  good.  Roberts  v.  Graham,  6  Wall,  578, 
18  L.  Ed.  791 ;  Patrick  v.  Graham,  132  U.  S.  627,  10  Sup.  Ct.  194, 
33  L.  Ed.  460. 

Objections  were  made  in  the  present  case  to  the  admission  of  the 
evidence  in  question,  but  such  objections  did  not,  in  our  judgment, 

123  Mo.  1G5.  22  S.  W.  455,  27  S.  W.  440,  29  L.  R.  A.  39  (1S94) ;  Pillo,\v  v. 
Southwest  Imp.  Co.,  92  Va.  144,  23  S.  E.  32,  .53  Am.  St.  Rep.  804  (1895) ;  Ben- 
son V.  U.  S..  146  U.  S.  325,  13  Sup.  Ct.  (50,  36  L.  Ed.  991  (1893). 

Apparently  the  English  courts  sanction  the  practice  of  making  the  objec- 
tion to  the  competency  of  a  witness  at  any  time  during  his  examination. 
Lord  Abinger,  in  Jacobs  v.  Laylx)rn,  11  M.  &  W.  685  (1843):  "So,  in  any  other 
case,  I  do  not  see  why  counsel  should  be  restricted  from  inquiring  at  any  mo- 
ment into  the  witness'  competency,  and,  if  they  see  that  he  is  swearing 
falsely,  excluding  his  testimony  if  they  can.  A  counsel  who  knows  of  an 
objection  to  the  competency  of  a  witness  may  very-  fairly  say,  'I  will  lie  by, 
and  see  whether  he  will  speak  the  truth;  if  he  does  not,  I  will  exclude  his 
evidence.'  I  see  no  hardship  or  injustice  at  all  in  that  course.  In  short,  there 
is  ample  authority  to  show  that  the  ancient,  if  not  universal,  practise  has  been 
to  allow  objections  of  this  kind  to  be  taken  as  was  done  in  this  case." 

In  that  case  the  objection  came  after  the  witness  had  answered  a  number  of 
qiiestions  in  chief. 

In  the  case  of  inadmissible  evidence  the  rule  is  well  settled  that  the  ob- 
jection must  be  made  at  the  time.    Wright  v.  Littler,  3  Burrow,  1244  (1761). 

If  an  objection  to  the  competency  of  a  witness  is  made  and  overruled,  it  is 
not  waived  bv  a  i»ropor  cro.ss-examination.  McCune  v.  doodwillie,  204  Mo. 
306,  102  S.  W'.  997  (1907). 

75  Statement  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION   OF  WITNESSES  307 

apprise  the  court  of  the  specific  ground  of  objection  now  urged,  and 
hence  did  not  afford  an  opportunity  of  permitting  an  amendment  of  the 
declaration,  upon  such  terms  as  the  interests  of  justice  might  seem  to 
require. 

If,  then,  this  were  the  only  ground  on  which  we  were  asked  to  pro- 
ceed in  disposing  of  these  assignments  of  errors,  we  should  not  feel 
disposed  to  disturb  the  judgment.     *     *     * 

Judgment  reversed  (on  other  grounds).'^" 

7  6  And  so  where  a  general  objection  is  made  to  a  doniment. 

Field,  J.,  in  Noonan  v.  Caledonia  Gold  Mining  Co.,  121  U.  S.  393,  7  Sap. 
Ct.  911,  30  L.  Ed.  1061  (18S7):  "2.  The  objection  to  the  introduction  of  the 
articles  of  incorporation  at  the  trial  was  that  they  were  'immaterial,  irrele- 
vant, and  incompetent'  evidence.  The  specific  objection  now  urged,  that  they 
were  not  sufficiently  authenticated  to  be  admitted  in  evidence,  and  that  the 
certificates  were  made  by  deputy  officers,  is  one  which  the  general  objection 
does  not  include.  Had  it  been  taken  at  the  trial  and  deemed  tenable,  it  might 
have  been  obviated  by  other  proof  of  the  corporate  existence  of  the  plaintiff 
or  by  new  certificates  to  the  articles  of  incorporation.  The  rule  is  universal, 
that  where  an  objection  is  so  general  as  not  to  indicate  the  specific  grounds 
upon  which  it  is  made,  it  is  unavailing  on  appeal,  unless  it  be  of  such  a  char- 
acter that  it  could  not  have  been  obviated  at  the  trial.  The  authorities  on 
this  point  are  all  one  way.  Objections  to  the  admission  of  evidence  must  be 
of  such  a  specific  character  as  to  indicate  distinctly  the  grounds  upon  which 
the  party  relies,  so  as  to  give  the  other  side  full  opportunity  to  obviate  them 
at  the  time,  if  under  any  circumstances  that  can  be  done.  United  States  v. 
McMasters,  4  Wall.  680  [18  L.  Ed.  311  (1866)]  Burton  v.  Driggs,  20  Wall.  12.5 
[22  L.  Ed.  299  (1873)];  Wood  v.  Weimar,  104  U.  S.  786,-  795  [26  L.  Ed.  779 
(1881)]." 

The  words  "incompetent,  irrelevant  and  immaterial"  were  defined  in  Stoner 
v.  Royar,  200  Mo.  444,  98  S.  W.  601  (1906),  as  follows:  "We  have  said  that 
the  patent  and  deeds  of  defendant  were  introduced  in  evidence  without  ob- 
jection, by  which  we  do  not  mean  that  we  have  overlooked  the  objection  in 
the  general  words  'incompetent,  irrelevant  and  immaterial.'  An  objection  to 
evidenc-e  that  it  is  irrelevant  is  sufficiently  specific;  it  means  that  it  does  not 
bear  on  any  issue  in  the  case,  and  'immaterial'  means  nearly  the  same.  It 
cannot  be  said  of  these  documents  that  they  were  irrelevant,  because  they 
were  the  defendant's  title  to  the  land  to  which  he  claimed  that  the  land  in 
suit  was  an  accretion,  just  as  plaintiff's  documentary  evidence  which  did  not 
call  for  this  land,  but  did  call  for  land  to  which  the  plaintiff  claimed  this 
land  was  an  accretion.  But  an  objection  on  the  ground  that  the  evidence  of- 
fered is  incompetent  without  a  specification  in  what  respect  it  is  believed  to 
be  so  is  really  no  objection  at  all." 

For  cases  where  such  an  objection  was  held  sufficient  to  raise  the  question 
on  the  theory  that  the  reason  was  obvious  and  could  not  have  been  cured, 
see  Bailey  v.  Kansas  City,  1S9  Mo.  503,  87  S.  W.  1182  (1905) ;  Groh's  Sons  v. 
Groh,  177  N.  Y.  8,  68  N.  E.  992  (1903) ;  Metropolitan  St.  Ry.  Co.  v.  Gumby,  90 
Fed.  192,  .39  C.  C.  A.  4.55  (1900). 

Compare  Williams  v.  Wilcox.  8  Ad.  &  El.  314  (1838). 


308  WITNESSES  (Ch.  2 

ROSENBERG  et  al.  v.  SHEAHAN  et  al. 
(Supreme  Court  of  Wiscousiu,  1912.    14S  Wis.  92,  133  N.  W.  645.) 

This  was  an  action  on  a  contract  under  which  tlie  plaintiff  installed 
an  elevator  for  the  defendants.  The  case  was  tried  in  the  civil  court 
at  Milwaukee  and  the  plaintiff  recovered  for  substantial  performance. 
On  appeal  to  the  circuit  court  the  case  was  heard  on  the  record  and  the 
judgment  affirmed.     Defendants  appealed." 

Marshall,  J,  ♦  *  *  Appellants  attempted  to  prove  the  exist- 
ence of  the  ordinance  by  means  of  a  booklet  of  a  few  pages  having 
nothing  about  it  to  indicate  that  it  was  an  official  publication.  There 
was  a  general  objection.  The  court  of  original  jurisdiction  took  the 
evidence,  making  no  ruling.  Whether  in  reaching  the  original  con- 
clusion embodied  in  the  judgment  in  the  initial  jurisdiction,  tlie  evi- 
dence in  question  was  considered  does  not  affirmatively  appear.  If 
it  should  have  been  rejected,  the  presumption  must  be,  as  we  have 
seen,  that  it  was.  The  appellate  court  excluded  the  evidence  under  tlie 
general  objection. 

Counsel  cite  many  cases  to  show  that  the  court  below  erred  in  re- 
jecting the  evidence  because  the  objection  thereto  was  not  specific. 

The  fact  seems  to  have  been  overlooked  that  the  cited  cases  are  of 
trials  where  there  was  a  general  objection,  the  evidence  was  received 
and  it  was  held  proper  because  of  competency  for  a  court  to  do  so,  the 
objection  not  being  specific  ;  and  overlooked  the  companion  rule  that  if, 
in  face  of  a  general  objection,  only,  the  court  rejects  the  evidence  the 
ruling  will  not  be  reversed  on  appeal  if  it  appears  that  the  evidence 
was  objectionable  upon  any  specific  ground.  There,  it  is  to  be  pre- 
sumed, the  specific  infirmity  was  the  deciding  factor,  and  it  was  com- 
petent for  the  trial  court  to  take  efficient  notice  thereof  though  it  was 
not  bound  to  do  so.  Pettit  v.  May,  34  Wis.  666;  Nicolai  v.  Davis, 
91  Wis.  370,  64  N.  W.  1001 ;  Crawford  v.  Witherbee,  71  Wis.  419,  46 
N.  W.  545,  9  L.  R.  A.  561 ;  Evans  v.  Sprague,  30  Wis.  303,  and  many 
similar  cases  which  might  be  cited,  are  all  instances  where  the  evidence 
was  received  and  it  was  held  not  error  because  the  objection  was  gen- 
eral. 

True,  it  is  the  rule  that  where  evidence  is  rejected  under  a  general 
objection  and  a  contrary  ruling  would  have  been  called  for  upon  a 
specific  objection,  and  counsel  making  the  offer  requests  the  court  to 
specify  the  particular  ground  for  the  adverse  ruling  for  the  purpose 
of  obviating  it,  it  is  improper  to  refuse  to  do  so.  Colburn  v.  C,  St.  P., 
M.  &  O.  Ry.  Co.,  109  Wis.  377,  85  N.  W.  354,  but  that  is  not  this 
case,  and  is  in  harmony  with  the  general  rule  stated. 

This  is  elementary:  "The  rule  that  the  objection  should  be  specific 
has  no  application,  however,  where  a  general  objection  is  sustained; 

TT  StatcMiient  condensed  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION   OF   WITNESSES  309 

in  that  case  the  party  against  whom  the  ruling  was  made  cannot  urge 
that  the  objection  was  too  general."  Jones  on  Ev.  §  897;  8  Ency. 
PI.  &  Pr.  229;  Wigmore  on  Ev,  §  18.  That  rule  seems  to  be  thus 
rather  more  specifically  stated  in  Tooley  v.  Bacon,  70  N.  Y.  34,  than 
in  any  of  our  own  adjudications  which  we  have  in  mind:  "Where 
evidence  is  excluded  upon  a  mere  general  objection,  the  ruling  will  be 
upheld  upon  appeal  if  any  ground  in  fact  existed  for  the  exclusion; 
it  will  be  assumed  in  the  absence  of  any  request  by  the  opposing  party 
or  the  court,  to  make  the  objection  more  definite,  that  it  was  under- 
stood, and  that  the  ruling  was  placed  upon  the  right  ground." 

There  are  other  exceptions  to  the  general  rule  that  objections  should 
be  specific,  and,  if  not,  an  adverse  ruling  will  not  be  held  error,  as 
where  evidence  offered  is  manifestly  improper  the  court  may,  in  its 
discretion,  exclude  the  same  whether  objected  to  or  not.  Farmers' 
Bank  V.  Whinfield,  24  Wend.  (N.  Y.)  421 ;  Jones  on  Ev.  §  896.  And, 
further,  where  it  is  manifest  that  the  evidence  is  not  proper  in  any 
circumstances,  a  general  objection,  though  overruled  will  be  deemed 
to  have  been  sufficient.     Wigmore  on  Evidence,  §  18. 

The  foregoing  in  favor  of  respondents  disposes  of  the  contention 
based  on  the  claimed  existence  of  a  city  ordinance  affecting  their  right 
to  recover ;  but  there  were  good  reasons  for  the  exclusion.  As  the 
trial  court  held,  the  offered  evidence  was  not  a  copy  of  a  city  ordi- 
nance authenticated  in  the  manner  provided  by  section  4137,  Stats. 
1898.  The  document  did  not  purport  to  have  been  printed  by  au- 
thority of  the  common  council,  as  the  statute  provides.  That  was 
sufficient  to  justify  the  exclusion.  Quint  v.  City  of  Merrill,  105  Wis. 
406,  81  N.  W.  664.     It  was  not  a  case  of  defective  authentication  with 

which  the  trial  court  had  to  deal,  but  of  no  authentication  at  all. 
*     *     * 

Judgment  affirmed.^® 

78  Accord:  Davey  v.  Railway,  116  Cal.  325,  48  Pac.  117  (1897),  and  cases 
there  cited. 

The  rule  appears  to  be  the  same  where  evidence  is  excluded  on  an  objec- 
tion assigning  the  wrong  ground.    Eschbach  v.  Hurtt,  47  Md.  61  (1S77). 

Compare  Read,  J.,  in  Bridgers  v.  Bridgers,  69  N.  C.  451  (1873):  "If  the 
defendant  had  said,  I  object  to  this  witness  testifying  as  to  a  question  of  law, 
we  may  reasonably  suppose  that  both  the  plaintiff  and  his  honor  would  have 
seen  the  force  of  the  objection.  And  then  the  plaintiff  could  have  avoided  the 
objection  by  asking  the  witness  as  to  the  facts  and  leaving  the  law  to  his 
honor.  Or  if  his  objection  had  been  general,  it  might  have  led  to  the  same  re- 
sult. But  his  objection  was  special,  and  untenable,  and  calculated  to  mis- 
lead." 

For  the  various  views  on  a  somewhat  similar  question,  where  a  nonsuit  or 
a  verdict  has  been  directed  on  a  general  motion  or  on  a  motion  specifving  un- 
tenable grounds,  see  Wallner  v.  Traction  Co.,  245  111.  148,  91  N.  E.  1053  (1910) ; 
Gerding  v.  Haskin,  141  N.  Y,  514,  36  N,  E.  601  (1894) ;  Palmer  v.  Marysville 
Democrat  Pub.  Co.,  90  Cal.  168,  27  Pac.  21  (1891). 


310  WITNESSES  ,  (Ch.  2 

PENN  V.  BIBBY. 
(Court  of  Appeal  in  Chancery,  1S6G.     L.  R.  2  Ch.  App.  Cas.  127.) 

On  a  bill  to  restrain  the  infringement  of  a  patent,  issues  were  direct- 
ed to  be  tried  before  the  court  without  a  jury,  and  were  found  in  fa- 
vor of  the  complainant.  The  defendant  moved  before  the  Lord  Chan- 
cellor for  a  new  trial.'' ^ 

Lord  Chelmsford,  L.  C,  after  stating  the  circumstances,  said,  that 
the  motion  for  a  new  trial  upon  the  first  question  proceeded  upon  the 
ground  that  the  verdict  was  against  the  weight  of  evidence.     *     *     * 

I  have  now  disposed  of  every  question  connected  with  the  patent; 
but  there  was  one  ground  of  application  for  a  new  trial  which  must 
be  shortly  noticed.  It  is  said  that  the  defendants  were  proceeding  to 
cross-examine  some  of  the  plaintiff's  witnesses  as  to  their  knowledge 
of  the  use  of  wood  for  bearings  in  paddle-wheels  prior  to  the  date  of 
the  patent,  and  that  the  Vice-Chancellor  stopped  them  upon  the  ground 
that  this  was  not  within  the  notice  of  objections.  I  apprehend,  that  it 
is  always  competent  upon  cross-examination,  to  put  a  question  in  this 
general  form.  The  counsel  would  not  be  entitled  to  inquire  of  the 
plaintiff's  witnesses  as  to  any  specific  instance  of  the  prior  use  of  the 
patented  invention  of  which  he  had  not  given  notice ;  but  he  has  al- 
ways a  right  to  test  the  general  knowledge  of  the  witnesses  upon  the 
subject. 

In  order  to  ground  this  objection,  however,  the  question  proposed  to 
be  put  should  have  been  formerly  tendered  to  the  judge,  and  rejected 
by  him  as  inadmissible.  Now,  it  appears  that  his  honour  was  never 
distinctly  requested  to  admit  any  specific  question,  but  from  some 
cursory  remarks  it  is  assumed  that  he  would  not  have  permitted  a 
particular  line  of  cross-examination. 

This,  however,  is  not  sufiicient.  The  judge  should  have  an  oppor- 
tunity of  deciding  upon  some  distinct  question,  and  have  refused  to 
allow  it,  before  there  can  be  a  motion  made  for  a  new  trial  on  account 
of  the  rejection  of  evidence.  This  objection,  therefore,  has  no  foun- 
dation. 

The  motion  for  a  new  trial  must  be  refused  with  costs. 

Motion  refused.**" 

T"  statement  condensed  and  part  of  opinion  omitted. 

80  Mr.  Justice  Ricks,  in  Chicago  City  Ry.  Co.  v.  Carroll.  200  III.  318,  68 
N.  E.  1087  (1003):  "When  this  witness  retired  from  tlie  stand,  appellee  an- 
nounced tliat  lie  rested  his  case.  ApiHjlIant's  attorney  then  said:  'We  de- 
sire to  offer  evidence,  your  honor,  on  the  quesUon  of  inspection  of  the  cars, 
and  so  fOrth.'  The  court  replied:  'Very  well;  I  won't  receive  any  evidence 
except  as  to  the  owncfrship  of  this  line  at  this  stage.'  Exception  was  taken. 
•  •  *  Appellant,  in  fact,  offered  no  evidence  upon  the  matter.  No  witne.ss 
was  i)nt  ujton  the  stand;  no  question  was  asked.  Is'otlilng  was  done  except  a 
mere  conversation  or  talk  had  hetween  counsel  for  appellant  and  the  court. 
Such  procedure  as  that  does  not  amount  to  an  offer  of  evidence,  and  the  re- 
marks of  the  cfturt  did  not  amount  to  a  refusal  to  admit  evidence.     There  can 


Sec.  4)  EXAMINATION   OF  WITNESSES  311 


SCOTLAND  COUNTY  v.  HILL". 

(Supreme  Court  of  the  United  States,  1SS4.     112  U.  S.  183,  5  Sup.  Ct.  9.3,  28 

L.  Ed.  692.) 

This  was  an  action  on  certain  county  bonds.  The  defence  reHed 
on  was  that  the  bonds  had  been  negotiated  in  violation  of  an  injunction, 
of  which  the  holders  had  notice.  The  court  excluded  the  record  in 
the  injunction  case. 

The  defendant  then  "offered  to  prove  by  Charles  Metz,  the  agent 
named  in  the  pleadings,  that  he  had  actual  notice  of  the  pendency  of 
the  aforesaid  suit  of  Levi  Wagner  et  al.  v.  Metz  et  al.,  at  the  time  he 
delivered  the  instruments  (described  in  the  defendant's  pleading)  to  the 
Missouri,  Iowa  &  Nebraska  Railway  Company,  and  offered  to  prove 
that  the  Missouri,  Iowa  &  Nebraska  Railway  Company,  and  each 
subsequent  holder,  received  the  instruments  referred  to  in  the  plain- 
tiff's petition  with  actual  notice  of  the  pendency  of  the  aforesaid  suit, 
*  *  *  as  set  up  in  the  fourth  count  of  the  answer."  This  was 
also  objected  to  and  the  objection  sustained.  To  all  these  rulings 
excluding  testimony  exceptions  were  duly  taken,  and  error  is  assigned 
here  thereon.*^ 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  thef  Court.  *  *  * 
The  case  of  County  of  Warren  v.  Marcy,  97  U.  S.  96,  24  L.  Ed.  977, 
decides  that  purchasers  of  negotiable  securities  are  not  chargeable  with 
constructive  notice  of  the  pendency  of  a  suit  affecting  the  title  or  va- 
lidity of  the  securities ;  but  it  has  never  been  doubted  that  those  who 
buy  such  securities  from  Htigating  parties,  with  actual  notice  of  the 

be  no  refusal  to  admit  tlaat  wliich  has  not  been  offered,  and  counsel  cannot, 
by  engaging  in  a  mere  conversation  with  the  court,  although  it  may  relate  to 
the  procedure,  by  merely  stating  what  he  desires  to  do,  get  a  ruling  from  the 
court  upon  which  he  can  predicate  error.  If  appellant  desired  to  make  the 
contention  it  now  makes,  it  should  have  at  least  put  a  witness  upon  the  stand 
and  proceeded  far  enough  that  the  question  relative  to  the  point  it  is  now 
said  it  was  desired  to  offer  evidence  upon  was  reached,  and  then  put  the 
question  and  allow  the  court  to  rule  upon  it,  and  then  offer  what  was  expect- 
ed to  be  proved  by  the  witness,  if  he  was  not  allowed  to  answer  the  ques- 
tion asked.  It  was  not  stated  to  the  court  that  appellant  did  inspect  the  cars 
or  could  prove  that  the  cars  had  been  regularly  inspected  or  recently  inspect- 
ed, or  that  the  inspection  tliat  was  made  was  an  examination  of  the  trolley 
pole  or  its  attachments,  and  to  now  hold  that  the  case  should  be  reversed  up- 
on the  mere  statement  of  counsel  that  he  desired  to  offer  evidence  upon  the 
question  of  the  'in.';pection  of  the  cars,  and  so  forth,'  would,  as  we  think,  be 
setting  a  dangerous  precedent,  and  one  that  would  tend  to  irregularity  in  such 
matters.  Stevens  v.  Newman,  68  111.  App.  549  (1896) ;  Beard  v.  Lofton,  102 
Ind.  408  [2  N.  E.  120  (1885)] ;  Morris  v.  Morris.  119  Ind.  341  [21  N.  E.  918 
(1889)] ;  Ralston  v.  Moore,  105  Ind.  243  [4  N.  E.  673  (1886)];  Smith  v.  Gorham, 
119  Ind.  436  [21  N.  E.  ]096  (1889)];  Citv  of  Evansville  v.  Thacker,  2  Ind.  App. 
370  [28  N.  E.  550  (1S91)] ;  Darnell  v.  Sallee,  7  Ind.  App.  581  [34  N.  E.  1020 
(1893)] ;  First  Nat.  Bank  of  Kendallville  v.  Stanley,  4  Ind.  App.  213  [30  N.  E. 
799  (1892)] ;  Lewis  v.  State  ex  rel.  Daily,  4  Ind.  App.  504  [31  N.  E.  375  (1892)] : 
Huggins  v.  Hughes,  11  Ind.  App.  465  [39  N.  E,  298  (1895)] ;  S  Ency.  of  PL  and 
Pr.  236." 
81  Statement  condensed  and  part  of  opinion  omitted. 


312  WITNESSES  (Ch.  2 

suit,  do  so  at  their  peril,  and  must  abide  the  result  the  same  as  the 
parties  from  whom  they  got  tlieir  title.  Here  the  offer  was  to  prove 
actual  notice,  not  only  to  the  plaintiff  when  he  bought,  but  to  every 
other  buyer  and  holder  of  the  bonds  from  the  time  they  left  the  hands 
of  Metz,  pending  the  suit,  until  they  came  to  him.  Certainly,  if  these 
facts  had  been  established,  the  defense  of  the  county,  under  its 
fourth  plea,  would  have  been  sustained ;  and  this,  whether  an  in- 
junction had  been  granted  at  the  time  the  bonds  were  delivered  by 
(Metz  or  not.  The  defense  does  not  rest  on  the  preliminary  injunc- 
tion, but  on  the  final  decree  by  which  the  rights  of  the  parties  were 
fixed  and  determined. 

It  is  claimed,  however,  that  error  cannot  be  assigned  here  on  the  ex- 
ception to  the  exclusion  of  the  oral  proof,  because  the  record  does 
not  show  that  any  witness  was  actually  called  to  the  stand  to  give  the 
evidence,  or  that  any  one  was  present  who  could  be  called  for  that  pur- 
pose, if  the  court  had  decided  in  favor  of  admitting  it,  and  we  are  re- 
ferred to  the  cases  of  Robinson  v.  State,  1  Lea,  (Tenn.)  673,  and 
Eschbach  v.  Hurtt,  47  Md.  66,  in  support  of  that  proposition.  Those 
cases  do  undoubtedly  hold  that  error  cannot  be  assigned  on  such  a 
ruling,  unless  it  appears  that  the  oifer  was  made  in  good  faith,  and 
this  is  in  reality  all  they  do  decide.  If  the  trial  court  has  doubts  about 
the  good  faith  of  an  offer  of  testimony,  it  can  insist  on  the  production 
of  the  witness,  and  upon  some  attempt  to  make  the  proof,  before  it 
rejects  the  offer;  but  if  it  does  reject  it,  and  allows  a  bill  of  exceptions 
which  shows  that  the  ofifer  was  actually  made  and  refused,  and  there 
is  nothing  else  in  the  record  to  indicate  bad  faith,  an  appellate  court 
must  assunie  that  the  proof  could  have  been  made,  and  govern  itself 
accordingly. 

It  is  evident  from  the  whole  record  that  the  court  below  proceeded 
on  the  theory  that  the  decree  in  the  Wagner  suit  could  not  conclude 
the  plaintiff,  and  that,  consequently,  it  was  a  matter  of  no  importance 
whether  he  had  notice  of  the  pendency  of  the  suit  or  not.  In  our  opin- 
ion, the  error  began  with  the  exclusion  of  the  record  in  that  suit.  As 
notice  of  the  pendency  of  the  suit  was,  however,  necessary  to  bind 
the  plaintiff  by  the  decree,  proof  of  that  fact  was  offered,  so  that 
the  question  as  to  the  effect  of  the  decree  upon  this  suit  might  be  prop- 
erly presented  for  review  if  deemed  advisable.  The  court  below 
seems  not  to  have  doubted  the  good  faith  of  the  offer,  and  so  ruled 
against  it  without  first  requiring  the  defendant  to  produce  his  wit- 
nesses and  show  his  ability  to  furnish  the  testimony  if  allowed  to  do 
so.  It  is  a  matter  of  no  importance  whether  the  decision  in  the  Wag- 
ner suit  was  in  conflict  with  that  of  this  court  in  Scotland  Co.  v. 
Thomas,  supra,  or  not.  The  question  here  is  not  one  of  authority  but 
of  adjudication.  If  there  has  been  an  adjudication  which  binds  the 
plaintiff,  that  adjudication,  whether  it  was  right  or  wrong,  concludes 
him  until  it  has  been  reversed  or  otherwise  set  aside  in  some  direct 


Sec.  4)  EXAMINATION   OP  WITNESSES  31.? 

proceeding  for  that  purpose.    It  cannot  be  disregarded  any  more  in  the 
courts  of  the  United  States  than  in  those  of  the  state. 

Without  considering  any  of  the  other  questions  which  have  been 
argued,  we  reverse  the  judgment  and  remand  the  cause  for  a  new- 
trial. 


LADD  V.  MISSOURI  COAL  &  MINING  CO. 

{Circuit  Court  of  AppeaLs  of  the  United  States,  Eighth  Circuit,  1895.    66  Fed. 

880,  14  C.  C.  A.  246.) 

Caldwell,  Circuit  Judge. *^  This  action  was  commenced  in  the 
United  States  circuit  court  for  the  Eastern  District  of  Missouri  by 
WiUiam  M.  Ladd,  the  plaintiff  in  error,  against  the  Missouri  Coal  & 
Mining  Company,  the  defendant  in  error,  to  recover  $34,637  damages 
for  the  breach  of  an  alleged  contract  of  brokerage.  At  the  close  of  the 
testimony,  by  direction  of  the  court,  the  jury  returned  a  verdict  for 
the  defendant,  upon  which  final  judgment  was  rendered,  and  thereupon 
the  plaintiff  sued  out  this  writ  of  error.     *     *     * 

The  plaintiff  relies  exclusively  on  the  alleged  sale  to  Hatch,  and  in- 
sists that  he  was  prepared  to  prove,  and  offered  to  prove,  that  Murdock 
did  approve  and  accept  for  the  defendant  the  terms  of  sale  agreed 
upon  between  the  plaintiff  and  Hatch,  and  that  the  court  erroneoush- 
excluded  this  evidence.  Whatever  the  fact  may  have  been,  the  record 
does  not  support  this  contention.  On  this  subject  the  record  discloses 
that  while  the  plaintiff'  was  on  the  stand  as  a  witness,  the  following 
proceedings  took  place : 

"Q.  You  also  stated  that  on  November  13th  Mr.  Murdock  returned 
in  the  afternoon  to  your  office?  A.  I  did.  Q.  And  you  handed  him 
the  proposed  contract  with  Mr.  Hatch?  A.  I  did.  (Plaintiff  offers 
to  prove  by  his  witness  the  conversation  between  him  and  Mr.  Mur- 
dock relating  to  the  contract,  which  conversation  was  had  at  St.  Louis 
on  November  14,  1892,  but,  defendant  objecting,  the  court  sustained 
the  objection,  and  refused  to  allow  plaintiff  to  testify  to  any  conver- 
sation between  him  and  said  Murdock  on  November  14th,  save  such 
as  related  to  the  transmission  of  the  contract  from  St.  Louis  to  Port 
Henry,  to  which  action  of  the  court  in  so  ruling  plaintiff  then  and 
there  duly  excepted.)" 

It  will  be  observed  that  all  that  the  plaintiff*. offered  to  prove  was 
"the  conversation  between  him  and  Murdock  relating  to  the  con- 
tract." This  offer  was  not  accompanied  by  any  statement  as  to  what 
that  conversation  was,  or  that  it  was  material  to  any  issue  then  being 
tried.  The  insufficiency  of  the  exception  is  rendered  apparent  by  a 
single  consideration.  If  this  court  should  reverse  the  case  because  the 
witness  was  not  permitted  to  state  the  conversation,  what  is  there  in 

82  Part  of  opinion  omitted. 


314  WITNESSES  (Ch.  2 

this  record  to  show  or  suggest  that  upon  another  trial,  when  the  wit- 
ness is  allowed  to  state  tlie  conversation,  a  single  word  of  it  will  be 
material  to  the  case  or  admissible  in  evidence?  The  offer  to  prove 
the  "conversation,"  without  some  statement  as  to  what  it  was,  and 
showing  its  materiality,  was  too  general  to  be  made  the  foundation  of 
a  valid  exception.  The  rule  is  well  settled  that  the  bill  of  exceptions 
must  show  the  materiality  of  the  evidence  which  was  tendered  and 
rejected. 

The  evidence  rejected,  or  a  statement  of  what  it  tended  to  prove, 
must  appear  in  the  bill  of  exceptions.     Packet  Co.  v.  Clough,  20  Wall 
528,  22  L.  Ed.  406;    Railway  Co.  v.  Smith,  21  Wall.  255,  22  L.  Ed 
513;    Thompson  v.  Bank,  111  U.  S.  529,  4  Sup.  Ct.  689,  28  L.  Ed 
507;  Clement  v.  Packer,  125  U.  S.  309,  8  Sup.  Ct.  907,  31  L.  Ed.  721 
Patrick  V.  Graham,  132  U.  S.  627,  10  Sup.  Ct.  194,  33  L.  Ed.  460; 
Lyon  V.  Batz,  42  Mo.  App.  606 ;   Bener  v.  Edgington,  76  Iowa,  105,  40 
N.  W.  117.     Moreover,  it  does  not  appear  from  the  record  before  us 
tliat  Murdock  was  the  agent  of  the  defendant  for  the  purpose  of 
selling  the  land,  or  that  he  had  any  authority  to  approve  or  confirm 
any  sale  thereof  made  by  the  plaintiff.    It  results  that  the  circuit  court 
did  not  err  in  directing  the  jury  to  return  a  verdict  for  the  defendant, 
and  its  judgment  is  therefore  affirmed. 

Judgment  affirmed.''^ 


BUCKSTAFF  v.  RUSSELL. 

(Supreme  Court  of  the  United  States,  1891.     151  U.  S.  C26,  14  Sup.  Ct.  44S, 

38  L.  Ed.  292.) 

This  was  an  action  to  recover  the  price  of  certain  boilers  and  ma- 
chinery furnished  to  the  defendants  under  a  written  contract.  The 
defendants  filed  a  counterclaim  for  breach  of  warranty.  Verdict  and 
judgment  for  plaintiff,  to  reverse  which  defendants  sued  out  a  writ  of 
error.  ^* 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  Court.  *  *  * 
The  defendant  Utt  was  sworn  as  a  witness  for  the  defense,  and,  as  we 

88  Accord:  Griffin  v.  Henderson,  117  Ga.  382,  43  S.  E.  712  (100:5);  Crowley 
V.  Apploton,  14,S  Mass.  98,  18  N.  E.  675  (1SS8) ;  Cincinnati,  N.  O.  &  T.  P.  Ry. 
Co.  V.  Stonecipher,  95  Tenu.  311,  32  S.  W.  208  (1895) ;  Dreber  v.  Fitcliburg. 
22  Wis.  075,  99  Am.  Dec.  91  (1SG8). 

When  a  document  is  excluded,  its  contents  must  be  Incorporated  In  the  bill 
of  exceptions,  to  enable  the  appellate  court  to  pass  on  its  materiality.  North- 
western Union  Packet  Co.  v.  Clough,  20  Wall.  528,  22  L.  Ed.  40G  (1874); 
Thompson  v.  First  Nat  Bank,  111  U.  S.  529,  4  Sup.  Ct  689,  28  L.  Ed.  507 
(]8.S4). 

The  rule  requiring  a  statement  of  the  excluded  testimony  is  not  applied 
where  a  proper  question  is  excluded  on  cros.s-examin:ition.  Cunningham  v, 
Austin  &  N.  W.  Ky.  Co.,  88  Tex.  534,  31  S.  W.  629  (1895) ;  Kuapp  v.  Wing, 
72  Vt.  334,  47  Atl.  1075,  (1900). 

•  «  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION   OF   WITNESSES  315 

infer,  in  support  of  the  counterclaim.  Having  stated  that  he  and  Buck- 
staff,  in  April,  1888,  first  commenced  negotiations  for  the  purchase  of 
the  boilers  with  Mr.  Giddings,  representing  Russell  &  Co.,  the  following 
questions  were  put,  successively,  to  him:  (1)  "What  conversation  did 
you  have  with  him,  if  any,  about  the  purpose  for  which  the  machine 
must  be  used,  and  the  necessity  for  steam  capacity  in  the  boilers?" 
(2)  "You  may  state  in  what  your  damages  consisted,  and  the  amount, 
in  consequence  of  the  defective  construction,  and  the  failure  of  this  ma- 
chinery to  perform  its  labor,  and  the  labor  required  of  it  by  the  terms 
of  the  contract,  from  the  time  of  its  erection  up  to  the  first  day  of 
March."  (3)  "You  may  state  what  damage  you  sustained  in  conse- 
quence of  the  failure  of  this  machinery  to  do  the  work  at  the  paper 
mill."  (4)  "You  may  state  what  loss  you  suffered  in  consequence  of 
the  defective  construction  and  failure  in  the  machinery."  (5)  "In  what 
particular  did  you  and  the  defendant  Buckstaff  sustain  loss  by  reason 
of  the  defects  in  the  construction  and  the  failure  of  this  machinery?" 

Each  of  these  questions  was  objected  to  upon  the  ground  that  it  was 
incompetent,  irrelevant,  and  immaterial.  No  one  of  them  was  objected 
to  upon  the  ground  that  it  was  a  leading  question. 

In  the  case  of  Shauer  v.  Alterton,  151  U.  S.  607,  14  Sup.  Ct.  442, 
38  L.  Ed.  286,  just  decided,  it  was  held  to  be  the  settled  construction 
of  the  twenty-first  rule  of  this  court  that  an  assignment  of  error  based 
upon  the  exclusion  of  an  answer  to  a  particular  question  in  the  deposi- 
tion of  a  witness  would  be  disregarded  here,  unless  the  record  sets 
forth  the  answer  or  its  full  substance.  Packet  Co.  v.  Clough,  20  Wall. 
528,  542,  22  L.  Ed.  406;  Railroad  Co.  v.  Smith,  21  Wall.  255,  262.  22 
L.  Ed.  513 ;  Thompson  v.  Bank,  111  U.  S.  529,  535,  536,  4  Sup.  Ct.  689, 
28  L.  Ed.  507.  Our  rule,  thus  construed,  is  one  to  which  parties  can 
easily  conform.  Having  access  to  the  deposition  containing  the  answer 
of  the  witness  to  the  interrogatory,  parties,  as  well  as  the  trial  court, 
are  informed  of  the  precise  nature  of  the  evidence  offered.  The  re- 
quirement that  an  assignment  of  error  based  upon  the  admission  or 
rejection  of  evidence  must,  in  the  case  of  a  deposition  excluded  in  whole 
or  in  part,  state  the  full  substance  of  tlie  evidence  so  admitted  or  re- 
jected, means  that  the  record  must  show,  in  appropriate  form,  the  na- 
ture of  such  evidence,  in  order  that  this  court  may  determine  whether 
or  not  error  has  been  committed  to  the  prejudice  of  the  party  bringing 
the  case  here  for  review. 

But  this  rule  does  not  apply  where  the  witness  testifies  in  person,  and 
where  the  question  propounded  to  him  is  not  only  proper  in  form,  but 
is  so  framed  as  to  clearly  admit  of  an  answer  favorable  to  the  claim 
or  defense  of  the  party  producing  him.  It  might  be  very  inconvenient 
in  practice  if  a  party,  in  order  to  take  advantage  of  the  rulings  of  the 
trial  court  in  not  allowing  questions  proper  in  form,  and  manifestly 
relevant  to  the  issues,  were  required  to  accompany  each  question  with 
a  statement  of  the  facts  expected  to  be  established  by  the  answer  to 


316  "WITNESSES  (Ch.  2 

the  particular  question  propounded."  Besides,  (and  this  is  a  con- 
sideration of  some  weight),  such  a  statement  in  open  court,  and  in 
the  presence  of  the  witness,  would  often  be  the  means  of  leading  or 
instructing  him  as  to  the  answer  desired  by  the  party  calling  him.  If 
the  question  is  in  proper  form,  and  clearly  admits  of  an  answer  relevant 
to  the  issues  and  favorable  to  the  party  on  whose  side  the  witness  is 
called,  it  will  be  error  to  exclude  it.  Of  course,  the  court,  in  its 
discretion,  or  on  motion,  may  require  the  party  in  whose  behalf  the 
question  is  put  to  state  the  facts  proposed  to  be  proved  by  the  answer. 
But,  if  that  be  not  done,  the  rejection  of  the  answer  will  be  deemed 
error  or  not,  according  as  the  question,  upon  its  face,  if  proper  in  form, 
may  or  may  not  clearly  admit  of  an  answer  favorable  to  the  party  in 
whose  behalf  it  is  propounded. 

Tested  by  these  views,  the  court  below  erred  in  not  permitting  the 
defendant  Utt  to  answer  the  above  questions.  Each  one  of  them  was 
relevant  to  the  counterclaim,  and  each  admitted  of  an  answer  that  tend- 
ed to  support  it.     *     *     * 

Judgment  reversed. 


II.  Examination  in  Chie^^ 
CASE  OF  THE  CORPORATION  OF  BEWDLEY. 

(Court  of  Queen's  Bench,  1714.     10  Mod.  151.) 

Those  that  produce  a  witness  ought  to  examine  him  in  chief  only: 
but  they,  against  whom  he  is  brought,  may  examine  him  upon  a  voir 
dire,  if  they  please,  whether  he  is  concerned  in  interest. 

The  matter  in  issue  was,  which  was  the  charter  by  which  the  cor- 
poration of  the  town  of  Bewdley  was  to  act,  whether  by  the  ancient 
one,  or  .one  of  later  date? 

A  witness  was  produced  to  establish  the  ancient  charter. 

His  evidence  was  excepted  against,  as  being  a  mortgagee  under  the 
old  corporation. 

This  was  proved  by  an  answer  of  his  to  a  bill  in  Chancery. 

But  it  was  insisted  that  this  answer  was  so  uncertainly  penned,  as 
that  it  might  be  true,  and  yet  his  mortgage  of  such  a  nature  as  not  to 

88  Lamar,  J.,  in  Griffin  v.  Henderson,  117  Ga.  382,  43  S.  E.  712  (1903): 
"Parties  can  often  agree  in  the  presence  of  the  court  as  to  what  the  witness 
would  testify,  or,  If  not,  the  witness,  or  examining  attorney,  can  state  what 
the  answer  would  he;  and  where  the  subject-matter  is  iinportant,  the  jud^e 
may,  in  liis  discretion,  retire  the  jury  until  its  admissibility  has  been  settled. 
We  are  well  aware  that  the  rule  may  be  perverted  into  a  moans  of  gettinj; 
inadmissible  evidence  before  the  jury,  or,  by  forcing  their  constant  with- 
drawal, retarding  the  trial.  The  courts  must  rely  upon  the  good  faith  of 
roiiiiscl  not  to  bring  about  such  a  result.  Rut  it  would  never  do  to  grant  a 
new  trial  until  it  aiipeared,  not  only  that  the  question  was  jiropt^r,  but  that 
tlie  answer  was  malerjal,  and  would  have  been  of  benefit  to  the  complaining 
party." 


Sec.  4)  EXAMINATION   OF   WITNESSES  317 

prevent  his  evidence,  and  therefore  that  he  might  be  called  to  explain 
the  ambiguity  of  his  answer. 

The  Court  was  of  opinion  that  he  might,  since  his  answer  de- 
pended upon  his  veracity,  as  much  as  the  evidence  he  could  then  give ; 
and  if  the  one  be  to  be  credited,  why  not  the  other? 

But  afterwards  his  evidence  was  rejected  upon  another  considera- 
tion, viz.  that  in  his  answer  he  lays  the  whole  stress  of  his  defence  up- 
on the  matter  then  in  issue,  viz.  the  subsisting  of  the  present  corpora- 
tion.«« 


ANONYMOUS. 

(Court  of  Chancery,  1754.    Amb.  252.) 

Motion  to  suppress  a  deposition  taken  before  commissioners,  be- 
cause the  attorney  for  plaintiff  had  wrote  down  the  whole  in  the  exact 
form  of  the  deposition  before  it  was  taken.  And  though  it  appeared 
that  the  witness  had  told  him  the  facts  and  circumstances  mentioned  in 
it,  yet  his  Lordship  said,  it  would  be  of  dangerous  tendency  to  permit 
it  to  be  read ;  for  in  depositions  it  is  material  to  state  the  evidence  as 
given  by  the  witness:  in  this  case  the  attorney  had  methodised  and 
worded  it,  and  is  therefore  no  more  than  an  affidavit.^^    He  said,  at  law 

8  6  That  a  witness,  prima  fade  incompetent,  cannot  be  examined  bj'  the 
party  calling  to  prove  a  fact  necessary  to  make  him  competent,  see  Wil- 
liams' Adm'r  v.  Williams,  67  Mo.  661  (1878). 

But  where  the  witness  himself  discloses  the  disqualification,  his  testimony 
may  also  remove  it.    Abrahams  v.  Bunn,  4  Burrow,  2251  (1768). 

ST  In  the  Case  of  Eldridge,  82  N.  Y.  161,  37  Am.  Rep.  558  (ISSO)  Costigan's 
Cases  on  I^egal  Ethics,  p.  198,  Finch,  J.,  condemned  such  practice  in  the  fol- 
lowing language:  "*  *  *  Laying  aside,  then,  all  question  of  the  truth  or 
falsity  of  the  answers,  discarding  every  thing  dependent  upon  Wheeler  alone 
as  unworthy  of  credit,  the  fact  yet  remains  that  an  attorney  of  the  court, 
having  taken  out  a  commission  for  the  examination  of  a  witness,  writes  out 
what,  when  printed,  are  twenty-six  pages  of  answers  to  interrogatories,  and 
eighteen  pages  of  answers  to  cross-interrogatories,  furnishes  them  to  the  wit- 
ness, who  has  already  drawn  upon  him  for  serious  sums  of  monev,  reads  a 
part  of  the  answers  to  the  commissioner,  and  leaves  the  rest  for  the  wit- 
ness to  repeat,  and  so  practically  puts  his  own  words,  his  own  ideas,  his 
own  facts  into  Wheeler's  mouth,  and  gets  them  before  the  surrogate  dis- 
guised as  honest  testimony.  Such  conduct  is  inexcusable.  The  coloring  sought 
to  be  given  it  by  Eldridge  that  he  merely  meant  to  refresh  the  memory  of  the 
witness  is  not  justified  by  the  facts.  He  furnished  answers,  not  notes.  He 
controlled  and  mastered  the  memory  of  the  witness;  not  merely  refreshed 
it.  The  witness  did  not  answer  at  all.  Eldridge  answered  for  him.  We  get 
neither  the  language  nor  the  memory  of  the  witness;  we  get  only  that  of 
his  teacher.  Practically  the  examination  was  merely  an  afl^davit  drawn  by 
Eldridge  and  sworn  to  by  Wheeler.  In  its  true  character  it  was  not  admis- 
sible before  the  surrogate.  When,  therefore,  it  was  disguised  on  the  shape 
of  testimony  and  the  form  of  an  examination,  and  so  received  into  the  case 
a  fraud  was  committed  on  the  surrogate,  and  the  author  of  it  was  Eldridge. 
Grant  that  the  answers  are  not  shown  to  be  false,  and  that  Eldridge  be- 
lieved them  to  be  true ;  yet  he  con-upts  justice  at  the  fountain  by  dictating 
the  evidence  of  the  witness.  Upon  the  trial  of  an  issue  in  open  court  a  ques- 
tion merely  leading  is  excluded.     The  law  so  carefully  guards  the  independ- 


318  WITNESSES  (Ch.  2 

a  witness  is  allowed  to  refresh  his  memory  by  notes  as  to  dates  and 
names,  because  there  is  nothing  to  guide  the  memory  as  to  them ;  but 
he  never  knew  a  Court  of  Law  admit  the  whole  evidence  to  be  given 
from  writing.  Doe  v.  Perkins,  3  T.  R.  752 ;  Tanner  v.  Tayler,  Id.  754 ; 
8  East,  284,  289;  Hedge's  case,  28  Howell's  St.  Tr.  1367.  See  24 
Howell's  St.  Tr.  824.  There  is  no  certain  rule  how  far  evidence  may 
be  admitted  from  notes.  Some  judges  had  thought,  and  he  was  (he 
said)  inclined  the  same  way,  that  the  witness  might  speak  from  notes 
which  were  taken  at  the  time  of  the  transaction  in  question,  but  not 
if  they  were  wrote  afterwards.  Burrough  v.  Martin,  2  Campb.  112. 
Deposition  suppressed. 


STEER  V.  LITTLE. 

,     (Supreme  Judicial  Court  of  New  Hampshire,  1S63.     44  N.  H.  613.) 

Trespass  quare  clausum.  The  plaintiff  owned  the  north  part  and 
the  defendant's  wife  the  south  part  of  a  lot  laid  out  and  conveyed  as 
a  one  hundred  acre  lot ;  but  there  was  evidence  tending  to  show  that 
it  contained  more  than  one  hundred  acres — the  exact  number  of  acres 
not  being  agreed  upon  by  the  parties,  nor  clearly  proved  by  the  evi- 
dence. The  question  between  the  parties  was  the  location  of  the  di- 
viding line  between  them.  The  defendant  claimed  and  introduced 
evidence  tending  to  prove  that  a  line  run  by  one  Goodall,  giving  the 
plaintiff  fifty  acres,  had  been  agreed  upon  by  the  parties  as  the  divid- 
ing line.  The  plaintiff  introduced  evidence  tending  to  show  that  no 
line  had  been  agreed  upon,  and  that  a  line  dividing  the  lot  into  two 
equal  parts  was  the  dividing  line. 

The  defendant  objected  to  the  following  question,  put  to  S.  Whit- 
ing, as  leading:  "Have  you  traced  the  dividing  line  through  your 
lot  ? "  The  court  ruled  that  the  question  was  leading,  but  that  it 
might  be  put ;   and  the  defendant  excepted. 

One  Rowell  testified  in  a  deposition  to  conversations  when  the 
plaintiff  and  the  defendant  and  his  wife  were  present.  The  defend- 
ant objected  to  the  third  and  fifth  interrogatories,  as  leading,  and  to 
the  answer  to  the  fifth  interrogatory,  on  the  ground  that  the  dec- 
larations of  the  defendant's  wife  are  inadmissible  in  the  case.  The 
court  allowed  the  questions  and  answers  to  be  read,  and  the  defend- 
ant excepted.     The  interrogatories  and  answers  were  as  follows : 

"3.  State  what  claim  Mrs.  Little  and  her  husband  made  as  to  hold- 
ing, by  virtue  of  your  deed  to  her,  all  but  fifty  acres  of  said  lot? 

"Ans.  She  stated  that  I  had  deeded  to  Stephen  Steer,  or  to  Maria 

ent  and  unwarped  testimony  of  a  \vlfnes.s  that  It  will  not  permit,  even  I)y 
fho  form  of  a  qnostlon,  llio  susj-'«'stion  of  its  answer.  Yet  liere  the  answers  to 
thirty-three  direct  Interrogatories,  and  forty-one  cross-Interropatories  are  ac- 
tually written  out  by  the  attorney  for  the  use  of  the  witness,  and  so  imported 
into  the  case." 


Sec.  4)  EXAMINATION   OF   WITNESSES  319 

Smith,  previous  to  her  deed,  fifty  acres  of  the  other  end  of  the  lot, 
and  to  her  the  residue  to  the  Woods  lot;  and  if  I  had  not  bounded 
her  on  the  Woods  lot  I  should  still  have  held  a  gore  there  of  the  over- 
plus. I  deeded  her  fifty  acres,  to  the  Woods  lot.  She  claimed  the 
overplus  because  I  bounded  her  on  the  Woods  lot. 

.  "5.  State  whether  Mr.  Little  or  Mrs.  Little  denied  or  disputed  at 
that  time  the  right  of  Mr.  Steer  to  hold  what  his  deed  covered,  by 
reason  of  any  agreed  line?         If  so,  what  line? 

"Ans.  They  did  not.  I  don't  mean  to  be  understood  that  she  ad- 
mitted it.  She  claimed  that  in  my  deed  to  Maria  Smith  I  confined 
her  to  just  fifty  acres.  She  made  no  claim  by  virtue  of  any  agreed 
line." 

The  jury  returned  a  verdict  for  the  plaintifif,  which  the  defendant 
moved  to  set  aside. ^** 

Bell,  C.  J.  To  the  general  rule  that  leading  questions  shall  not 
be  put  to  a  witness,  there  are  certain  exceptions,  as  well  settled  as 
the  rule  itself,  in  which  the  judge,  in  the  exercise  of  his  discretion, 
may  permit  such  questions.  These  exceptions  are  fully  discussed  in 
the  recent  case  of  Severance  v.  Carr,  43  N.  H.  65. 

If  the  case  shows  that  the  ruling  of  the  judge  was  made  in  the 
exercise  of  his  discretionary  power  to  admit  leading  questions  in  prop- 
er cases,  the  court  will  not  revise  the  decision.  It  is  often  impractica- 
ble for  the  revising  court  to  possess  themselves  of  all  the  facts  and 
circumstances  which  might  properly  have  a  bearing  upon  the  deci- 
sion. Hopkinson  v.  Steele,  12  Vt.  584;  Parsons  v.  Huff,  38  Me.  138, 
and  cases  cited. 

If  objection  is  made  to  a  question  as  leading,  and  it  is  merely  over-  1 
ruled  or  the  question  allowed,  the  point  decided  is,  that  the  question 
is  not  leading,  and  the  party  is  entitled  to  his  exception.  No  ques- 
tion of  discretion  is  raised.  WilHams  v.  Eldridge,  1  Hill  249;  Pagfe 
V.  Parker,  40  N.  H.  53.  Where  the  question  objected  to  as  leading  is 
admitted,  the  exception  must  be  allowed,  and  the  verdict  set  aside, 
if  the  exception  is  well  founded,  since  no  discretion  is  involved  in 
that  case,  except  where  the  question  rejected  was  put  in  the  cross- 
examination.     Parsons  v.  Bridgham,  34  Me.  240. 

Still,  if  the  case,  as  stated,  shows  that  the  question  was  admissible, 
though  leading,  and  that  it  must  have  been  admitted  in  the  exercise  of 
a  proper  discretion,  the  verdict  will  not  be  disturbed. 

Such  seems  to  us  the  question  put  to  Whiting.  The  court  ruled 
that  it  was  leading,  but  that  it  might  be  put.  It  must  be  understood 
that  the  judge  allowed  it  in  his  discretion.  It  was  merely  introductory 
to  something  that  might  be  material,  and  it  was  properly  allowed. 

Questions  deemed  leading,  of  most  common  occurrence,  fall  into 
three  classes.  Willis  v.  Quimby,  31  N.  H.  485;  2  Stark.  Ev.  123; 
Greenl.  Ev.  481. 

8  8  Statement  condensed  and  part  of  opinion  omitted. 


) 


320  WITNESSES  (Ch.  2 

1.  Where  they  call  for  no  other  answer  than  a  simple  affirmative 
or  negative,  as  yes  or  no,  or  the  like,  the  witness  merely  assenting 
to  the  language  of  another.  The  witness  is  to  answer  in  his  own  lan- 
guage ;  the  counsel  is  not  allowed  to  substitute  his  own  artful  state- 
ment for  that  of  the  witness.  Budlong  v.  Van  Nostrand,  24  Barb. 
(N.  Y.)  26;  Page  v.  Parker,  40  N.  H.  53;  Dudley  v.  Elkins,  39  N. 
H.  84. 

In  the  case  of  Spear  v.  Richardson,  37  N.  H,  31,  it  was  held  that 
the  question,  "Did  he"  (the  horse  in  question)  "ever  have  a  cough?" 
was  not  leading.  It  was  not  such  as  to  instruct  the  witness  which 
way  to  answer  it.  The  form  of  the  question  was  not  suggestive  of 
a  negative  rather  than  an  affirmative  answer.  And  this  was  true. 
But  if  the  question  had  stood  alone  it  would  be  liable  to  an  objection 
which  would  equally  render  it  leading;  that  it  called  for  a  simple 
yes  or  no  to  a  question  perhaps  artfully  worded  by  counsel  to  serve 
his  purpose,  instead  of  calling  upon  the  witness  to  state  his  knowledge 
of  the  facts  in  his  own  language,  which  might  have  a  materially  dif- 
ferent import.  But  the  question  was  not  open  to  this  objection,  be- 
cause it  was  part  of  a  question  only,  the  whole  of  which,  taken  to- 
gether, did  call  for  a  statement  of  the  witness'  knowledge,  in  his  own 
words,  so  that  this  case  is  in  harmony  with  other  decisions  on  the 
subject. 

2.  Where  the  question  is  so  framed  or  so  put  as  to  suggest  to  the 
witness  the  answer  desired.  Williams  v.  Eldridge,  1  Hill  (N.  Y.)  249 ; 
People  v.  Mather,  4  Wend.  (N.  Y.)  229,  21  Am.  Dec.  122;  Parsons 
V.  Bridgham,  34  Me.  240. 

3.  Where  the  question  assumes  any  fact  which  is  in  controversy, 
so  that  the  answer  may  really  or  apparently  admit  that  fact.  Such 
are  the  forked  questions  habitually  put  by  some  counsel,  if  unchecked ; 
as,  What  was  the  plaintiff  doing  when  the  defendant  struck  him? 
the  controversy  being  whether  the  defendant  did  strike.  A  dull  or 
a  forward  witness  may  answer  the  first  part  of  the  question,  and 
neglect  the  last.  People  v.  Mather,  4  Wend.  (N.  Y.)  229,  21  Am. 
Dec.  122. 

There  is  no  form  of  question  which  may  not  be  held  leading — the 
court  being  constantly  compelled  to  look  beyond  the  form  to  the  sub- 
stance and  effect  of  the  inquiry.  If  a  question  suggests  to  the  wit- 
ness either  the  matter  or  the  language  desired,  it  is  to  be  disallowed. 
Parsons  v.  Huff,  38  Me.  138;  Hopper  v.  Commonwealth,  6  Grat. 
rVa.)  684,  cited  in  4  Wend.  247;  Page  v.  Parker,  40  N.  H.  53;  IIop- 
kinson  v.  Steel,  12  Vt.  584;  Willis  v.  Quimby,  31  N.  H.  485;  Bart- 
lett  v.  Hoyt,  33  N.  H.  165. 

We  are  well  aware  that  it  has  been  held  elsewhere  that  the  admis- 
sion of  a  leading  question  is  a  matter  resting  in  the  discretion  of  the 
judge,  and  is  no  ground  for  a  new  trial, ^'  Bliss  v.  Shuman,  47  Me. 

80  The  Attorney  General,  In  Home  v.  MacKcnzle,  6  CI.  &  Fin.  G28  (1839): 
"All  that  has  heen  advanced  on  the  other  sido  is  merely  matter  for  a  new 


Sec.  4)  EXAMINATION   OF   WITNESSES  321 

253 ;  Parsons  v.  Huff,  38  Me.  138 ;  that  it  is  a  matter  always  in  the 
discretion  of  the  court,  subject,  however,  to  be  reviewed,  and  will  not 
be  regarded  as  error  unless  the  discretion  has  been  abused.  Cope  v. 
Sibley,  12  Barb.  (N.  Y.)  522;  Budlong  v.  Van  Nostrand,  24  Barb. 
(N.  Y.)  26. 

But  we  think  neither  of  these  views  has  ever  been  entertained  here ; 
that,  on  the  contrary,  verdicts  have  often  been  set  aside  op  account 
of  erroneous  rulings  in  relation  to  the  admission  or  rejection  of  evi- 
dence objected  to  as  leading;  that  the  discretion  of  the  court  has 
not  been  regarded  as  extending  to  every  case,  but  has  been  confined  to 
the  cases  enumerated  in  Severance  v.  Carr,  43  N.  H.  65,  and  analogous 
cases;  and  that  here  no  inquiry  would  be  incidentally  made  into  any 
such  question  as  is  spoken  of  in  the  New  York  cases,  of  abuse  of 
discretion  producing  injustice.  Here  the  inquiry  is  limited  to  the 
question  whether  the  court  assumed  to  act  by  virtue  of  its  discretionary 
powers   in  a  proper   case. 

It  is  never  difficult  for  counsel  to  change  the  form  of  inquiry,  so  as 
to  obviate  any  just  objection.  It  is  always  their  duty  so  to  frame 
their  questions  at  first  as  to  leave  no  room  for  objection.  It  is  es- 
sential to  the  fairness  of  trials  that  they  should  be  held  to  make  their 
inquiries  properly.  If  a  lax  practice  is  allowed,  there  are  counsel 
whose  questions  would  be  all  leading;  knowing  they  would  be  re- 
quired to  change  their  form,  if  objection  was  made,  and  trusting  that 
the  question  and  the  discussion  would  teach  the  witness  what  was 
wanted.  In  such  case  the  mischief  is  not  obviated  by  changing  the 
form  of  the  question. 

A  strict  regard  to  the  rule  of  law  in  this  respect  is  particularly  im- 
portant in  the  case  of  depositions,  where  the  witness,  being  absent 
at  the  trial,  the  form  of  the  question  can  not  be  changed  to  obviate 
the  objection.  It  is  fair  to  presume  that  the  party  who  persists  in 
putting  a  leading  question  in  a  deposition,  after  objection  is  made, 

trial,  and  not  for  an  appeal.  The  refusal  by  the  judge  to  admit  proper  evi- 
dence is  a  fit  subject  for  a  bill  of  exceptions,  but  the  mere  mode  of  conducting 
the  trial  is  not  so,  and  by  the  practice  of  the  courts  in  this  country  could  not 
be  introduced  on  a  special  verdict,  nor  in  any  shape  brought  before  a  court  of 
error.  It  is  a  general  rule  that  leading  questions  cannot  be  put  to  a  witness ; 
but  there  are  e.xceptions  to  that  rule,  and  here  it  could  never  be  made  the 
subject  of  a  bill  of  exceptions,  that  in  some  particular  instance  a  judge  had 
permitted  leading  questions  to  be  put.  If  they  are  put  when  they  ought  not 
to  be,  and  the  jury  are  misled  by  them,  the  verdict  may  be  set  asider  but  it 
is  no  ground  of  going  to  a  court  of  error.  It  is  the  same  as  with  respect  to 
the  practice  of  turning  witnesses  out  of  court.  If  after  an  order  to  the  wit- 
nesses to  withdraw,  one  of  them  should  remain,  and  the  question  should 
arise  whether  he  might  be  examined  or  not,  a  different  practice  might  be 
adopted  by  different  judges.  Some  would  exclude  the  testimony  of  such  a  per- 
son ;  but  I\rr.  Baron  Bayley  said  that  he  would  not  do  so,  but  would  fine  the 
witness.  That  would  not  l>e  a  proper  matter  of  appeal.  It  is  a  matter  not 
of  law,  but  of  mere  regulation." 

That  the  discretion  in  permitting  leading  questions  may  be  reviewed    &e> 
Peebles  v.  O'Garu  Coal  Co..  239  111.  370.  88  N.  E.  166  (1909). 

HiNT.Ev. — 21 


322  WITNESSES  (Ch.  2 

believes  he  shall  gain  more  by  his  question  if  the  answer  is  admitted, 
than  he  shall  lose  if  the  question  and  answer  are  both  rejected.  No 
doubt  or  presumption  should  prevent  their  rejection  in  such  a  case. 

The  third  interrogatory  to  Rowell  was  free  from  objection,  as  ad- 
mitting a  mere  affirmative  or  negative  answer.  It  called  for  and  re- 
ceived an  answer  in  the  language  of  the  witness  himself.  But  it  was 
a  leading  question  because  it  suggested  to  him  that  the  answer  de- 
sired related  to  "all  but  fifty  acres  of  said  lot,"  and  assumed  that  tlie 
claim  inquired  of  related  to  that.  What  claim  was  made  was  a  mat- 
ter in  controversy.  The  question  should  have  been  modified  at  once, 
so  as  to  obviate  the  objection.  As  that  was  not  done  the  question 
and   answer  should  be  disallowed. 

The  fifth  interrogatory  was  leading,  because  it  admitted  the  answer 

yes  or  no.     If  the  material  point  had  been  what  line  was  denied,  the 

closing  part  of  the  question  would  have  prevented  its  being  leading. 

The  whole  question  together  called  for  an  answer  in  the  language  of 

I  the  witness.     But  this  interrogatory,  though  leading,  was  one  which 

I  it  was  competent  for  the  court  to  admit  in  the  exercise  of  its  dis- 

loretion.     The  object  of  the  question  manifestly  was  to  inquire  what 

was  not  said ;  and  it  is  not  easy  to  conceive  how  such  a  question  could 

be  framed  without  turning  the  witness'  attention  directly  to  the  very 

[matter  supposed  not  to  have  been  said.     A  witness  might  be  able  to 

testify  that  certain  things  were  said,  and  that  nothing  more  was  said. 

If  he  could  not  do  that,  no  amount  of  testimony  merely  of  what  was 

'said  would  prove  that  another  thing  was  not  said,  and  some  form  of 

question  embracing  the  matter  to  be  denied  must  be  admissible.     If 

it  had  been  admitted  on  this  ground  there  would  be  no  objection. 
*      *      * 

New  trial  granted. 


STATE  v.  BENNER. 

(Supreme  Judicial  Court  of  Maine,  1874.     64  Me.  267.) 

Appleton,  C.  J.®"  Numerous  exceptions  have  been  alleged  to  the 
rulings  and  instructions  of  the  justice  presiding  at  the  trial  of  the  re- 
spondent. Those  exceptions  we  propose  to  consider  and  discuss  in 
the  order  of  their  presentation. 

I.  Henry  J.  Motz  was  called  as  a  witness  by  the  state.  The  objec- 
tion is  taken  that  he  was  cross-examined  by  tlie  attorney  general,  and 
that  leading  questions  were  proposed  to  him. 

The  answers  of  a  witness,  honest  and  favorable  to  the  party  calling 
him,  will  obviously  depend  on  the  questions  proposed.  But  the  party 
calling  will  only  propose  those  favorable  to  his  interests.  His  inter- 
rogation will  naturally  be  one  sided  and  the  answers  partial  and  incom- 

»o  Statcmont  niul  ]<iirt  of  oi)liil(m  ornittod. 


Sec.  4)  EXAMINATION   OF   WITNESSES  323 

plete — the  inevitable  result  of  incomplete  and  partial  inquiry.  Interro- 
gation ex  adverso,  then,  is  indispensable — that  thereby  the  errors  of  in- 
distinctness, incompleteness,  or  incorrectness  may  be  removed  and  the 
material  facts  developed  fully,  distinctly  and  correctly. 

The  witness  called,  being  favorable  to  tlie  party  calling  him  and 
dishonest,  the  necessity  of  interrogation  as  a  means  of  extracting  the 
truth  is  at  once  perceived,  and  its  value  indefinitely  increased.  Is  the 
witness  indistinct,  the  needed  inquiries  remove  all  indistinctness.  Is  he 
incomplete,  interrogation  is  the  natural  and  obvious  mode  of  obtaining 
the  desired  fullness  and  completeness.  Is  he  incorrect,  inquiry  is  the 
only  way  of  detecting  and  rectifying  incorrectness.  Important  as  is  the 
whole  truth  to  correct  decision,  its  attainment  will  be  endangered  unless 
the  right  of  interrogation  and  cross-interrogation  be  conceded  to  the 
parties  litigant  to  enable  them  to  elicit  such  facts  as  from  inadvertence, 
want  of  memory,  inattention,  sinister  bias,  or  intentional  mendacity 
may  have  been  omitted. 

But  it  may  happen  that  the  witness  may  be  adverse  in  sjTnpathy  and 
interest  to  the  part}'  by  whom  he  is  called.  Cross-examination  of  an 
opponent's  witness  is  allowable.  Why?  Because,  being  called  by  him, 
it  has  been  imagined  that  there  was  some  tie  of  sympathy  or  interest, 
which  would  induce  partialit}-  on  the  part  of  the  witness  in  favor  of 
the  part}',  who  called  him.  If  the  witness  is  from  any  cause  adverse 
to  the  part}'  calling  him,  the  same  reasoning  which  authorizes  and  sanc- 
tions cross-examination,  more  or  less  rigorous,  equally  requires  it  when 
the  party  finds  that  the  witness,  whom  the  necessities  of  his  case  has 
compelled  him  to  call,  is  adverse  in  feeling,  is  reluctant  to  disclose  what 
he  knows,  is  evasive  or  false.  Important  as  interrogation  may  be,  if 
the  witness  is  friendly,  to  remove  uncertainty  and  indistinctness,  and 
to  give  fullness  and  clearness,  doubly  important  is  it,  if  the  witness  be 
dishonest  and  adverse,  to  extract  from  reluctant  lips,  facts  concealed 
from  sym.pathy,  secreted  from  interest,  or  v.-ithheld  from  dishonesty. 
Cross-examination  may  be  as  necessar}'  to  ehcit  the  truth  from  one's 
own,  as  from  one's  opponent's  witness.  When  the  necessity  exists, 
equal  latitude  should  be  allowed  in  the  one  case  as  in  the  other.  The 
occasion  for  the  exercise  of  this  right  must  be  determined  by  the  jus- 
tice presiding.  It  can  be  by  no  one  else.  Its  allowance  is  a  matter  of 
discretion,  and  not  the  subject  of  exception. 

The  presiding  justice,  finding  Motz  to  be  an  unwilling  witness  for 
the  state,  allowed  leading  questions  to  be  proposed;  and  permitted 
him  to  be  cross-examined  by  the  counsel  calling  him.  This  was  in 
manifest  furtherance  of  justice  and  in  entire  accordance  with  judicial  i 
decisions.  Moody  v.  Rowell,  17  Pick.  (Mass.)  490,  28  Am.  Dec.  317;  ' 
York  V.  Pease,  2  Grav  (Mass.)  2S2 ;  Green  v.  Gould,  3  Allen  (Mass.^ 
465. 

II.  Where  a  witness,  called  by  a  party,  appears  adverse  in  interest  to  \ 
the  party  calling  him,  the  presiding  justice  may,  in  his  discretion,  per- 
mit the  part}'  so  calling  him  to  ask  leading  questions.    This  permission 


324  WITNESSES  (Ch.  2 

is  discretionar}'  on  his  part,  and  not  subject  to  exception.  The  presid- 
ing judge  seeing  and  hearing  the  witness,  and  observing  his  manner, 
is  best  able  to  determine  whether  he  is  hostile  to  the  party  calling  him. 
In  the  present  case,  the  presiding  justice  did  determine  that  Motz  was 
an  unwilling  witness,  and  one  to  whom  leading  questions  might  proper- 
ly be  proposed  and  his  conclusion  is  not  open  to  revision.  ♦  *  * 
Exceptions  overruled.** 


ANGELL  V,  ROSENBURY. 

(Supreme  Court  of  Michigan,  1864.     12  Mich.  241.) 

The  plaintiff,  an  assignee  for  the  benefit  of  creditors,  brought  tres- 
pass against  the  sheriff  for  taking  the  assigned  goods  under  process 
against  the  assignor.  The  defense  set  up  was  that  the  assignment 
was  fraudulent.     The  plaintiff  recovered  in  the  court  below.® ^ 

Christiancy,  J,  *  *  *  The  next  error  assigned  is  the  rejection 
of  the  question  put  to  the  witness  Hinman,  asking  him  to  state  any 
reason  or  circumstance  which  led  him  to  give  particular  attention  to 
the  four  notes.  To  understand  the  nature  of  this  objection,  it  is  nec- 
essary to  see  how  the  question  arose.  Hinman  had  already  testified 
that,  in  August,  1855,  he  was  applied  to  by  the  plaintiff  and  Wilbur 
to  aid  in  getting  a  compromise  with  the  New  York  creditors.  He  told 
them  that,  to  enable  him  to  do  so,  they  must  make  a  statement  of 
their  matters ;  and  they  showed  him  four  notes,  as  the  basis  of  the 
plaintiff's  claim.  In  this  stage  of  the  trial,  as  it  would  seem,  while 
Hinman  was  still  under  examination  as  a  witness,  the  plaintiff,  under 
a  notice  from  the  defendant  to  produce  the  notes,  produced  the  five 
notes  which  I  have  already  described.  The  witness,  after  looking  at 
the  notes,  testified :  "I  can  not  state  whether  the  notes  now  produced 
are  the  same  which  were  shown  me  by  the  plaintiff  or  not.  If  they 
are,  I  was  mistaken  in  the  date.  My  recollection  is,  that  the  four  $1,000 
notes  shown  me  were  dated  June  15th,  1842.  The  same  notes  were 
soon  afterwards  shown  me  at  the  office  of  Harmon.  The  $750  note 
has  the  same  appearance  as  the  note  just  shown  me.  The  other  four 
differ,  in  my  recollection,  in  the  appearance  of  the  paper  and  date. 
Those  first  shown  me  were  clean.  These  are  more  dilapidated  and 
worn.  I  gave  the  four  notes  particular  attention  as  to  their  appear- 
ance, the  ink,  and  the  edges."    He  was  then  asked,  on  the  part  of  the 

91  The  judge  may  conduct  the  examination  of  a  witness  and  may  put  lend- 
ing questions,  but  he  should  not  conduct  the  examination  in  that  manner 
wh(!re  It  would  be  Improper  to  permit  counsel  to  do  so.  State  v.  Crotts,  22 
Wash.  245,  CO  Pac.  40.3  (IIJOO). 

For  a  collection  of  the  cases  on  the  right  of  the  judge  to  call  and  examine 
witncs.ses  and  put  leading  questions,  so(>  nates  to  South  Coviu^'ton  &  C.  St. 
Rv.  Co.  V.   Stroh,  57  L.  R.  A.  875  (1902);    Parker  v.  State,  L.  R.  A.  1910* 
1190  (19ir5). 

«'  Sfntoinont  condensed  ana  opinion  on  other  points  omitted. 


Sec.  4)  EXAMINATION  OF  WITNESSES  325 

defendant:  "Will  you  state  any  reason  or  circumstance  which  led  you 
to  do  so?"  This  was  objected  to,  but  the  grounds  are  not  stated,  and 
the  question  was  rejected. 

We  think  the  rejection  of  this  question  was  erroneous.  It  was  very 
important  in  determining  the  credit  to  be  given  to  the  witness's  recol- 
lection, to  know  whether  any,  or  what  reason,  existed  at  the  time  to  in- 
duce the  witness  to  give  particular  attention  to  the  appearance  of  the 
notes.  The  value  of  his  recollection  would  depend  entirely  upon  the 
degree  of  attention  with  which  he  observed  the  facts,  and  the  reasons 
which  operated  upon  his  mind  to  excite  that  attention,  and  to  fix  the 
facts  in  his  memory.  He ,  should,  therefore,  have  been  allowed  to 
state  any  facts  °^  which  had  that  effect,  whether  relevant  to  the  issue  or 
not.  The  rejection  of  the  question  was  unfair,  both  to  the  defendant 
and  the  witness.  We  see  nothing  objectionable  in  the  form  or  substance 
of  the  question.  It  was  not  leading;  and  the  generality  of  its  form 
was  in  some  measure  necessary  to  avoid  suggesting  any  particular  an- 
swer.    *     *     * 

Reversed. 


COMMONWEALTH  v.  PHELPS. 

(Supreme  Judicial  Court  of  RIassacliusetts,  1858.     11  Gray,  73.) 

Indictment  on  St.  1855,  c.  215,  §  17,  for  being  a  common  seller  of 
spirituous  and  intoxicating  liquors. 

At  the  trial  in  the  court  of  common  pleas  in  Hampden,  Morris, 
J.,  allowed  the  district  attorney,  against  the  defendant's  objection,  to 
ask  witnesses  for  the  commonwealth  to  recur  in  their  own  minds  to 
their  testimony  before  the  grand  jury,  and  then  state  when  and  how 
often  they  had  obtained  intoxicating  liquors  from  the  defendant 

Shaw,  C.  J.®*  1.  It  is  not  a  regular  mode  of  assisting  the  recol- 
lection of  a  witness  to  recur  to  his  recollection  of  his  testimony  before 
the  grand  jury.  If  it  was  not  true  then,  it  is  not  true  now;  if  it  was 
true  then,  it  is  true  now,  and  can  be  testified  to  as  a  fact.  Of  what 
importance  is  the  fact  that  he  had  a  memorandum  to  aid  him  in  tes- 
tifying before  the  grand  jury?  To  ask  what  he  testified  to  before  the 
grand  jury  has  no  tendency  to  refresh  his  memory.  The  fact  of  his 
having  testified  to  it  then  is  not  testimony  now.  It  is  an  attempt  to 
substitute  former  for  present  testimony.     *     *     *  ®'* 

93  But  for  this  purpose  the  witness  should  not  be  allowed  to  detail  prejudi- 
cial hearsay  statements.  Detroit  &  M.  R.  Co.  v.  Van  Steinburg,  17  Mich.  99 
(ISGS). 

94  Statement  condensed  and  part  of  opinion  omitted. 

9  5  But  see  Beaubien  v.  Cicotte,  12  Mich.  459  (1864),  where  counsel  were  al- 
lowed to  call  the  attention  of  a  witness  to  the  notes  of  his  former  testimony 
where  he  had  apparently  forgotten  a  date. 


326  WITNESSES  (Ch.  2 

^     PEOPLE  V.  KELLY. 

(Court  of  Appeals  of  New  York,  1SS9.     113  N.  Y.  647,  21  N.  E.  122.) 

RuGER,  C.  J.^^  The  defendant  was  indicted  for  the  crime  of  mur- 
der in  the  first  degree,  for  killing  one  Eleanor  O'Shea,  by  striking  her 
upon  the  head  with  a  hammer,  at  the  town  of  Geneva,  in  the  county  of 
Ontario,  on  the  6th  day  of  November, 'ISSS.  At  a  trial  in  the  court  of 
oyer  and  terminer,  held  in  said  county  in  December,  1888,  the  defend- 
ant was  convicted  of  the  crime  charged,  and,  in  pursuance  of  the  pro- 
visions of  the  Code  of  Criminal  Procedure,  as  amended  by  chapter  493 
of  the  Laws  of  1887,  has  appealed  directly  to  this  court  from  the 
judgment  entered  upon  his  conviction.  *  *  *  The  only  other  point 
made  by  the  appellant  of  any  importance  is  that  raised  by  the  objec- 
tion to  questions  put  to  the  witness  Mahar  by  the  people,  respecting 
testimony  preiviously  given  by  him  before  the  committing  magistrate 
and  the  grand  jury.  Mahar  had  omitted  to  testify  in  detail  to  the  move- 
ments of  Kelly  between  the  time  when  the  deceased  returned  to  the 
kitchen  and  the  infliction  of  the  fatal  blow.  With  the  obvious  and 
avowed  purpose  of  refreshing  his  recollection,  the  district  attorney 
asked  whether  he  had  not  previously  sworn  that  Kelly  moved  coolly 
across  from  the  north-east  to  the  south-west  corner  of  the  room, 
where  O'Shea  stood,  and  also  whether  Kelly  did  not  then  address  her 
in  a  low  and  quiet  tone  of  voice.  The  witness  admitted  that  he  so 
testified,  and,  upon  the  further  question  as  to  whether  that  was  the 
fact,  he  answered  that  it  was.  This  was  certainly  quite  material  evi- 
dence, and,  if  it  was  true,  was  competent  on  the  part  of  the  people. 
The  fact  that  he  omitted  to  testify  to  it  on  his  direct  examination 
must  be  ascribed  either  to  his  forgetfulness  or  a  disposition  to  befriend 
the  accused  by  its  suppression.  He  had  given  no  evidence  conflict- 
ing with  his  statement,  and  it  tended  in  no  degree  to  contradict 
his  testimony.  The  manner  in  which  it  was  drawn  out  might  af- 
fect the  credibility  of  the  witness  with  the  jury;  but  having  affirmed 
the  truth  of  the  facts,  aside  from  his  admissions  as  to  his  testimony 
on  the  previous  occasion,  it  was  the  province  of  the  jury  to  give  such 
credit  to  his  evidence  as  it  was  entitled  to.  We  are  of  the  opinion, 
within  the  rule  laid  down  in  Bullard  v.  Pearsall,  53  N.  Y.  230,  that  it 
was  proper  for  the  people  to  refresh  the  recollection  of  the  witness  in 
the  manner  pursued  in  this  case.     ♦     *     ♦ 

Affirmed." 

»«  Part  of  opinion  omitted. 

0'  Soe  comnK'Uts  on  tliis  rase  in  Tutnani  v.  TT.  S.,  3G2  U.  S.  CS7,  16  Sup. 
Ct.  92.3,  40  L.  Ed.  1118  (1896).  See,  also,  Melliulsh  v.  Collier,  15  Ad.  &  Ellis 
(N.  S.)  878  (1850).    Compare  Cora.  v.  Welsh,  4  Gray  (Mass.)  535  (1855). 


Sec.  4)  EXAMINATION   OF   WITNESSES  327 

^    SANDWELL  v.  SANDWELL. 

(Nisi  Prius,  1697.     Holt,  295.) 

Case  for  scandalous  words. 

Holt,  C.  J.,  said :  Where  a  witness  swears  to  a  matter,  he  is  not 
to  read  a  paper  for  evidence,  though  he  may  look  upon  it  to  refresh 
his  memory.  But  if  he  swears  to  words,  he  may  read  it,  if  he  swears 
he  presently  committed  it  to  writing,  and  that  those  are  the  very  words. 


LAWES  V.  REED. 

(Court  of  Assizes,  1835.     2  Lewin,  152.) 

Alderson,  B.,  held  in  this  case  that  a  witness  might  refresh  his 
memory  from  the  notes  of  counsel  taken  on  his  brief  at  a  former  trial ; 
and  he  mentioned  the  case  of  Balme  v.  Hutton,  where  a  witness  had 
been  allowed  to  refresh  his  memory  from  a  note  taken  by  Mr.  Baron 
Parke. 

He,  however,  observed,  that  the  witness  must  afterwards  speak  from 
a  refreshed  memory,  and  not  merely  from  the  notes.®® 

9  8  Sir  Gregory  Lewin  adds  the  following  note  to  this  case: 

"Where  the  object  is  to  revive  in  the  mind  of  the  witness  the  recollection  of 
facts  of  which  he  once  had  knowledge,  it  is  difficult  to  understand  why  any 
means  should  be  excepted  to  whereby  that  object  may  be  attained.  Whether  in 
any  particular  case  the  witness's  memory  has  been  refreshed  by  the  document 
referred  to,  or  he  speaks  from  what  the  doaiment  tells  him,  is  a  question  of 
fact  open  to  observation,  more  or  less,  according  to  the  circumstances.  But 
if,  in  truth,  the  memory  has  been  refreshed,  and  he  is  enabled  in  consequence 
to  speak  to  facts  with  which  he  was  once  familiar,  but  which  afterwards 
escaped  him,  it  cannot  signify  in  effect  in  what  manner  or  by  what  means 
those  facts  were  recalled  to  his  recollection." 

"Common  experience  tells  every  man,  that  a  very  slight  circumstance,  and 
one  not  in  point  to  the  existing  inquiry,  will  sometimes  revive  the  history  of 
a  transaction  made  up  of  many  circumstances.  The  witnesses  who  come  into 
the  box  to  speak  to  facts  of  ancient  date  are  generally  schooled  beforehand, 
and  the  means  employed  to  refresh  their  memory  are  such  as  are  deemed  best 
calculated  to  accomplish  that  end.  These  persons  afterwards  swear  to  the 
facts  from  their  own  knowledge  and  recollection  of  them,  and  their  testi- 
mony is  received  as  a  thing  of  course.  Why,  then,  if  a  man  may  refresh 
his  memory  by  such  means  out  of  court,  should  he  be  precluded  from  doing 
so  when  he  is  under  examination  in  court?  Bayley,  J.,  held,  that  a  witness 
might  refresh  his  memory  from  a  copy  of  a  shop  book;  he  having  been  origi- 
nally acquainted  with  the  facts  themselves.  1  Lewin,  C.  C.  101.  Slarkie  on 
that  occasion  referred  the  learned  judge  to  the  case  of  Tanner  v.  Taylor, 
Starkie  on  Ev.  bk.  2,  p.  128,  1st  Ed.  (1751),  where  Legge,  B.,  held  to  the  same 
effect. 

"In  a  modern  case,  however,  there  is  a  dictum  of  Patteson,  J.,  which  di- 
rectly contravenes  the  doctrine  here  contended  for,  and  is  also  opposed  to 
the  cases  in  the  text.  That  learned  Judge  is  reported  to  have  said:  'The 
copy  of  an  entry  not  made  by  the  witness  contemporaneously  does  not  seem 
to  me  to  be  admissible  for  the  purpose  of  refreshing  a  witness's  memory. 
The  rule  is,  that  the  best  evidence  must  be  produced ;  and  that  rule  appears 


328  WITNESSES  (Ch.  2 

WELLMAN  V.  JONES. 

(Supreme  Court  of  Alabama,  1S99.     124  Ala.  580,  27  South.  416.) 

DowDELL,  J.®*  The  contract  here  sued  on  is  set  out  in  the  com- 
plaint as  follows:  "January  13,  1893.  Huntsville,  Ala.  We,  the  un- 
dersigned, jointly  and  individually  covenant  and  agree  with  Henry  L. 
Jones  that,  if  he  will  place  his  brother,  John  A.  R.  Jones,  in  the  Hagey 
Institute,  in  the  city  of  Huntsville,  Ala.,  to  be  treated  as  a  patient  ad- 
dicted to  the  excessive  use  of  morphine  and  chloral,  and  the  said  Henry 
L.  Jones  will  pay  in  cash  the  sum  of  one  hundred  dollars  to  the  proper 
officer  of  the  Hagey  Institute,  that  we  will  return,  on  demand,  to  the 
said  Henry  L.  Jones,  the  said  sum  of  one  hundred  dollars,  provided 
the  said  John  A.  R.  Jones  is  not  fully  and  permanently  cured  by  the 
treatment  of  said  Hagey  Institute  of  the  use  and  habit  of  morphine 
and  chloral."     *     *     * 

The  court  also,  against  the  objection  and  exception  of  the  defendant, 
after  proof  of  loss  of  the  original  contract,  permitted  plaintiff's  wit- 
ness Matthews  to  refer  to  that  portion  of  the  complaint  setting  out  the 
contract  as  a  memorandum  to  refresh  tlie  witness'  memory,  and  also 
permitted  the  same  to  be  read  in  evidence  as  a  memorandum  of  the 
contract.  The  complaint  was  drawn  by  plaintiff's  attorney,  and  this  was 
some  time  after  the  loss  of  the  original  contract.  The  witness  testified 
that  some  time  before  the  suit  was  brought  he  was  at  the  office  of 
plaintiff's  attorney,  and  there  dictated  his  recollection  of  the  .contents 
of  the  lost  contract,  and  the  attorney  wrote  the  same  down.  He  did 
not  identify  tlie  paper  handed  witness,  which  was  the  complaint,  as 
being  the  one  written  at  his  dictation  by  the  attorney.  This  witness, 
speaking  with  reference  to  the  alleged  memorandum,  said :  "I  mean 
to  say  that  these  are  the  words  that  I  gave  Judge  Richardson  to  put 
down.  It  is  not  my  testimony  that  this  is  the  paper  [referring  to  the 
complaint  which  he  then  held  in  his  hand]  that  was  before  me  at 
that  time.  I  do  not  know  whether  it  is  the  same  paper  or  not.  I  only 
testify  to  portions  of  the  contract  according  to  my  recollection."  The 
original  contract  is  shown  to  have  been  placed  in  the  hands  of  this  wit- 
ness under  date  of  its  execution,  January  13,  1893 ;  but  it  is  not  shown 
how  long  since  he  had  seen  it  when  he  dictated  his  recollection  of  its 
contents  written  down  by  plaintiff's  attorney.  The  complaint  was 
filed  January  4,  1894,  a  year  after  the  execution  of  the  contract.  Pre- 
sumably months  had  elapsed  at  the  time  of  the  dictation  since  the 
witness  had  seen  the  contract.     Under  this  state  of  the  evidence,  the 

to  mo  to  be  applif^able  whclluT  a  papor  bo  priulucod  as  evidence  In  itself  or 
used  merely  to  refresh  thf  memory.'    Burton  v.  Pliiminer,  2  A.  «&  E.  341  (1S.'54)." 

lo  State  V.  Kwialkow.skl,  Srj  N.  J.  Law,  (\r,0,  85  Atl.  200  (10'2),  it  was  held 
to  be  no  objection  to  the  testimony  of  a  witness  that  he  had  examined  certain 
notes  and  memoranda  before  aiipearinj?  to  testify. 

»»  Statement  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION   OP   WITNESSES  329 

paper,  not  having  been  sufficiently  identified  as  a  memorandum  made 
by  the  witness,  or  by  another  at  his  dictation,  could  not  be  used  for 
the  purpose  of  refreshing  witness'  memory  as  to  the  contents  of  the 
lost  contract,  and  certainly  was  not  admissible  in  evidence  as  a  memo- 
randum of  the  contents  of  the  lost  contract.  Maxwell  v.  Wilkinson, 
113  U.  S.  656,  5  Sup.  Ct.  691,  28  L.  Ed.  1037 ;  Calloway  v.  Varner,  17 
Ala.  541,  54  Am.  Rep.  78;  Jaques  v.  Horton,  76  Ala.  238;  Acklen's 
Ex'r  V.  Hickman,  63  Ala.  494,  35  Am.  Rep.  54;  15  Am.  &  Eng.  Enc. 
Law,  263.  *  ♦  * 
Reversed.^"" 


DOE  dem.  CHURCH  et  al.  v.  PERKINS  et  aL 
(Court  of  King's  Bench,  1790.     3  Durn.  &  E.  749.) 

The  motion  for  a  new  trial  came  on  the  next  day ;  when  it  appeared 
from  the  report  that  the  title  of  the  lessors  of  the  plaintiff  to  the  sev- 
eral premises  for  which  the  ejectment  was  brought  was  not  in  dis- 
pute ;  but  that  the  only  question  was  at  what  time  of  the  year  the 
annual  holdings  of  the  several  tenants  expired.  That  Aldridge,  the 
witness,  whose  testimony  was  objected  to,  went  round  with  the  receiver 
of  the  rents  to  the  different  tenants,  whose  declarations  respecting 
the  times  when  they  severally  became  tenants  were  minuted  down 
in  a  book  at  the  time ;  some  of  the  entries  therein  being  made  by 
Aldridge,  and  some  by  the  receiver.  When  Aldridge  was  examined 
the  original  book  was  not  in  court ;  but  he  spoke  concerning  the  dates 
of  the  several  tenancies  from  extracts  made  by  himself  out  of  that  book, 
confessing  upon  cross-examination  that  he  had  no  memory  of  his 
own  of  those  specific  facts ;  but  that  the  evidence  he  was  giving  as  to 

100  In  state  v.  Patton,  255  Mo.  245,  164  S.  W.  223  (1913),  a  witness  having 
apparently  forgotten  some  of  the  facts,  the  prosecuting  attorney  read  to  him 
from  a  paper  not  otherwise  identified  which  purported  to  be  the  minutes  of 
his  testimony  before  the  grand  jury.  Faris,  J.:  "The  last  clause  of  the  above 
statement  is  not  in  accord  with  the  view  taken  by  Mr.  Wigmore,  the  learned 
editor  of  the  sixteenth  edition  of  Greenleaf  on  Evidence  (1  Greenleaf  on  Evi- 
dence [16th  Ed.]  439c),  where  it  is  said  that  the  memory  of  the  witness  may 
be  refreshed  by  any  paper,  whether  the  same  is  known  by  the  witness  to 
be  correct  or  not.  This  view  of  Mr.  Wigmore  has  been  followed  by  our  St. 
Louis  Court  of  Appeals.  Eberson  v.  Colonial  Investment  Co.,  130  Mo.  App. 
loc.  cit.  .308  [109  S.  W.  62  (1908)].  We  do  not  find  this  statement  of  the  learned 
author  and  of  the  Court  of  Appeals  to  be  borne  out  either  by  the  cases  which 
he  cites  to  support  it,  or  by  the  great  weight  of  the  authorities  which  we  have 
examined,  and  a  few  of  which  we  cite.  Wellman  v.  Jones,  124  Ala.  5S0,  27 
South.  416  (1899);  Acklen's  Ex'r  v.  Hickman,  63  Ala.  4W,  3o  Am.  Rep.  54 
(1878);  Doyle  v.  Illinois  Cent.  R.  Co.,  113  111.  App.  532  (1904);  Dryden  v. 
Barnes,  101  Md.  346,  61  Atl.  342  (1905) ;  Davis  v.  Allen.  9  Gray  (Mass.)  322 
(1857);  Fritz  v.  Burriss,  41  S.  C.  149.  19  S.  E.  304  (1S94);  Greiner  v.  Insur- 
ance Co.,  40  Pa.  Super.  Ct.  379  (1909)  ;  40  Cyc.  2458.  The  ease  with  which, 
fts  Prof.  Muensterburg  tells  us,  the  human  mind  is  influenced  by  suggestion, 
would  seem  to  form  an  insuperable  psychological  objection  to  the  use  of  data 
for  this  purpose,  of  the  correctness  of  which  the  witness  is  ignorant." 


330  WITNESSES  (Ch.  2 

those  facts  was  founded  altogether  upon  the  extracts  which  he  had 
made  from  the  above  mentioned  book.  This  evidence  was  objected 
to  at  the  time  on  the  part  of  the  defendants,  upon  the  ground  that,  as 
the  witness  did  not  pretend  to  speak  to  those  facts  from  his  own  recol- 
lection, he  ought  not  to  be  permitted  to  give  evidence  from  any  ex- 
tracts, but  that  the  original  book  from  whence  they  were  taken  ought 
to  be  produced.  The  learned  judge  however  being  of  a  different  opin- 
ion, the  evidence  was  admitted,  and  the  plaintiff  had  a  verdict.^ 

On  the  following  day  Mr.  Justice  Buller  read  another  IMS.  note  of 
Tanner  v.  Taylor,  Hereford  Spring  Assizes  1756.  "In  an  action  for 
goods  sold,  the  witness  who  proved  tlie  delivery  took  it  from  an  ac- 
count which  he  had  in  his  hand,  being  a  copy  ^  as  he  said,  of  the  day 
book,  which  he  had  left  at  home;  and  it  being  objected  that  the  orig- 
inal ought  to  have  been  produced,  Mr.  Baron  Legge  said,  that  if  he 
would  swear  positively  to  the  delivery  from  recollection,  and  the  paper 
was  only  to  refresh  his  memory,  he  might  make  use  of  it.  But  if  he 
could  not  from  recollection  swear  to  the  delivery  any  further  than 
as  finding  them  entered  in  his  book,  then  the  original  could  have  been 
produced ;  and  the  witness  saying  he  could  not  swear  from  recollection 
the  plaintiff  was  nonsuited."    And 

Lord  Kenyon,  C.  J.,  said  that  the  rule  appeared  to  have  been  clearly 
settled,  and  that  every  day's  practice  agreed  with  it.  And  that  com- 
paring this  case  with  the  general  rule,  the  court  were  clearly  of  opinion 
that  Aldridge  the  witness  ought  not  to  have  been  permitted  to  speak 
to  facts  from  the  extracts  which  he  made  use  of  at  the  trial. 

Per  Curiam.     Rule  absolute  for  a  new  trial.^ 


MAUGHAM  V.  HUBBARD  et  al. 
(Court  of  King's  Bench,  1828.     8  Barn.  &  C.  14.) 

Assumpsit  for  money  had  and  received  Plea,  not  guilty.  At  the 
trial  before  Lord  Tenterden,  C.  J.,  at  the  Middlesex  sittings  after  last 
term,  it  appeared  that  the  action  was  brought  to  recover  from  the  as- 
signees of  the  bankrupt  £20  paid  by  the  plaintiff  to  the  bankrupt  before 
his  bankruptcy.  The  bankrupt  being  called  as  a  witness  on  the  part 
of  the  plaintiff  stated,  that  he  had  dealt  with  the  plaintiff  several  years; 
that  in  November  1822,  £20  was  received  from  the  plaintiff,  which 
was  not  carried  to  the  account.    A  rough  cash-book  kept  by  the  plain- 

1  Statement  condensed.  During  tlie  course  of  the  argument  Lord  Kenyon 
read  n  manuscript  note  of  the  case,  reported  anonymously  In  Ambler,  252,  ante, 
p.  317. 

2  See  Folsora  v.  Apple  River  Log-Driving  Co.,  41  Wis.  602  (1S77),  where  a 
witness  was  allowed  to  use  a  copy  of  a  mciiioranduin  made  by  him. 

8  In  Beech  v.  Jones,  5  C.  B.  G'JG  (IS'IS),  i(  was  held  that  a  witness  who  had 
no  present  recolleetion  could  not  testify  from  his  examination  of  an  entry  In 
M  I)ook  not  produced  in  court. 


Sec.  4)  EXAMINATION   OF   WITNESSES  331 

tiff  was  then  put  into  his  hands;  in  which  there  was  the  following 
entry:  "4th  of  November  1822.  Dr.— R.  Lancaster.  Check  £20  R.  L." 
The  bankrupt  then  said,  "The  entry  of  i20  in  the  plaintiff's  book 
has  my  initials,  written  at  the  time;  I  have  no  recollection  that  I  re- 
ceived the  money ;  I  know  nothing  but  by  the  book ;  ^but  seeing  my 
initials,  I  have  no  doubt  that  I  received  the  money."  It  was  contended 
that  the  paper  on  which  this  entry  was  made  ought  to  have  been  stamped 
as  a  receipt;  but  Lord  Tenterden,  C.  J.,  was  of  opinion,  that  though 
it  was  not  itself  admissible  in  evidence  to  prove  the  payment  of  the 
money  the  witness  might  use  it  to  refresh  his  memory;  and  that  his 
having  said  that  he  had  no  doubt  that  he  received  the  money  was  suffi- 
cient evidence  of  the  fact.  A  verdict  was  found  for  the  plaintiff, 
but  liberty  was  reserved  to  the  defendant  to  move  to  enter  a  nonsuit,  if 
the  Court  should  be  of  opinion  that  this  evidence  ought  not  to  have 
been  received. 

Lord  Tenterden,  C.  J.  In  order  to  make  the  paper  itself  evidence 
of  the  receipt  of  the  money  it  ought  to  have  been  stamped.  The  con- 
sequence of  its  not  having  been  stamped  might  be,  that  the  party  who 
paid  the  money,  in  the  event  of  the  death  of  the  person  who  received 
it,  would  lose  his  evidence  of  such  payment.  Here  the  witness,  on 
seeing  the  entry  signed  by  himself,  said  that  he  had  no  doubt  that  he 
had  received  the  money.  The  paper  itself  was  not  used  as  evidence 
of  the  receipt  of  the  money,  but  only  to  enable  the  witness  to  refresh 
his  memory ;  and  when  he  said  that  he  had  no  doubt  he  had  received 
the  money  there  was  sufficient  parol  evidence  to  prove  the  payment.* 

Bayley,  J.  Where  a  witness  called  to  prove  the  execution  of  a 
deed  sees  his  signature  to  the  attestation,  and  says  that  he  is,  there- 
fore, sure  that  he  saw  the  party  execute  the  deed,  that  is  a  sufficient 
proof  of  the  execution  of  the  deed,  though  the  witness  add  that  he  has 
no  recollection  ^  of  the  fact  of  the  execution  of  the  deed. 

Rule  refused. 

*  In  the  report  of  this  case  in  2  Man.  &  Ry.  5,  the  opinion  of  Lord  Tenterden 
is  given  as  follows:  "The  bankrupt,  upon  looking  at  the  plaintiff's  books, 
said,  that  seeing  his  own  initials  to  the  receipt  there,  he  had  no  doubt  what- 
ever that  he  had  received  the  money.  I  think  that  amounted  to  a  statement 
that  he  knew  and  recollected,  independently  of  the  book,  that  the  money  had 
been  paid  to  him.  If  that  be  so,  the'  question  with  respect  to  the  stamp  be- 
comes immaterial,  because  then  the  book  may  be  regarded  as  used  only  for 
the  purpose  of  refreshing  the  witness's  memory,  which  it  was  allowable  to 
do,  though  it  had  no  stamp.  If  it  had  been  wished  to  use  the  book  as  evidence 
per  se,  it  would  undoubtedly  have  required  a  receipt  stamp,  because  the 
entry  amounted  to  a  receipt  in  meaning." 

s  Where  the  witness  has  no  present  recollection,  he  must  be  able  to  tes- 
tifv  that  the  facts  were  correctlv  set  down  in  the  memorandum.  Diamond 
Gliie  Co.  v.  Wietzychowski,  227  111.  338,  81  N.  E.  392  (1907). 


332  WITNESSES  (Ch.  2 

HAVEN  V.  WENDELL  et  al. 
(Supreme  Judicial  Court  of  New  Hampshire,  1S40.     11  N.  H.  112.) 

Assumpsit,  on  a  bank  check,  drawn  by  Isaac  Wendell,  and  indorsed 
by  the  defendants,  who  are  partners  under  the  firm  of  A.  &  J.  Wendell. 

There  was  also  a  count  for  money  lent. 

On  the  trial  the  plaintiff  produced  the  bank  check  mentioned  in  the 
first  count,  the  signature  and  indorsement  of  which  were  admitted.  He 
also  produced  as  a  witness,  John  Have,  who  testified  that  he  had  a  con- 
versation with  Abraham  Wendell,  one  of  the  defendants,  on  the  pave- 
ment in  front  of  the  New  Hampshire  Bank,  on  the  subject  of  this 
check,  some  time  after  the  failure  of  the  defendants.  He  could  not 
now  recollect  the  particulars  of  that  conversation,  or  when  it  took 
place,  further  than  that  said  Wendell  said  he  considered  himself  holden 
as  indorser  thereon ;  and  that  he  the  witness  supposing  the  facts  then 
stated  might  be  useful  to  the  plaintiff,  went  immediately  into  the  bank, 
and  made  a  memorandum  of  them,  in  writing,  which  he  gave  to  the 
plaintiff.  That  the  conversation  was  stated  when  tlie  matter  was 
fresh  in  his  recollection ;  and  if  he  had  been  called  upon,  soon  after, 
to  testify  upon  the  subject,  he  should  have  sworn  from  memory  to 
every  particular  there  stated. 

A  paper  being  shown  to  him,  he  said  that  was  the  memorandum, 
but  he  could  not  from  reading  it  undertake  to  say  that  he  now  recol- 
lected the  facts,  or  knew  them,  otherwise  than  by  finding  them  in  his 
hand  writing ;  but  he  had  no  doubt  they  were  true,  and  that  he  should 
have  sworn  to  them  from  recollection  at  or  near  the  time.  The  mem- 
orandum referred  to  was  as  follows : 

"Abraham  Wendell  said  to  me,  this  30th  day  of  October,  1828,  that 
he  left,  some  time  since,  with  William  Haven,  cashier  of  the  New 
Hampshire  Bank,  a  check,  signed  by  Isaac  Wendell,  on  the  Branch 
Bank,  Portsmouth,  drawn  payable  in  a  few  days,  which  check  was  in 
favor  of  Abraham  and  Jacob  Wendell,  and  indorsed  by  them ;  that 
said  William  Haven  paid  them  the  amount  of  said  check,  in  a  note 
against  their  mother  and  in  cash ;  tliat  at  or  before  the  time  the  check 
was  due,  he  called  on  Mr.  Have,  and  requested,  as  from  his  brother 
Isaac,  that  he  would  delay  for  a  few  days  longer  the  presentation  of 
the  check,  which  he  consented  to,  during  which  delay  they  all  failed; 
that  he  now  considered  the  firm  of  A.  &  J.  Wendell  held  as  indorsers 
of  said  check.  J.  H." 

Said  memorandum,  with  the  testimony  of  the  witness,  as  before 
mentioned,  was  admitted  as  evidence;  to  which  the  defendants  except- 
ed, and  moved  for  a  new  trial. 

Parker,  C.  J.®  If  a  witness  may  use  a  memorandum,  made  by  him 
at  the  time  when  the  facts  are  alleged  to  have  taken  place,  for  the 

•  Part  of  opinion  omitted. 


Sec.  4)  EXAMINATION  OP   WITNESSES  333 

purpose  of  refreshing  his  memory  only,  this  verdict  must  be  set  aside. 
The  memorandum  itself  was  here  admitted  in  evidence,  in  connection 
with  his  testimony  that  he  heard  certain  matters,  that  he  made  a 
memorandum  of  those  matters,  that  this  is  that  paper,  and  that  it  is  a 
true  statement  of  what  then  took  place.  The  memorandum,  therefore, 
became  part  of  the  testimony  of  the  witness;  and  the  question  is, 
whether  the  paper  itself  may  be  received  to  show  the  particulars  of 
what  then  occurred,  the  witness  testifying-  that  he  has  now  no  recollec- 
tion of  all  the  particulars,  but  that  he  has  no  doubt  the  facts  there 
stated  are  true,  and  that  he  should,  within  a  short  time  subsequent, 
have  sworn  to  them  from  his  recollection. 

It  is  not  to  be  doubted  that  the  ruling  in  some  cases  heretofore  would 
exclude  the  testimony.  But  the  cases  on  this  branch  of  evidence  have 
not  been  uniform,  and  it  becomes  necessary  to  make  an  extended  ex- 
amination of  some  of  them.     *     *     * 

These  are  some  of  the  principal  authorities  ^  bearing  upon  this  ques- 
tion. If  it  be  conceded  that  none  of  them  come  up  precisely  to  this 
case,  there  are  several  so  near  that  the  difference  is  hardly  sufficient 
for  the  foundation  of  a  sound  distinction. 

And  we  are  of  opinion  that  the  admissibility  of  the  paper  in  evi- 
dence, in  connection  with,  and  as  a  part  of  tlie  testimony  of  the  wit- 
ness, may  be  established  upon  the  soundest  principles. 

It  is  not  disputed  that  the  witness  might  have  been  admitted  to  tes- 
tify to  these  facts  as  existing  in  his  recollection.  If  the  paper  be  au- 
thentic, his  record  of  the  fact,  made  at  the  time  when  he  was  much  less 
liable  to  mistake,  is  much  better  than  his  recollection  of  the  facts  so 
long  afterwards. 

It  is  agreed,  and  no  doubt  exists,  that  he  might  refer  to  the  paper  to 
refresh  his  recollection,  and  then  testify  to  the  facts  there  stated,  as 
existing  in  his  recollection.  But  if  he  has  not  a  recollection  without  the 
use  of  the  paper,  the  evidence  is  after  all  derived  mainly  from  the 
paper,  and  is  no  better  than  his  declaration  that  he  made  the  paper  at 
the  time — that  he  has  no  doubt  it  contains  the  facts  as  they  took  place — 
that  he  should  have  sworn  to  them  soon  after,  from  memory,  although 
he  does  not  now  recollect  them  except  by  the  paper. 

So  far  from  the  admission  of  such  testimony  being  dangerous,  there 
is  less  danger  than  in  the  admission  of  the  evidence  of  the  witness  that 
he  recollects  the  facts,  without  the  production  of  the  paper  as  part  of 

7  In  the  omitted  passage  the  court  reviewed  Doe  v.  Perkins,  3  D.  &  E.  749 
(1790) ;  Tanner  v.  Taylor,  cited  in  Doe  v.  Perkins ;  Hart  v.  Wilson,  2  Wend. 
(X.  Y.)  513  (1829) ;  Russell  v.  Coffin,  8  Pick.  (Mass.)  143  (1829) :  Wheeler  v. 
Hatch.  12  Me.  389  (1835) ;  Maughan  v.  Hubbard,  8  B.  &  O.  14  (1828) ;  Burton 
V,  Plummer,  2  Ad.  &  E.  341  (1834);  Lawrence  v.  Barker,  5  Wend.  (N.  Y.)  301 
(1830) ;  Feeter  v.  Heath,  11  Wend.  (N.  Y.)  485  (1833) ;  Merrill  v.  Ithaca  & 
O.  R.  Co.,  16  Wend.  (N.  Y.)  586,  30  Am.  Dec  130  (1837) ;  Sandwell  v.  Sand- 
well.  2  Comb.  445  (1697) ;  Clark  v.  Vorce,  15  Wend.  (N.  Y.)  193,  30  Am.  Dec. 
53  (1836);  Wilbur  v  Selden,  6  Cow.  (N.  Y.)  165  (1826);  Clute  v.  Small.  IT 
Wend.  (N.  Y.)  238  (1837);   Alvord  v.  Collins.  20  Pick.  (Mass.)  418  (1838). 


334  -WITNESSES  (Ch.  2 

his  statement ;  for  the  opposite  party  has  the  advantage  of  an  inspec- 
tion of  the  paper,  and  of  cross  examination  founded  upon  its  appear- 
ance, and  respecting  all  the  particulars  stated  in  it. 

If  the  witness  is  unprincipled  enough  to  fabricate  a  memorandum,  or 
use  a  fabricated  paper,  he  can  as  readily  swear  to  the  facts  it  contains 
as  existing  in  his  recollection,  and  that  he  made  the  paper  which  he 
uses  at  the  time,  as  he  can  that  he  made  the  one  which  he  produces,  and 
which  becomes  part  of  his  testimony  by  his  statement  that  he  made  it 
at  the  time,  and  has  no  doubt  it  contains  a  true  statement  of  what  took 
place.  If  false,  he  may  as  readily  be  convicted  of  perjury  in  the  lat- 
ter case  as  in  the  former,  and  perhaps  more  readily,  as  the  paper  it- 
self may  assist. 

A  plot  may  be  quite  as  easily  framed,  and  carried  into  execution, 
where  the  recollection  is  required  to  come  up  to  the  contents  of  the 
paper,  as  if  the  paper  itself  may  be  received.  There  is  as  little  difficulty 
in  manufacturing  testimony  in  that  way  as  tlie  other. 

By  the  opposite  course  of  excluding  the  evidence,  a  just  case  is  made 
to  depend  upon  the  strength  of  memory  of  the  witness,  or  upon  his 
being  less  scrupulous  than  another  in  his  statements.  One  case  is  sav- 
ed because  the  memory  of  the  witness  is  strong,  and  another  lost  be- 
cause the  memory  is  less  retentive.  This  undoubtedly  is  true  in  re- 
lation to  many  cases,  but  the  instances  should  not  be  multiplied  with- 
out necessity.  One  witness,  after  having  examined  the  memorandum, 
and  having  no  doubt  tlie  facts  are  true,  will  finally  imagine,  and  swear, 
that  he  recollects  them;  while  another,  of  a  more  scrupulous  con- 
science, will  not  go  beyond  the  testimony  given  by  the  witness  in  this 
present  case. 

If  it  be  said  that  such  evidence  ought  not  to  be  admitted,  because  the 
witness,  however  honest,  may  have  set  down  but  a  part  of  what  took 
place,  and  after  the  lapse  of  time  forgotten  all  the  residue ;  the  sam.e 
remark  applies  with  equal  force  when  he  uses  a  written  memorandum, 
and  thereby  brings  his  flagging  recollection  up  to  a  statement  of  its 
contents. 

It  will  be  for  the  jury  to  judge,  from  the  matter  and  manner  of  the 
testimony,  as  connected  with  all  the  circumstances  of  the  case,  how 
much  dependance  is  to  be  placed  upon  the  testimony  thus  derived.® 

8  A  witness  was  prnbahly  always  allowed  to  rend  certain  memoranda  to 
the  jury  as  a  part  of  his  testimony,  as  appears  from  the  statement  by  Ix)rd 
Holt  In  Sandwell  v.  Sandwell,  Holt,  295  (1G97).  But  there  has  been  more 
or  less  uncertainty  as  to  whether  the  pjipor  was  tec-linically  in  evidence  and 
whether  it  coidd  be  exhibited  to  the  jury  in  connection  with  the  testimony. 
This  quibble  was  disposed  of  by  the  Sni)renie  Court  of  Connecticut  on  tlie 
following  common-sense  reasoning  in  Curtis  v.  Bradley,  65  Conn.  99.  31 
Atl.  591,  28  L.  R.  A.  143,  48  Am.  St,  Kep.  177  (1S91):  "All  courts  concur  in 
holding  that  the  witness  may  read  the  statement  of  such  jjapcr  to  the  jury, 
and  that  the  jury  may  draw  the  conclusion  that  the  statement  so  read  to 
them  Is  a  true  statement  of  the  facts;  but  some  courts  hold  that  tlie  paf)er 
1h  not  evidence.  It  seems  to  us  to  be  pressing  Uie  use  of  a  legal  fiction  too 
far.  for  a  court  to  permit  the  statement  made  by  such  paper  to  he  read  us 


Sec.  4)  .  EXAMINATION   OF   WITNESSES  335 

y 

DYER  V.  BEST. 

(Court  of  Exchequer,  18GG.     4  Hurl.  &  C.  189.) 

At  the  trial  before  Cliannell,  B.,  at  the  last  Staffordshire  Summer 
Assizes,  it  appeared  that  the  action  was  brought  under  "The  Com- 
missioners Clauses  Act,  1847"  (10  &  11  Vict.  c.  16),  to  recover  pen- 
alties in  respect  of  the  defendant  having,  whilst  disqualified,  acted 
as  a  Commissioner  under  "The  Town  of  Burton  upon  Trent  Act, 
1853"  (16  &  17  Vict.  c.  cxviii),  with  which  "The  Commissioners  Claus- 
es Act,  1847,"  is  incorporated.  The  defendant  carried  on  the  busi- 
ness of  a  carpenter  and  builder  in  partnership  with  one  Bowler,  and 
at  various  times  between  the  years  1859  and  1865  they  were  employed 
by  Commissioners  to  do  work  for  which  they  were  paid.  The  plain- 
tiff proved  that  he  was  present  at  a  board  meeting  of  the  Commis- 
sioners in  July,  1860,  and  that  the  defendant  was  also  present  at  that 
meeting,  and  acted  as  a  Commissioner.  The  plaintiff  also  stated  that 
the  defendant  attended  board  meetings,  and  acted  as  a  Commissioner 

evidence,  while  holding  that  the  law  forbid.s  the  admission  as  evidence  of 
the  paper  which  is  the  original  and  only  proof  of  the  statement  admitted. 
In  other  words,  it  would  seem  as  if  in  admitting  the  paper  to  be  so  read, 
the  court  of  necessity  admitted  the  paper  as  evidence,  and  therefore,  by  the 
concurrent  authority  of  all  courts,  the  paper  is  itself  admissible." 

And  so  in  Halsey  v.  Sinsebaugh.  15  N.  Y.  485  (1857).  Compare  Savage,  C.  J., 
in  Lavn-enee  v.  Barker,  5  Wend.  (N.  Y.)  301  (1830):  "The  next  question  is 
whether  the  last  witness  called  by  the  defendant  should  have  been  permitted 
to  read  his  memorandum  or, state  its  contents.  The  rule  is  that  a  written 
memorandum  may  be  referred  to  by  a  witness  to  refresh  his  memory,  but 
he  must  swear  to  the  truth  of  the  facts  or  his  statement  is  not  evidence.  1 
Stark,  129;  3  T.  R.  749.  It  is  not  sufficient  for  him  to  swear  that  he  made 
a  memorandum  which  he  believes  to  be  true,  and  that  he  relies  upon  it  without 
any  present  recollection  of  the  facts.  This  is  the  extent  to  which  the  witness 
could  go.  The  judge,  therefore,  properly  refused  to  receive  his  statement  as 
evidence.  The  case  of  Tanner  v.  Taylor,  stated  in  Doe  v.  Perkins,  3  T.  R, 
754  (1790) ;  was  an  action  for  goods,  and  the  witness  had  in  his  hand  a  copy 
of  the  day  book.  Baron  Legge  said  that  if  he  would  swear  positively  from 
recollection,  he  might  use  the  paper  to  refresh  his  recollection ;  but  if  he 
could  only  swear  to  the  delivery  from  seeing  the  charges  in  a  book,  the  orig- 
inal entries  must  be  produced.  That  case  does  not  prove  that  the  original 
memorandum  should  have  been  received  in  this  case.  In  case  of  goods  sold 
and  delivered,  a  merchant's  books  are  evidence  to  a  certain  extent,  but  that 
is  very  different  from  a  memorandum  made  by  a  witness,  for  his  own  conveni- 
ence, not  sanctioned  by  the  parties,  and  where  no  necessity  exists  requiring 
the  admission  of  such  a  paper,  as  is  frequently  the  case  in  respect  to  mer- 
chants' books." 

The  reason  does  not  apply  to  papers  and  memoranda  merely  used  to  stim- 
ulate memory,  though  it  might  be  proper  for  the  adverse  party  to  show 
them  to  the  jury  in  connection  with  the  cross-examination.  Hawken  v.  Daley, 
85  Conn.  16,  81  Atl.  1053  (1911). 

There  seems  to  be  no  reason  for  allowing  a  paper  to  be  read  to  the  jury 
where  the  witness  testifies  from  present  memorv.  People  v.  McLaughlin. 
150  N.  Y.  365,  44  N.  E.  1017  (189G)  ;  Mattison  v.  Mattisou,  203  N.  Y.  79,  96 
N.  E.  3.59  (1911).  The  effe^'t  would  be  to  corroborate  the  witness  by  the  fact 
that  he  had  previously  stated  the  same  thing  in  writing,  as  to  which  see 
section  on  Corroboration  and  Support,  post,  p.  412. 


336  WITNESSES  ,  (Ch.  2 

on  the  3d  day  of  September,  1862,  the  6th  of  l\Tay,  1863,  the  6th  of 
January,  1864,  the  3d  of  February,  1864,  and  the  24th  of  June,  1864. 
On  cross-examination,  the  plaintiff  stated  that  he  had  no  recollec- 
tion of  the  particular  days  on  which  the  defendant  acted  as  a  Com- 
missioner; but  he  had  a  recollection  of  seeing  the  defendant  so 
acting  on  several  occasions,  and  he  regularly  took  in  a  weekly  news- 
paper which  contained  reports  of  what  took  place  at  the  meetings  of 
the  Commissioners,  and  whenever  there  was  a  report  of  the  proceedings 
at  meetings  at  which  he  was  present  he  used  to  read  it.  He  made  no 
memorandum  at  the  time;  but  by  referring  to  those  newspapers, 
which  he  had  ever  since  kept,  he  was  enabled  to  fix  the  particular 
days  on  which  the  defendant  acted  as  a  Commissioner.  The  defend- 
ant's counsel  submitted  that  the  witness  was  not  at  liberty  to  refresh 
his  memory  by  referring  to  these  newspapers,  but  the  learned  Judge 
overruled  the  objection,  and  admitted  the  evidence.^  [A  verdict  was 
entered  for  plaintiff  for  £200.,  with  leave  to  defendant  to  move  to 
reduce  the  amount.] 

Gray,  in  the  following  Term,  moved  for  a  rule  nisi  accordingly,  and 
also  for  a  new  trial  *  *  *  on  the  ground  of  the  improper  recep- 
tion of  evidence.  The  learned  Judge  ought  not  to  have  allowed  the 
witness  to  refresh  his  memory  by  referring  to  the  newspapers.  A  wit- 
ness may  refresh  his  memory  by  looking  at  memoranda  made  by 
himself  or  some  person  in  his  presence;  but  here  the  witness  made 
no  memorandum  whatever  at  the  time  he  read  the  newspapers. 
[Pollock,  C.  B.  If  a  man,  at  the  time  he  has  a  recollection  of  cer- 
tain facts,  reads  a  document  containing  a  statement,  which  he  knows 
to  be  true,  of  those  facts,  he  may  again  refer  to  it  to  refresh  his  mem- 
ory, although  at  the  time  he  first  read  it  he  made  no  memorandum.] 

Per  Curiam.  We  are  all  of  opinion  that  upon  this  point  tliere 
ought  to  be  no  rule/" 


INSURANCE  CO.  v.  WEIDES. 
(Supreme  Court  of  the  United  States,  1871.    14  Wall.  375,  20  L.  Ed.  S94.) 

A  fire  having  occurred  and  the  goods  insured  having  been  burnt, 
the  Weides  sued  the  companies  on  the  policies.  On  the  trial  it  became 
material  to  prove  what  was  the  quantity  and  value  of  the  goods  which 
the  plaintiffs  had  when  the  fire  occurred.  As  bearing  upon  this,  evi- 
dence was  introduced,   without  objection,  tending  to   show  that  the 

0  Statoinont  fondensed  and  opinions  omitted. 

10  For  the  use  of  newspapers  or  reports  made  by  a  third  person,  to  aid  In 
reralllng  matters,  see  Miner  v.  Pliillips,  42  111.  123  (1800);  Hun"  v.  r.eiineft, 
6  N.  Y,  337  (1852);  The  J.  S.  Wcrdeii,  211)  Fed.  517,  135  C.  C.  A.  2G7  (1914), 
In  which  a  large  number  of  cases  are  collected. 


Sec.  4)  EXAMINATION  OF  WITNESSES  337 

plaintiffs  took  a  correct  inventory  of  their  stock  on  the  28th  of  Feb- 
ruary, 1866,  which  was  correctly  reduced  to  writing  by  one  of  them 
in  an  inventory  book;  that  the  prices  or  values  were  correctly  footed 
up  therein ;    that  at  the  same  time  the  footings  were  correctly  en- 
tered by  one  of  the  plaintiffs  upon  the  fly-leaf  of  an  exhausted  ledger, 
and  afterwards  transferred  also  by  one  of  the  plaintiffs  to  the  fly- 
leaf of  a  new  ledger;    that  neither  of  the  plaintiffs  could  remember 
the  amount  of  such  inventory  or  footings,  and  that  both  the  inventory 
book  and  the  exhausted  ledger  had  been  destroyed.    The  plaintiffs  then 
offered  the  entry  of  the  footings  upon  the  fly-leaf  of  the  new  ledger, 
which  the  court,  in  the  face  of  objection  by  the  other  side,  received. 
The  reception  of  this  evidence  made  the  first  exception. ^^ 
Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 
It  is  contended  in  the  first  place,  that  there  was  error  in  the  court's 
receiving  the  entry  of  the  footings  upon  the  fly-leaf  of  the  new  ledger. 
It  will  be  observed  that  the  footings  upon  the  fly-leaf  of  the  ledger 
were  not  offered  or  received  as  independent  evidence.     They  were  ac- 
companied by  proof  that  they  were  correct  statements  of  the  values 
of  the  merchandise,  and  that  they  were  correctly  transcribed  either 
from  the  inventory  book  or  from  the  fly-leaf  of  the  exhausted  ledger, 
both  of  which  appear  to  have  been  originals.     How  far  papers,  not 
evidence  per  se,  but  proved  to  have  been  true  statements  of  fact,  at 
the  time  they  were  made,  are  admissible  in  connection  with  the  testi- 
mony of  a  witness  who  made  them,  has  been  a  frequent  subject  of  in- 
quiry, and  it  has  many  times  been  decided  that  they  are  to  be  re-* 
ceived.    And  why  should  they  not  be?    Quantities  and  values  are  re- 
tained in  the  memory  with  great  difficulty.     If  at  the  time  when  an 
entry  of  aggregate  quantities  or  values  was  made,  the  witness  knew  it 
was  correct,  it  is  hard  to  see  why  it  is  not  at  least  as  reHable  as  is  the 
memory  of  the  witness.    It  is  true  a  copy  of  a  copy  is  not  generally  re- 
ceivable for  the  reason  that  it  is  not  the  best  evidence.    A  copy  of  the 
original  is  less  hkely  to  contain  mistakes,  for  there  is  more  or  less  dan- 
ger of  variance  with  every  new  transcription.    For  that  reason  even  a 
sworn  copy  of  a  copy  is  not  admissible  when  the  original  can  be  pro- 
duced.   But  in  this  case  the  inventory  book  and  the  fly-leaf  of  the  ex- 
hausted ledger  had  both  been  burned.    There  was  no  better  evidence  in 
existence  than  the  footings  in  the  new  ledger.    And  we  do  not  under- 
stand the  bill  of  exceptions  as  showing  those  footings  to  have  been  cop- 
ied from  a  copy.    It  does  not  appear  whether  they  were  taken  from  the 
inventory  book  or  from  the  fly-leaf  of  the  old  ledger.     And  it  is  of 
little  importance,  for  as  those  entries  were  made  at  the  same  time,  nei- 
ther ought  to  be  regarded  as  a  copy  of  the  other,  but  rather  both 
should  be  considered  originals.     We  do  not,  however,  propose  to  dis- 

11  Statement  condensed  and  part  of  opinion  omitted. 
HiNT.Ev. — ^22 


338  WITNESSES  (Ch.  2 

cuss  this  exception  at  length,  for  we  regard  it  as  settled  by  the  decision 
in  Insurance  Company  v.  Weide,  9  Wall.  677,  19  L.  Ed.  810,  that  the 
evidence  under  the  circumstances  was  properly  received.     *     *     * 
Affirmed." 


PECK  V.  VALENTINE. 

(Court  of  Appeals  of  New  York,  1SS4.     94  N.  Y.  569.) 

The  complaint  in  this  action  alleged,  in  substance,  that  defendant 
was  employed  by  J.  Melner  Peck,  the  original  plaintiff  and  the  present 
plaintiff's  intestate,  as  his  agent  to  conduct  and  carry  on  the  lumber 
business  at  the  lumber  yard  of  said  Peck ;  that  said  defendant  sold  a 
large  quantity  of  lumber  and  received  the  pay  therefor,  for  which  he 
failed  to  account,  but  embezzled  and  converted  the  same  to  his  own 
use. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Andrews,  J.  The  plaintiff,  for  the  purpose  of  proving  that  the 
defendant  had  not  entered  in  the  cash-book  all  the  moneys  received 
by  him  from  sales  of  lumber,  called  one  Leggett  as  a  witness,  who 
testified  that  in  July,  1879,  he  was  employed  by  the  plaintiff  in  his 
lumber  yard,  and  kept  on  a  loose  piece  of  paper  an  account  of  mon- 
eys received  by  the  defendant  from  sales  of  lumber  from  the  1st  to 
the  18th  of  that  month ;  that  the  entries  were  made  each  day  contin- 
uously, except  Sunday,  and  were  correct ;  that  he  gave  the  paper  to 
the  plaintiff,  and  that  the  defendant  never  saw  it.  The  plaintiff  testi- 
fied, that  he  received  the  memorandum  from  Leggett,  and  had  lost 
it,  but  that  he  copied  the  figures  correctly  into  a  memorandum-book 
(which  he  produced)  and  that  the  entries  had  not  been  altered.  The 
entries  in  the  memorandum-book  were  then  offered  and  received  in 
evidence,  under  the  defendant's  objection. 

We  think  the  entries  were  not  competent  evidence.  The  original 
memorandum,  if  It  had  been  produced,  could  have  been  used  by  Leg- 
gett to  refresh  his  recollection ;  or  if  he  had  forgotten  the  facts  stated, 
and  could  not  on  seeing  the  memorandum  recall  them,  yet  if  he  had 
been  able  to  state  that  it  was  a  true  statement  of  the  transactions, 
known  to  him  at  the  time,  it  could  have  been  read  in  evidence  in  con- 
nection with,  and  as  auxiliary  to  his  testimony.  Guy  v.  Mead,  22  N. 
Y.  462.  But  the  adverse  party  on  production  by  the  witness  of  the 
memorandum  would  have  had  the  right  of  inspection  and  cross-ex- 
amination, a  right  of  great  inii)ortance  as  a  protection  against  fabri- 
cated evidence.     Stephens  on  Evidence,  art.  136;    Cowen,  J.,  Merrill 

12  In  Erman  v.  State,  90  Neb.  642,  134  N.  W,  258.  Ann.  Cas.  1913B,  C77. 
(1912),  It  was  hold  that  a  iciiortfi-  iiilKht  inako  sliiiihir  use  of  au  article  In  a 
nowspaiKT,  his  original  luaims^Tipt  liaviiifc  hoon  destroyed. 

For  the  ^''txTal  rules  re(inlrin^'  the  production  of  <irii,'inal  documents,  and 
excluding  copy  if  the  original  Is  availahle,  see  chapter  VI,  section  1. 


Sec.  4)  EXAMINATION   OF   WITNESSES  339 

V.  Ithaca,  etc.,  R.  R.  Co.,  16  Wend.  600,  30  Am.  Dec.  130.  In  this 
case  the  memorandum  was  not  produced  and  Leggett  was  not  sworn 
as  to  its  contents,  for  the  reason  doubtless  that  he  could  not  remem- 
ber what  it  contained.  The  only  evidence  to  connect  the  entries  in  tlie 
plaintiff's  book  with  the  original  memorandum,  or  establish,  ihe  amount 
of  money  received  by  the  defendant  during  the  time  stated,  was  the 
oath  of  the  defendant  that  the  entries  were  a  true  transcript  from  the 
memorandum  in  connection  with  the  testimony  of  Leggett,  and  the 
memorandum  was  a  true  statement  of  the  transactions  at  the  time. 
The  original  memorandum  was  tfie  mere  declaration  of  Leggett  in 
writing  of  certain  facts  observed  by  him.  The  case  is  not  distinguish- 
able in  principle  from  what  it  would  have  been  if  there  had  been  no 
memorandum  and  the  plaintiff  had  been  permitted  to  prove  the  oral 
representations  of  Leggett  to  him  of  the  same  facts.  This  would  be 
mere  hearsay,  and  the  fact  that  the  statement  instead  of  being  oral 
was  written  does  not  alter  the  character  of  the  evidence. 

A  similar  question  was  presented  in  Clute  v.  Small,  17  Wend.  238. 
The  plaintiff  in  that  case  sought  to  prove  an  admission  of  the  de- 
fendant made  to  tlie  sheriff  at  the  time  of  the  service  of  the  writ,  and 
was  permitted  to  prove  the  contents  of  a  letter  written  by  the  sheriff' 
to  the  plaintiff's  attorneys  on  returning  the  process,  in  which  he  re- 
ported the  admission  made  by  the  defendant.  The  letter  was  lost 
and  the  sheriff  testified  that  he  could  not  recollect  the  contents  of 
the  letter  or  what  the  defendant  had  said,  but  that  what  he  wrote  was 
undoubtedly  as  stated  by  the  defendant.  The  evidence  of  the  sheriff 
was  held  to  be  inadmissible;  Cowen.  J.,  saying:  "There  was  only 
one  of  two  ways  in  which  he  could  be  allowed  to  speak ;  that  is,  ei- 
ther from  positive  recollection  or  from  seeing  the  letter  and  knowing 
it  to  be  his  own  statement."  And  again :  "The  inquiry  here  was  no 
more  than  the  common  one  to  a  witness ;  would  you  have  asserted  such 
a  matter  unless  it  had  been  true?  and  on  obtaining  the  witness'  af- 
firmative answer,  going  on  to  prove  what  he  did  say." 

The  substantive  fact  sought  to  be  proved  in  this  case  was  the  re- 
ceipt by  defendant  of  moneys  for  which  he  had  not  accounted.  It 
could  be  proved  by  any  competent  common-law  evidence.  But  the 
original  memorandum  of  Leggett  was  not  original  or  primary  evi- 
dence to  charge  the  defendant.  It  was  not  a  writing  inter  partes,  nor 
one  creating  rights  or  of  which  rights  could  be  predicated,  as  a  will, 
contract  or  deed ;  nor  was  it  a  record  of  transactions  in  the  ordinary 
course  of  business,  as  books  of  account,  nor  a  paper  made  by  the  de- 
fendant, or  to  which  he  was  in  any  way  privy.  It  was  apparently 
a  private  statement  of  an  exceptional  transaction,  made  by  an  agent 
in  aid  of  his  memory,  for  the  information  of  his  principal.  The  facts 
stated  were  relevant  and  could  be  proved  by  any  one  who  could  tes- 
tify to  their  existence,  either  directly,  as  matter  of  personal  recollec- 
tion, or  from  a  memorandum  made  by  him,  which  he  could  verify  as 
true.     The  entries  in  the  plaintiff's  book  were  not  authenticated  by 


340  WITNESSES  (Ch.  2 

Leggett.  Whether  they  were  a  correct  transcript  of  his  original  mem- 
orandum depended  solely  upon  the  plaintiff's  evidence.  The  original 
memorandum  was  not  a  writing  the  contents  which  if  lost,  could  be 
proved  by  secondary  evidence.  The  rule  upon  that  subject  relates  to 
writings  which  are  in  their  nature  original  evidence,  and  in  case  of 
loss,  their  contents  are  from  necessity  allowed  to  be  proved  by  parol. 
We  think  the  admission  of  the  entries  from  the  plaintiff's  book  was  not 
justified  by  any  rule  heretofore  established,  and  to  extend  the  rule  so 
as  to  admit  a  copy  of  a  memorandum  not  in  its  nature  original  evi- 
dence of  the  facts  recorded,  and  not  verified  by  the  party  who  made  the 
original  and  knew  the  facts,  would  open  the  door  to  mistake,  uncer- 
tainty and  fraud,  a  consequence  far  more  serious  than  would  flow 
from  a  restriction  which  in  a  particular  instance  might  seem  to  pre- 
[\'ent  the  ascertainment  of  truth. 

For  the  error  in  admitting  the  entries  the  judgment  should  be  re- 
versed and  a  new  trial  ordered.       All  concur. 

Judgment  reversed.^' 


MAXWELL'S  EX'R  v.  WILKINSON  et  al. 

(Supreme  Court  of  the  United  States,  1885.     113  U.  S.  656,  5  Sup.  Ct.  691,  28 

L.  Ed.  1037.) 

This  is  a  writ  of  error  by  the  executors  of  a  former  collector  of  the 
port  of  New  York  to  reverse  a  judgment  in  an  action  brought  against 
him  by  the  defendants  in  error  on  January  11,  1855,  to  recover  back 
the  amount  of  duties  paid  by  them  on  imported  iron  on  October  23, 
1852. 

Upon  a  second  trial,  the  main  question  was  whether  the  duties  had 
been  paid  under  protest.  The  plaintiffs  introduced  evidence  tending  to 
show  that  the  entry  of  the  goods,  to  which  any  protest  would  have 
been  attached,  could  not  be  found  at  the  custom  house,  and  called 
William  S.  Doughty,  a  clerk  of  their  consignees,  who  produced  a 
copy  of  a  protest,  purporting  to  be  dated  October  13,  1852,  and  to  be 
signed  by  the  consignees,  and  having  upon  it  these  two  memoranda: 
First,  in  pencil,  "Handed  in  on  the  23rd  day  of  October,  1852."  Sec- 
ond, in  ink,  "The  above  protest  was  handed  to  the  collector  the  23d 
day  of  October,  1852.    New  York,  June  16th,  1854.    Wm.  S.  Doughty." 

Doughty,  on  direct  examination,  testified  that  he  handed  the  orig- 
inal, of  which  this  was  a  copy,  to  the  collector  on  October  23,  1852. 
Being  then  cross-examined  by  leave  of  the  court,  he  testified  that  the 
memorandum  in  ink  was  written  by  him  on  June  16,  1854;  that  he 
had  previously  made  the  memorandum  in  pencil  so  as  to  be  able  to 
make  a  statement  in  ink  at  some  future  time ;   that  he  did  not  know 

f  18  jf  u  witness  nover  had  personal  knowledge  of  a  fact,  he  cannot  supply 
I  that  lack  by  reference  to  a  paper  or  meuioranduin.  Kaplan  v.  Gro.ss,  223 
I  Miiss.  ■\r,2.  in  N.  E.  853  (1916). 


Sec.  4)  EXAMINATION   OF   WITNESSES  341 

when  he  made  the  pencil  memorandum;  that  he  could  not  tell,  other- 
wise than  as  his  memory  was  refreshed  by  the  memorandum,  that 
he  ever  filed  a  protest  with  the  collector;  that  he  had  no  recollection 
now  that  he  filed  such  a  protest;  but  that  he  must  have  done  it  be- 
cause it  was  his  duty  to  do  it;  and  that  he  was  willing  to  swear  pos- 
itively that  he  did  so,  because  he  had  signed  a  statement  to  that  effect, 
and  his  habit  was  never  to  sign  a  statement  unless  it  was  true.  The 
witness  then,  by  permission  of  the  court,  voluntarily  stated  as  fol- 
lows: "The  fact  that  the  statement  was  made  two  years  after  was 
when  there  was  sufficient  data  for  me  unquestionably  to  make  that 
statement  at  the  time  two  years  afterwards.  Probably  there  were 
memoranda  which  were  destroyed  long  ago." 

The  defendant's  counsel  thereupon  objected  to  the  admission  in  evi- 
dence of  the  alleged  copy  of  the  protest. 

The  court  overruled  the  objection,  and  admitted  the  copy  of  the 
protest  in  evidence,  and,  a  verdict  being  returned  for  the  plaintiffs,  al- 
lowed a  bill  of  exceptions  to  its  admission.^* 

Gray,  J.  The  witness,  according  to  his  own  testimony,  had  no 
recollection,  either  independently  of  the  memoranda,  or  assisted  by 
them,  that  he  had  filed  a  protest  with  the  collector;  did  not  know 
when  he  made  the  memorandum  in  pencil ;  made  the  memorandum  in 
ink  20  months  after  the  transaction,  from  the  memorandum  in  pencil, 
and  probably  other  memoranda,  since  destroyed  and  not  produced, 
nor  their  contents  proved ;  and  his  testimony  that  he  did  file  the  pro- 
test was  based  exclusively  upon  his  having  signed  a  statement  to  that 
effect  20  months  afterwards,  and  upon  his  habit  never  to  sign  a  state- 
ment unless  it  was  true.  ^Memoranda  are  not  competent  evidence  by 
reason  of  having  been  made  in  the  regular  course  of  business,  unless 
contemporaneous  with  the  transaction  to  which  they  relate.  Nicholls 
V.  Webb,  8  Wheat.  326,  337,  5  L.  Ed.  628 ;  Insurance  Co.  v.  Weide, 
9  Wall.  677,  19  L.  Ed.  810,  and  14  Wall.  375,  20  L.  Ed.  894;  Chaffee 
v.  U.  S.,  18  Wall.  516,  21  L.  Ed.  908. 

It  is  well  settled  that  memoranda  are  inadmissible  to  refresh  the 
memory  of  a  witness,  unless  reduced  to  writing  at  or  shortly  after 
the  time'  of  the  transaction,  and  while  it  must  have  been  fresh  ^^  in 

1*  Statement  condensed  and  part  of  opinion  omitted. 

15  See  elaborate  opinion  to  same  effect  in  Putnam  v.  U.  S.,  162  U.  S.  6S7, 
16  Sup.  Ct.  92.3,  40  L.  Ed.  1118  (1896),  reviewing  a  large  number  of  cases. 

For  a  different  view,  see  JIahoney's  Adm'r  v.  Rutland  R.  Co.,  81  Vt  210,  69 
Atl.  652  (1907),  where  a  witness  had  been  permitted  to  refer  to  a  transcript 
of  his  testimony  on  a  former  trial.    Munson,  J.: 

"It  remains  to  consider  the  reliability  of  the  writing  as  affected  by  the  time 
when  the  statement  of  the  witness  was  made  and  recorded.  It  seems  clear 
to  us,  notwithstanding  the  high  authority  cited  by  defendant's  counsel  in 
support  of  his  position,  that  the  want  of  contemporaneous  origin  Is  not  an 
adequate  ground  for  excluding  a  writing  like  this  from  the  use  in  question. 
Such  a  writing  will  often  be  a  safer  reminder  than  an  incomplete  private 
memorandum  made  soon  after  a  transaction  to  preserve  the  writer's  recol- 
lection of  what  he  saw  of  it  or  the  part  he  took  in  it     It  presents  a  state- 


^  ^ 


k 


) 


\ 


342  WITNESSES  (Ch.  2 

his  memory.  The  memorandum  must  have  been  "presently  committed 
to  writing,"  Lord  Holt  in  Sandwell  v.  Sandwell,  Comb.  4^1-5;  S.  C. 
Holt,  295 ;  "while  the  occurrences  mentioned  in  it  were  recent,  and 
fresh  in  his  recollection,"  Lord  EUenborough  in  Burrough  v.  Martin, 
2  Camp.  112;  "written  contemporaneously  with  the  transaction,"  Chief 
Justice  Tindal  in  Steinkeller  v.  Newton,  9  Car.  &  P.  313;  or  "con- 
temporaneously or  nearly  so  with  the  facts  deposed  to,"  Chief  Justice 
Wilde  (afterwards  Lord  Chancellor  Truro)  in  Whitfield  v.  Aland,  2  Car. 
&  K.  1015.  See,  also,  Burton  v.  Plummer,  2  Adol.  &  E.  341 ;  S.  C.  4 
Nev.  &  Man.  315;  Wood  v.  Cooper,  1  Car.  &  K.  645 ;  Morrison  v. 
Chapin,  97  Mass.  72,  77;  Spring  Garden  Ins.  Co.  v.  Evans,  15  Md.  54, 
74  Am.  Dec.  555. 

The  reasons  for  limiting  the  time  within  which  the  memorandum 
must  have  been  made  are,  to  say  the  least,  quite  as  strong  when  the 
witness,  after  reading  it,  has  no  recollection  of  the  facts  stated  in  it, 
but  testifies  to  the  truth  of  those  facts  only  because  of  his  confidence 
that  he  must  have  known  them  to  be  true  when  he  signed  the  mem- 
orandum. Halsey  v.  Sinsebaugh,  15  N.  Y.  485;  Marcly  v.  Shults, 
29  N.  Y.  346,  355  ;  State  v.  Rawls,  2  Nott  &  McC.  (S.  C.)  331 ;  O'Neale 
V.  Walton,  1  Rich.  (S.  C.)  234. 

In  any  view  of  the  case,  therefore,  the  copy  of  the  protest  was  er- 
roneously admitted,  because  the  memorandum  in  ink,  which  was  the 
only  one  on  which  the  witness  relied,  was  made  long  after  the  trans- 
action which  it  purported  to  state ;  and  its  admission  requires  that  the 
judgment  be  reversed,  and  a  new  trial  ordered. 

ment  made  by  the  witness  when  summoned  to  the  best  effort  of  his  recollec- 
tion by  the  caution  and  obligation  of  an  oath,  when  his  attention  was  di- 
rected to  the  material  facts  by  competent  inquiries,  and  when  his  remem- 
brance was  tested  and  corrected  by  an  examination  in  the  interest  of  the 
party  against  whom  he  was  called.  If  not  his  freshest  recollection,  it  was 
such  as  he  had  when  called  upon  by  the  law  to  give  his  recollection,  and 
such  that  it  was  received  by  the  court  for  use  in  the  determination  of  the 
case.  It  is  hardly  consistent  to  say  that  a  party  may  have  the  full  benefit 
of  the  transcription  another  trial  if  the  witness  dies  or  removes  from  the 
State,  but  cannot  be  allowed  the  use  of  it  to  refresh  a  weak  or  confused  recol- 
lection. ,     ^ 

"The  conflict  upon  this  subject  has  centered  mainly  around  the  case  of 
Melhuish  v.  Collier,  15  Q.  B.  578,  39  L.  J.  Q.  B.  493  (1850).  The  most  extended 
review  of  the  cases  is  that  in  Putnam  v.  United  States,  162  U.  S.  G87,  10  Sup. 
Ct.  92.3,  40  L.  Ed.  1118  (189C),  where  inquiries  of  this  character  were  held 
Inadmissible,  three  of  the  judges  dissenting.  Mr.  Justice  White,  the  writer  of 
the  majoritv  opinion,  argues  that  the  contrary  view  rests  upon  the  mistaken 
construction  of  the  English  decision.  But  Mr.  Wigmore  thinks  the  mistaken 
construction  Is  that  presented  in  the  Putnam  Case.     Section  701,  note." 

To  the  same  effect,  Portsmouth  St.  Ry.  Co.  v.  Peed's  Adm'r,  102  Va.  C02. 
47  S.  E.  8.50  (1904).  transcript  of  former  testimony;  Johnston  v.  Fanner.s' 
I'Mre  Ins.  Co.,  IOC  Mich.  90,  G4  N.  W.  5  (1895),  memorandum  made  shortly  be- 
fore the  trial. 


Sec.  4}  EXAMINATION   OF   WITNESSES  343 


III,  Cross-Examination 

CAZENOVE  et  al.  v.  VAUGHAN. 
(Court  of  King's  Bench,  1S13.     1  Maule  &  S.  4.) 

Park  in  the  last  term  obtained  a  rule  nisi  for  entering  a  non  suit 
in  this  action,  which  was  upon  a  poUcy  of  assurance,  (in  which  the 
plaintiffs  had  recovered  a  verdict  before  Lord  Ellenborough,  C.  J.,  at 
the  London  sittings,)  upon  an  objection  made  to  the  admissibility  of 
the  deposition  of  one  Lewis  Plitt,  which  had  been  received  in  evidence 
for  the  plaintiff's ;  respecting  which  it  appeared  by  his  Lordship's  re; 
port,  that  the  plaintiffs,  after  the  commencement  of  this  action  on 
the  5th  of  May  last  filed  a  bill  in  the  Court  of  Chancery  against  the 
defendant,  for  a  commission  to  examine  witnesses  abroad,  and  for  the 
examination  of  the  said  Plitt  de  bene  esse,  to  which  tlie  defendant 
did  not  put  in  any  answer;  on  the  15th  of  May  the  plaintiffs  obtained 
an  order  of  the  Court  for  the  examination  of  Plitt  de  bene  esse,  and 
gave  regular  notice  thereof  to  the  defendant,  and  served  him  with  a 
copy  of  the  interrogatories  in  chief ;  and  the  witness  was  examined 
on  the  evening  of  that  day;  at  which  time  no  cross-interrogatories 
were  filed,  nor  did  any  one  on  the  part  of  the  defendant  attend  such 
examination.  On  the  25th  of  June  following  the  plaintiffs  obtained  a 
further  order  for  publication,  which  after  reciting  that  it  was  prayed 
that  the  depositions  of  Plitt,  taken  de  bene  esse  in  the  cause,  under  the 
order  of  that  Court  might  be  published,  in  order  that  the  same  might 
be  read  as  evidence  for  the  plaintiffs  at  the  trial  of  this  and  other  ac- 
tions mentioned  in  the  bill ;  the  order  then  proceeded  thus,  "where- 
upon and  upon  hearing  counsel  for  the  defendant,  this  Court  doth 
order  that  the  depositions  of  L.  Plitt  in  this  cause  be  forthwith  pub- 
lished." On  the  day  after  his  examination  Plitt,  who  was  a  foreigner, 
left  London  for  the  coast,  from  whence  he  embarked  in  a  few  days  for 
Sweden,  where  he  still  remains. 

Lord  Ellenborough,  C.  J.^^  Perhaps  it  may  be  as  well  to  state 
what  the  rule  of  the  common  law  is  upon  this  subject,  which  puts  an 
end  to  the  question.  The  rule  of  the  common  law  is,  that  no  evi- 
dence shall  be  admitted  but  what  is  or  might  be  under  the  examina- 
tion of  both  parties ;  and  it  is  agreeable  also  to  common  sense,  that  what 
is  imperfect,  and,  if  I  may  so  say,  but  half  an  examination,  shall  not 
be  used  in  the  same  way  as  if  it  were  complete.  But  if  the  adverse 
party  has  had  liberty  to  cross-examine,  and  has  not  chosen  to  exer- 
cise it,  the  case  is  then  the  same  in  effect  as  if  he  had  cross-examined; 
but  otherwise  the  admissibility  of  the  evidence  would  be  made  to  de- 
pend upon  his  pleasure,  whether  he  will  cross-examine  or  not ;  which 
would  be  a  most  uncertain  and  unjust  rule.    Here  tlien  the  question  is 

18  Opinions  of  Le  Blanc  and  Bayley,  J  J.,  omitted. 


344  WITNESSES  (Ch.  2 

whether  the  defendant  had  an  opportunity  of  cross-examining.  Now 
it  appears  that  the  plaintiffs  filed  their  bill  for  the  express  purpose 
of  examining  the  witness;  and  when  they  obtained  the  order  for  his 
examination,  gave  the  defendant  a  regular  notice  of  it,  and  of  the 
interrogatories  intended  to  be  put  to  the  witness.  But  it  is  said  that 
the  defendant  had  no  time  to  file  cross-interrogatories,  and  therefore 
the  notice  was  of  no  use;  yet  if  he  had  intimated  a  wish  to  cross- 
examine,  and  addressed  himself  to  the  Court  praying  for  further  time 
for  that  purpose,  there  can  be  no  doubt  that  he  might  have  obtained 
it;  but  he  contents  himself  simply  with  paying  no  attention  to  the  no- 
tice. Then  comes  the  order  for  publication,  which  is  obtained,  as  it 
appears  from  the  terms  of  the  order  after  hearing  counsel  on  the  part 
of  the  defendant,  who  therefore  had  an  opportunity  of  shewing  cause 
against  it.  The  order  for  publication  recites,  "that  it  was  prayed  that 
the  depositions  of  the  witness  may  be  published  in  order  that  the  same 
may  be  read  as  evidence  for  the  plaintiffs  at  the  trial,"  and  directs 
as  follows:  "Whereupon  this  Court  doth  order  that  the  depositions 
be  forthwith  published."  The  order  therefore  purports  in  its  manda- 
tory part,  to  act  upon  and  adopt  the  purpose  for  which  it  is  prayed  in 
the  reciting  part ;  i.  e.,  the  special  purpose  of  having  the  deposition 
read  in  evidence  at  the  trial ;  for  it  is  not  limited  by  the  Judge  who 
directed  it,  to  any  object  short  of  that  for  which  it  was  prayed.  I 
must  conclude  then  that  the  Judge  was  satisfied  before  he  directed  such 
order  to  be  made,  that  the  adverse  party  had  all  the  liberty  to  cross- 
examine  which  the  practice  of  that  Court  requires ;  and  upon  the  prin- 
ciple of  the  common  law  I  have  already  stated  tliat  there  is  no  objec- 
tion." 


RUSH  V.  SMITH. 
(Coiirt  of  Exchequer,  1834.     1  Cromp.  M.  &  R.  94.) 

Trespass  for  seizing  and  carrying  away  two  horses  and  certain  other 
property  of  the  plaintiff.     Plea — Not  guilty. 

At  the  trial  before  Vaughan,  B.,  at  the  last  Lent  Assizes  for  the 
county  of  Suffolk,  the  officer  who  had  made  the  distress  for  which  this 
action  was  brought,  was  subpoenaed  to  produce  the  warrant  of  distress, 
and,  being  put  into  the  box,  was  by  mistake  sworn ;  and  the  following 
question  was  put  to  him  by  the  plaintiff's  counsel — "Were  you  employ- 
ed as  bailiff,  and  had  you  any  warrant?"  but  no  answer  was  made. 
Storks,  Serjt.,,for  the  defendant,  insisted  on  his  right  to  cross-examine 
the  witness,  as  he  had  been  sworn ;  but  th,e  learned  Judge  ruled,  that, 
as  he  had  not  been  examined,  such  right  did  not  exist;    and  Storks 

17  Moclom  .statutes  frequently  pre.scribe  the  notice  to  be  given  to  the  adverse 
purty  on  the  taking  of  depositions;  In  such  cases  the  party  cannot  he  treated 
as  waiving  cross-exanilnntion,  in  the  al)sence  of  proper  notice,  unless  he  ac- 
tually attends  the  proceeding. — Ed. 


Sec.  4)  EXAMINATION   OF   WITNESSES  345 

afterwards  called  him  as  his  own  witness.  A  verdict  having  been  found 
for  the  plaintiff,  Storks  obtained  a  rule  for  a  new  trial,  on  the  ground 
that  he  had  been  improperly  excluded  from  the  cross-examination  of 
this  witness. 

AldErson,  B.^®  The  whole  evidence  has  been  fairly  laid  before  the 
jury,  though  not  in  the  order  contended  for  by  the  defendant ;  and  that 
being  the  case,  there  is  no  ground  for  disturbing  the  verdict.  I  do  not 
say  how  I  should  have  ruled  had  the  question  arisen  before  me.  The 
practice  is  now  well  settled,  that,  where  you  call  a  witness  under  a 
subpoena  duces  tecum,  and  he  produces  the  required  documents,  which 
he  is  bound  to  do  at  his  peril,  and  you  do  not  examine  him,  but  identify 
the  documents  by  other  witnesses,  the  person  producing  the  documents 
is  not  subject  to  cross-examination.  I  ruled  accordingly  in  a  case  which 
occurred  before  me  at  Carlisle.  Here,  the  witness  was  merely  called 
for  the  purpose  of  producing  the  warrant. 

Rule  discharged. 


GALE  V.  STATE. 

(Supreme  Court  of  Georgia,  1910.     135  Ga.  351,  69  S.  E.  537.) 

Lumpkin,  J.^»  Prince  Gale  was  convicted  of  the  murder  of  Calvin 
Brown,  and  upon  recommendation  of  the  jury,  was  sentenced  to  life 
imprisonment.  He  moved  for  a  new  trial,  which  was  refused,  and  he 
excepted. 

Pending  the  cross-examination  of  a  witness  for  the  state,  she  col- 
lapsed physically  and  had  to  be  taken  from  the  courtroom.  Just  be- 
fore she  was  removed  from  the  stand,  she  did  not  answer  several  ques- 
tions of  the  cross-examining  attorney.  This,  however,  was  apparent- 
ly the  result  of  her  condition,  rather  than  of  contumaciousness.  The 
presiding  judge  endeavored  to  compel  her  to  answer,  but  she  seemed  to 
be  unable  to  do  so.  The  judge  had  a  physician  called,  who  examined 
the  condition  of  the  witness  and  reported  that  she  would  be  unable  to 
testify  further  that  day.  This  was  about  the  middle  of  the  afternoon, 
and  the  court  took  a  recess  until  next  morning.  On  the  reconvening 
of  court  next  day  the  witness  was  not  present.  The  testimony  of  the 
physician  and  other  evidence  was  heard,  from  which  the  presiding 
judge  became  satisfied  that  the  witness  was  still  unable  to  testify,  and 
that  it  was  entirely  uncertain  whether  she  would  be  able  to  do  so.  The 
judge  then  caused  the  jury  to  retire  from  the  courtroom  and  stated  to 
counsel  for  defendant,  in  the  hearing  of  the  latter,  that  a  mistrial  would 
be  granted,  if  the  defendant  desired  it.  Defendant's  counsel  stated  that 
a  mistrial  was  not  desired,  and  the  case  proceeded;  the  judge  allowing 
the  evidence  of  the  witness,  so  far  as  given,  to  stand  and  refusing  to 

18  Opinion  of  Guruey,  B.,  omitted. 

19  Part  of  opinion  omitted. 


346  WITNESSES  (Ch.  2 

rule  it  out.  A  number  of  the  grounds  of  the  motion  for  a  new  trial 
arise  out  of  tliis  incident,  an  account  of  which  appears  in  a  note  ap- 
pended by  the  judge  to  the  motion. 

Undoubtedly  the  right  of  cross-examination  is  a  valuable  right,  and, 
if  it  be  improperly  denied,  a  reversal  must  result.  There  is  authority 
in  England  to  the  effect  that  if  a  witness  dies,  or  becomes  incapable  of 
being  further  examined,  at  any  stage  of  his  examination,  the  evidence 
given  before  he  became  incapable  is  good ;  but  it  has  been  said  tliat  in 
this  country  the  rule  is  different,  where  there  has  been  no  opportunity 
for  cross-examination.  Clark's  Crim.  Proc.  549;  Stephen's  Dig.  Ev. 
(Beer's  Ed.)  434;  Rex  v.  DooHn,  1  Jebb.  Cr.  Cas.  123;  8  Enc.  PI.  & 
Pr.  99.  In  2  Wigmore  on  Evidence,  §  1390,  p.  1742,  it  is  said: 
"Where  the  witness'  death  or  lasting  illness  would  not  have  interven- 
ed to  prevent  cross-examination  but  for  the  voluntary  act  of  the  wit- 
ness himself  or  the  party  offering  him — as,  by  a  postponement  or  oth- 
er interruption  brought  about  immediately  after  the  direct  examination 
— it  seems  clear  that  the  direct  testimony  must  be  struck  out.  Upon  the 
same  principle,  the  same  result  should  follow  where  the  illness  is  but 
temporary  and  the  offering  party  might  have  reproduced  the  witness 
for  cross-examination  before  the  end  of  the  trial.  But,  where  the 
death  or  illness  prevents  cross-examination  under  such  circumstances 
that  no  responsibility  of  any  sort  can  be  attributed  to  either  the  wit- 
ness or  his  party,  it  seems  harsh  measure  to  strike  out  all  that  has  been 
obtained  on  direct  examination.  Nevertheless,  principle  requires  in 
strictness  nothing  less.  The  true  solution  would  be  to  avoid  any  in- 
flexible rule,  and  to  leave  it  to  the  trial  judge  to  admit  the  direct  ex- 
amination so  far  as  the  loss  of  cross-examination  can  be  shown  to  him 
to  be  not  in  that  instance  a  material  loss.  Courts  differ  in  their  treat- 
ment of  this  difficult  situation,  except  that,  by  general  concession,  a 
cross-examination  begun  but  unfinished  suffices  if  its  purposes  have 
been  substantially  accomplished.  Where,  however,  the  failure  to  ob- 
tain cross-examination  is  in  any  sense  attributable  to  the  cross-examin- 
er's own  consent  or  fault,  the  lack  of  cross-examination  is,  of  course, 
no  objection — according  to  the  general  principle  (ante,  section  1371) 
that  an  opportunity,  though  waived,  suffices."  This  is  quoted  some- 
what at  length  on  account  of  the  clearness  with  which  the  author  has 
stated  his  views,  and  also  because  of  the  collection  of  authorities  in  the 
note,  among  them  being  Randall  v.  Atkinson,  30  Ont.  242;  Scott  v. 
McCann,  76  Md.  47,  24  Atl.  536 ;  Fuller  v.  Rice,  4  Gray  (Mass.)  343 ; 
I^wis  V.  Insurance  Co.,  10  Gray  (Mass.)  508,  511;  People  v.  Kindra, 
102  Mich.  147,  151,  60  N.  W.  458.  See,  also,  1  Gr.  Ev.  (16th  Ed.)  §§ 
163c,  163d,  p.  280. 

In  People  v.  Cole,  43  N.  Y.  508,  where,  on  a  trial  for  larceny,  the 
wife  of  the  pro.secutor,  having  given  material  evidence,  on  belialf  of 
the  people  on  her  direct  examination,  immediately  went  into  convul- 
sions before  the  prisoner  had  an  opportunity  to  cross  examine  lier,  and 
so  remained  until  the  close  of  the  trial,  it  was  held  to  be  error  to  permit 


Sec.  4)  EXAMINATION   OF   WITNESSES  347 

her  evidence  to  go  to  the  jury.  This  case  is  often  cited.  From  the 
report  of  facts  it  appears  that  counsel  for  the  defendant  called  for  th^, 
production  of  the  witness  in  court  for  examination,  moved  that  her 
evidence  be  stricken  out,  asking  a  postponement  of  the  trial  until  she 
should  recover,  and  asked  that  the  prisoner  be  discharged.  Each  of 
these  motions  was  overruled.  In  Sturm  v.  Atlantic  Mut.  Ins.  Co.,  63 
N.  Y.  77,  the  same  court  said :  "It  may  be  taken  as  the  rule  that  where 
a  party  is  deprived  of  the  benefit  of  the  cross-examination  of  a  witness, 
by  the  act  of  the  opposite  party,  or  by  the  refusal  to  testify  or  other 
misconduct  of  the  witness,  or  by  any  means  other  than  the  act  of  God, 
the  act  of  the  party  himself,  or  some  cause  to,  which  he  assented,  the 
testimony  given  on  the  examination  in  chief  may  not  be  read."  See, 
also,  Bradley  v.  Mirick,  91  N.  Y.  293 ;  Hewlett  v.  Wood,  67  N.  Y.  394. 
We  will  not  stop  to  discuss  the  difference  between  common-law  and 
equity  practice. 

It  is  clear  that,  while  the  right  of  cross-examination  is  not  to  be 
violated,  yet  it  may  be  waived  expressly,  or  by  the  conduct  of  the  par- 
ty entitled  to  it;  and  that  (in  the  language  of  Prof.  Wigmore),  if  "the 
failure  to  obtain  cross-examination  is  in  any  sense  attributable  to  the 
cross-examiner's  own  consent  or  fault,  the  lack  of  cross-examination 
is  of  course  no  objection." 

When  the  witness  collapsed  during  the  progress  of  the  cross-exam- 
ination, there  was  no  error  in  having  her  removed  from  the  stand  and 
examined  by  a  physician,  and  suspending  the  trial  until  the  next  day, 
upon  hearing  his  testimony  in  regard  to  her  condition.  When  court  re- 
convened next  day,  there  was  no  error  in  hearing  evidence  touching 
her  condition,  she  not  being  present ;  nor,  under  the  evidence  adduced, 
can  we  say  that  the  court  did  not  decide  properly  that  she  was  unable 
to  return  to  the  courtroom  and  testify,  and  that  it  was  uncertain 
when  she  would  be  able  to  do  so.  She  was  the  principal  witness  for 
the  state,  being  an  eyewitness  to  the  commission  of  the  homicide.  The 
court  was  thus,  in  the  expressive  language  of  a  distinguished  Ameri- 
can, confronted  with  a  condition,  not  a  theory.  It  w^as  impracticable 
to  suspend  the  case  indefinitely.  No  motion  for  a  postponement  was 
made  by  counsel  for  the  defendant,  as  was  done  in  People  v.  Cole,  su- 
pra. Counsel  for  the  accused  asked  that  the  entire  previously  given  evi- 
dence of  the  witness  should  be  ruled  out,  and  that  a  verdict  be  direct- 
ed finding  the  accused  not  guilty ;  the  witness  being  the  only  one  intro- 
duced by  the  state  in  chief.  The  presiding  judge  recognized  the  right 
of  cross-examination,  and  did  not  desire  to  cut  off  such  right  or  to 
force  the  accused  to  proceed  with  the  trial  under  such  circumstances. 
What  appeared  to  him  to  be  the  only  practicable  method  of  accomplish- 
ing that  result  was  to  declare  a  mistrial,  if  the  defendant  desired  it. 
This  would  have  resulted  in  starting  the  trial  afresh  at  a  later  date. 
If  the  state  could  not  then  have  produced  the  witness,  the  conse- 
quences of  the  inability  would  have  fallen  upon  it.  If  it  did  pro- 
duce her,  she  would  have  been  subject  to  cross-examination.     But 


348  WITNESSES  (Ch.  2 

this  was  not  what  the  defendant  desired.  His  counsel  asked  for  no 
postponement,  and  announced  that  he  did  not  want  a  mistrial.  What 
he  evidently  wanted  was  for  the  case  to  terminate,  when  it  was  im- 
possible to  cross-examine  the  witness,  to  have  the  main  evidence  for 
the  state  ruled  out,  and  for  an  acquittal  to  result  because  of  the  illness 
of  the  witness. 

The  severity  of  punishment  for  felonies  which  was  inflicted  in  Eng- 
land at  one  time  (when  they  were  generally  punishable  by  death)  be- 
gat in  practice  certain  technical  loopholes  for  escape  for  criminals,  in 
no  way  affecting  the  merits  of  the  case.  This  has,  to  some  extent  at 
least,  passed  away,  save  where  rules  of  procedure  have  been  crystallized 
by  constitutional  provisions,  or  legislative  enactments,  or  by  the  deci- 
sions of  courts  of  last  resort.  But  we  think  that  neither  in  England 
nor  in  America  have  the  decisions  on  the  subject  of  interruption  of  an 
examination  by  sickness  or  death  carried  the  rule  to  the  extent  contend- 
ed for  in  this  case.  Every  person  accused  of  crime  is  entitled  to  a  fair 
and  impartial  trial,  according  to  the  rules  of  law.  But  an  accused  per- 
son is  not  entitled  to  be  set  free,  regardless  of  his  guilt  or  innocence,  be- 
cause of  a  providential  interference  with  the  cross-examination  of  the 
state's  principal  witness,  and  the  unwillingness  of  the  defendant  to  ac- 
cept a  reasonable  metliod  of  securing  a  complete  cross-examination. 

When,  through  his  counsel,  the  accused  announced  that  he  did  not 
want  a  mistrial,  which  appeared  from  the  evidence  to  be  the  only  meth- 
od by  which  the  witness  could  be  again  produced  and  examined,  we 
think  that  he  waived  the  right,  or  at  least  that  his  conduct  was  such 
as  to  obstruct  the  possibility  of  its  exercise.  Under  the  circumstances, 
the  court  did  not  err  in  refusing  to  strike  the  evidence  which  had  been 
given  by  the  witness  for  the  state  and  to  direct  a  verdict  for  the  ac- 
cused. 

3.  After  the  trial  proceeded,  with  the  evidence  of  the  witness  re- 
maining in,  the  judge  correctly  ruled  that  it  was  for  the  jury  to  deter- 
mine the  weight  to  be  given  to  it.  The  case  was  not  one  for  the  ex- 
clusion of  a  witness  as  incompetent  to  testify.     ♦     *     * 

Judgment  affirmed.^" 

20  In  Reg.  V.  Mitchell,  17  Cox,  0.  O.  503  (1892),  It  was  held  by  Care,  J.,  that  a 
depo.sition  taken  by  the  examining  Diagistrate  could  not  be  read  at  the  trial, 
where  cress-examination  was  prevented  by  the  sudden  illness  and  death  of 
the  witness. 

In  Sporry  v.  Moore's  Estate,  42  Mich.  353,  4  N.  W.  13  (1880).  the  direct 
examination  was  cxr-luded  where  cro.ss-eximiination  was  postponed  at  the  re- 
quest of  the  party  offering  the  witness  and  the  witness  died  iu  ihe  interim. 

In  Wray  v.  State,  154  Ala.  36,  45  South.  G97,  129  Am.  St.  Hep.  18,  16  Ami. 
Cas.  302  (1908)  the  condition  of  the  witiioss  was  such  as  to  make  rross-exarai- 
nation  dangerous  to  his  life,  and  it  was  hold  that  the  dofondant  was  ju.^tilied 
in  refusing  to  cross-examine,  and  the  direct  examination  should  have  been 
excl  uded. 

In  State  v,  O'Connor,  105  Mo.  121,  16  S.  W.  510  (1891),  cross-examination 
was  provf-ntcHl  by  tlie  action  of  the  court  in  committing  Iho  witness,  and  this 
wa.s  held  error.      In   Fuller  v.  Kice,  4  Gray  (.Mass.)   'M'.',  (1,S55),  it  was  held 


Sec.  4)  EXAMINATION   OF   WITNESSES  349 

SCOTT  V.  BASSETT  et  al. 
(Supreme  Court  of  Illinois,  1898.     174  111.  390,  51  N.  E.  577.) 

Ejectment  for  a  tract  of  land.  The  plaintiff,  in  order  to  lay  the 
foundation  for  secondary  evidence  of  the  contents  of  certain  deeds, 
was  sworn  and  testified  as  to  his  lack  of  knowledge  of  the  where- 
abouts of  the  originals.^^ 

Mr.  Justice  MagrudEr.  *  *  *  We  are  also  of  the  opinion  that 
the  trial  court  erred  in  refusing  to  allow  the  defendant  below  to  cross- 
examine  the  appellee  Bassett  when  he  was  testifying  upon  this  subject. 
Section  36  provides  that  any  party  to  the  cause,  or  his  agent  or  attor- 
ney in  his  behalf,  shall  orally  in  court,  or  by  affidavit  to  be  filed  in 
the  cause,  testify  and  state  under  oath  that  the  original  is  lost,  etc.  To 
lay  a  foundation  for  the  introduction  of  the  record  or  a  certified  copy 
of  the  deed,  the  party  has  his  option  either  to  file  an  affidavit,  or  to  take 
the  stand  and  testify  orally  in  court.  In  the  present  case  the  appellee 
Bassett,  instead  of  filing  an  affidavit  as  provided  in  section  36,  was 
sworn  as  a  witness,  and  gave  his  evidence  orally  in  court.  After  he 
gave  his  evidence,  the  record  shows  that  defendant's  counsel  said,  "We 
desire  to  cross-examine  this  witness."  The  court  replied,  "I  don't 
think  you  have  a  right  to  cross-examine."  Defendant  excepted  to  the 
ruling  of  the  court  forbidding  him  to  cross-examine  the  witness.  We 
think  this  ruling  was  erroneous.  We  know  of  no  reason  why  a  wit- 
ness testifying  upon  the  subject  here  indicated,  in  behalf  of  one 
party,  is  not  subject  to  cross-examination  by  the  opposite  party.  When 
one  of  the  appellees  voluntarily  placed  himself  upon  the  witness  stand, 
instead  of  filing  an  affidavit  as  he  might  have  done,  counsel  for  the  de- 
fendant had  a  right  to  test  the  correctness  and  accuracy  of  his  state- 
ments by  a  proper  cross-examination. 

For  the  reasons  above  indicated  the  judgment  of  the  circuit  court 
is  reversed,  and  the  cause  is  remanded  to  the  circuit  court.  Reversed 
and  remanded.^* 

that  the  testimony  might  be  considered  where  there  had  been  a  substantial 
cross-examination,  the  completion  of  which  was  prevented. 

It  seems  that  in  chancery  the  deposition  was  admissible,  though  cross-exam- 
ination had  been  prevented  by  the  illness  or  death  of  the  witness.  Scott  v. 
McCann,  76  Md.  47,  24  Atl.  536  (1892).  In  some  of  the  chancery  cases  the  rul- 
ing is  based  on  the  doctrine  of  waiver  by  consenting  to  the  delay.  Celluloid 
Mfg.  Co.  V.  Arlington  Mfg.  Co.  (C.  C.)  47  Fed.  4  (1891). 

For  a  collection  of  cases  on  the  general  subject,  see  note  to  Wray  v.  State, 
15  L.  R.  A.  (N.  S.)  493  (1908). 

21  statement  condensed  and  part  of  the  opinion  omitted. 

22  For  the  contrary  view,  see  Com.  v.  Morrell,  99  Mass.  542  (186S). 

Prior  to  the  statute  referred  to  in  the  principal  case,  it  had  been  held 
that  a  party  to  the  action,  who  was  incompetent  to  testify  in  the  case.  )uight 
from  necessity  make  an  affidavit  as  to  the  loss  of  a  document,  but  that  this 
exception  could  not  be  extended  to  a  third  person  who  was  competent.  Beck- 
er V.  tjuigg,  54  111.  390  (1870). 


350  WITNESSES  .    (Ch.  2 

DEAN  AND  CHAPTER  OF  ELY  v.  STEWART. 

(Court  of  Chancery,  1740.     2  Atk.  44.) 

Lord  Chancellors^  laid  down  the  following  rules  in  this  cause: 
Where  the  lea^e  of  a  dean  and  chapter  are  of  long  standing,  and 
have  been  continued  down  to  this  time  without  any  variation  as  to 
the  form,  they  cannot  have  a  decree  in  this  court  for  a  specifick  per- 
formance of  covenants  for  repairs,  against  the  present  tenants,  but 
must  be  left  to  their  legal  remedy  of  an  action  at  law  for  a  non-per- 
formance. 

Where  at  law  ^*  a  witness  is  produced  to  a  single  point  by  the  plain- 
tiff or  defendant,  the  adverse  party  may  cross-examine,  as  to  the  same 
individual  point,  but  not  to  any  new  matter;  so  in  equity,  if  a  great 
variety  of  facts  and  points  arise,  and  a  plaintiff  examines  only  as  to 
one,  the  defendant  may  cross-examine  to  the  same  point,  but  cannot 
make  use  of  such  witness  to  prove  a  different  fact.     *     *     * 

2  3  Part  of  opinion  omitted. 

2  4  It  seems  probable  that  Lord  Hardwicke  was  mistaken  as  to  the  practice 
at  law,  since  the  text-writers  and  nisi  prius  cases  seem  to  take  it  for  granted 
that  the  cross-examination  might  extend  to  any  fact  relevant  to  the  case. 
The  editor  has  not  been  able  to  find  any  case  where  the  question  came  before  a 
court  in  banc.  The  practice  in  the  trial  courts  is  indicated  by  the  follow- 
ing case: 

Dickinson  v.  Shee,  4  Espinasse,  67  (Nisi  Prius.  1801):  "Assumpsit  for  serv- 
ant's wages. 

"Plea  of  non  assumpsit  as  to  all  except  £5.  5s.,  and  as  to  that  sum  a  tender. 

"To  prove  the  plaintifTs  case,  his  counsel  called  a  servant  who  had  lived  in 
the  defendant's  family.  She  was  examined,  cross-examined,  and  proved  the 
plaintiff's  service,  so  as  to  entitle  him  to  recover. 

"When  the  plaintiff  had  finished  his  case,  the  defendant's  counsel  was 
proceeding  to  prove  the  tender.  A  witness  was  called,  who  failed  in  doing 
it;  so  that  it  became  necessary  to  call  back  the  servant  who  had  been  first 
called  by  the  plaintiff,  to  prove  the  tender. 

"Garrow,  for  the  defendant,  was  proceeding  to  put  this  question  as  a  lead- 
ing one,  'Did  you  not  see  your  master  tender  the  plaintiff  the  sum  of  £5.  5s. 
on  account  of  his  wages?'  " 

"Mingay,  for  the  plaintiff,  objected  to  this  mode  of  examining  the  witness, 
contending,  that  the  witness  having  been  examined,  cross-examined,  and  quit- 
ted, by  being  brought  back  to  be  examined,  to  prove  the  defendant's  plea, 
she  should  be  examined  as  a  witness  called  in  chief  to  prove  the  issue;  imd 
that  the  question  should  not  be  put  in  that  leading  shape. 

"Lord  Kenyon  ruled:  That  the  witness  having  been  originally  called  by 
the  plaintiff,  and  examined  as  his  witness,  the  privilege  of  the  defendant 
to  cross-examine,  remained  in  every  stage  of  the  cause,  and  for  every  pur- 
pose; and  that  the  question  was  therefore  properly  put  by  the  defendant's 
counsel." 


Sec.  4)  EXAMINATION  OF   WITNESSES  351 

ELLMAKER  v.  BUCKLEY. 

(Supreme  Court  of  Pennsylvania,  1S27.     16  Serg.  &  R.  72.) 

Writ  of  error  to  the  District  Court  of  Lancaster  county,  in  an  ac- 
tion of  debt  on  an  award  of  arbitrators,  brought  by  Daniel  Buckley, 
the  defendant  in  error,  against  Leonard  Ellmaker,  the  plaintiff  in 
error. 

The  plaintiff,  having  on  the  trial  in  the  court  below,  proceeded  with 
his  proof  to  establish  the  existence  and  loss  of  the  award,  and  evidence 
to  supply  that  loss  by  the  examination  of  the  referees,  the  defendant's 
counsel  offered  to  cross-examine  the  witnesses  on  the  subject-matter 
of  this  suit,  and  in  avoidance  of  the  award,  before  he  had  opened 
his  defence.  This  being  opposed  by  the  plaintiff's  counsel,  the  court 
was  of  opinion  that  the  defendant  was  not  entitled  to  cross-examine 
the  plaintiff's  witnesses  before  he  had  opened  his  defence,  to  which  the 
counsel  of  the  defendant  excepted.^' 

Gibson,  C.  J.  *  *  *  The  next  bill  of  exceptions  brings  into  ques- 
tion the  right  of  a  party  to  introduce  his  case,  by  cross-examining 
the  adverse  party's  witnesses,  and  before  he  has  opened  it  to  the  jury. 
It  is  laid  down,  that  in  cross-examinations,  great  latitude  is  allowed 
in  putting  questions;  but  that  relates  to  the  manner,  and  not  to  the 
matter.  A  witness  may  not  be  cross-examined  to  facts  which  are 
wholly  foreign  to  the  points  in  issue  (and  I  would  add,  to  what  he  has 
already  testified),  for  the  purpose  of  contradicting  him  by  other  evi- 
dence. And  here  I  take  occasion,  in  broad  terms,  to  dissent  from  the 
doctrine  broached  in  Mr.  Phillip's  Law  of  Evidence,  211,  that  a  witness 
actually  sworn,  though  not  examined  by  the  party  who  has  called 
him,  is  subject  to  cross-examination  by  the  adverse  party;  and  that  the 
right  to  cross-examine  is  continued  through  all  the  subsequent  stages 
of  the  cause,  so  that  the  adverse  party  may  call  the  same  witness  to 
prove  his  case,  and  for  that  purpose,  ask  him  leading  questions.  In 
respect  to  the  first  of  these  two  propositions,  Mr.  Phillips  himself 
explicitly  and  truly  states,  that  the  use  of  the  cross-examination  is  to/ 
sift  the  evidence  and  try  the  credibility  of  the  witness,  but  in  this  view,' 
it  would  be  palpably  absurd,  when  applied  to  a  person  who  hcid  given 
no  evidence  at  all.  And  in  regard  to  the  second,  the  law  will  not  in- 
flexibly infer  that  a  witness  is  a  willing  one,  merely  because  he  is 
produced  by  the  party  who  thinks  his  evidence  material;  such  an 
inference  would  be  neither  practically  nor  theoretically  true.  It  is  not 
to  be  presumed,  that  a  party  is  in  a  condition  to  prove  his  case  by  the 
testimony  of  his  friends;  on  the  contrary,  he  is  under  the  neces.«-.ity 
of  resorting  to  those  who  may  happen  to  know  something  of  the 
transaction,  and  these  are  for  the  most  part  just  as  likely  to  be  his 
enemies.     And  the  bias  supposed  to  be  created  by  being  called  to  t^.s- 

2  0  statement  condensed  and  part  of  opinion  omitted. 


352  WITNESSES  (Ch.  2 

tify  on  one  side,  is  too  slight,  to  serve  as  the  foundation  of  a  rule  un- 
limited in  its  extent.  Certainly,  no  bias  is  to  be  presumed,  after  the 
witness  has  been  called  by  both  parties,  as  he  undoubtedly  is,  when 
produced  a  second  time,  not  for  the  legitimate  purposes  of  a  cross- 
examination,  but  to  testify  to  new  matter  on  the  adverse  part;  at 
least,  it  would  be  unreasonable,  to  raise  such  a  presumption  against 
a  party  who  is  the  first  to  use  the  testimony  of  the  witness,  only 
because  he  is  compelled  to  do  so  by  a  necessity  arising  out  of  the 
order  of  proof.  In  ordinary  cases,  the  witness  may  be  cross-examined 
by  the  party  adverse  to  him,  whose  witness  he  is  at  the  time,  and 
even  then,  only  to  discredit  him,  or  to  bring  out  something  supposed 
to  be  withheld ;  but  -under  special  circumstances,  such  as  an  apparent 
unwillingness  to  testify  frankly  and  fully,  the  court  may,  at  its  dis- 
cretion, suffer  the  inquiry  to  take  the  shape  of  a  cross-examination, 
without  distinction  as  to  the  party  by  whom  the  witness  is  called; 
and  for  myself,  I  would  not,  without  further  consideration,  pro- 
nounce the  exercise  of  the  discretion,  depending  as  it  does  on  cir- 
cumstances which  cannot  be  fully  made  to  appear  in  a  court  of  error, 
to  be  a  legitimate  subject  of  a  bill  of  exceptions.  If,  then,  a  party 
may  not  prove  his  case  by  evidence  extracted  on  a  cross-examina- 
tion, after  he  has  proposed  his  case  to  the  jury,  a  fortiori,  he  may  not 
do  so  before. 

Judgment  affirmed.^' 

26  In  Floyd  v.  Bovard,  6  Watts  &  S.  (Pa.)  75  (1843),  the  same  Judge  ex- 
pounded the  subject  as  follows:  "  ♦  *  •  The  difficulty  is  to  find  a  rea- 
son for  those  English  decisions  which  hold  the  parties  to  a  different  course, 
and  allow  the  witness  to  be  cross-examined  to  every  transaction  within  his 
knowledge  in  the  hands  of  the  party  who  is  first  compelled  to  call  him.  This 
would  seem  to  be  foreign  to  the  end  of  a  cross-examination,  which  is  not  to 
give  the  party  an  advantage  in  the  manner  of  Introducing  the  facts  of  his 
case,  but  to  test  the  credibility  of  the  witness  as  to  what  he  has  testified;  for, 
It  is  said,  that  he  shall  not  be  cross-examined  to  collateral  facts,  or  to  mat- 
ters unconnected  with  the  subject  of  inquiry,  because  it  would  lead  to  compli- 
cation and  prolixity  (1  Stark.  Ev,  154);  and,  I  may  add,  that  to  reward  a 
party  with  the  privilege  of  putting  leading  questions  for  bringing  forward  a 
branch  of  his  case  out  of  its  order,  would  reward  him  for  throwing  the  cause 
Into  confusion.  Where  the  testimony  of  a  witness  is  required  to  establish  a  ' 
fact  which  is  part  of  the  plaintiff's  case,  and  also  another  fact  which  is  part 
of  the  defence,  it  Is  a  dictate  of  justice  that  no  advantage  be  given  to  either 
party  in  the  manner  of  eliciting  it  But  an  advantage  is.  In  truth,  given,  and 
for  no  adequate  reason,  when  a  party  is  allowed  to  bring  out  his  part  of 
the  case  by  cross-examination,  merely  because  the  opposile  party  had  been 
compelled  to  call  the  witness  in  the  first  instance.  In  liex  v.  Brooke,  2  Stark. 
Ca.  473  (1819),  and  PhiJlips  v.  Eamer,  1  Esp.  Ca.  357  (1795),  the  witness  was 
allowed  to  be  cros.s-examined  because  he  had  been  merely  sworn,  tliongh  he 
even  had  not  been  examined.  The  object  could  not  have  been  to  sift  what 
he  had  said,  for  he  had  said  nothing;  or  to  test  his  credihilily.  for  it  hr.d  no 
connection  with  anything  that  had  transpired  in  the  cause.  There  ought  to 
be  better  authority  for  such  a  cour.se,  than  one  or  two  hasty  decisions  of  a 
single  Judge  in  tlie  cour.se  of  a  ti-iul.  liut  the  authority  of  these  Nisi  Priiis 
ca.'jes  is  shaken  to  its  center  by  KihmI  v.  .Tames,  1  Stark.  Ca.  ^^^2  (1815),  Davis 
V.  Davis,  1  Moody  &  Mai.  541  (18119),  and  Shni»sou  v.  Smith,  1  Stark.  Ev.  1C2. 
note  'n'  (1822).     It  would  be  iwtter  to  s;iy  that  each  party  should  call  the 


Sec.  4)  BXAMINATION   OF   WITNESSES  353 

BEAL  V.  NICHOLS. 
(Supreme  Judicial  Court  of  Massactiusetts,  1854.    2  Gray,  2(52.) 

At  the  trial  in  the  court  of  common  pleas,  before  Bishop,  J.,  of  an 
action  of  tort  for  the  conversion  of  certain  castings  and  wrought 
iron,  the  defendants,  in  order  to  prove  the  execution  of  two  writ- 
fen  contracts  between  the  plaintiff  and  the  defendants,  the  signatures 
to  which  the  plaintiff  refused  to  admit,  were  compelled  to  call  the  at- 
testing witness,  and  called  him  for  this  purpose  only,  and  asked 
him  no  other  questions.  "The  plaintiff  then  proceeded  to  examine  the 
witness  upon  other  independent  matters,  having  no  reference  to  the 
execution  of  said  contracts,  and  which  did  not  take  place  at  the 
time  of  execution.  After  this  examination  by  the  plaintiff,  the  de- 
fendants proposed  to  cross-examine  the  witness  upon  the  new  mat- 
ters upon  which  he  had  been"  examined  by  the  plaintiff.  To  this 
the  plaintiff  objected,  and  the  court  ruled, -.as  a  matter  of  law,  that 
the  defendants  had  no  right  so  to  cross-examine."  The  jury  re- 
turned a  verdict  for  the  plaintiff,  and  the  defendants  excepted  to  this 
ruling.     . 

BiGELOW,  J.  We  see  no  valid  reason  for  changing  the  rule,  as  it 
has  long  been  settled  and  practised  upon  in  this  commonwealth,  that 
a  party  calling  a  witness,  even  for  formal  proof  of  a  written  instru- 
ment, or  of  other  preliminary  matter,  thereby  makes  him  his  wit- 
ness. In  such  case,  he  cannot  be  permitted  to  impeach  his  general 
character  for  truth.  Brown  v.  Bellows,  4  Pick.  194;  Whitaker  v. 
Salisbury,  15  Pick;  544.  Nor  can  he  put  leading  questions  to  him, 
unless  permitted  so  to  do  by  the  court  in  the  exercise  of  a  sound 
discretion.     Moody  v.  Rowell,   17  Pick.  498,  499,  28  Am.  Dec.  317. 

It  follows  that  the  adverse  party  has  the  right  to  cross-examine 
the  witness  upon  all  matters  material  to  the  issue.  Experience  has 
shown  that  this  rule  is  convenient  and  easy  of  application  in  prac- 
tice, and  works  no  disadvantage  to  the  party  who  produces  a  wit- 
ness. On  the  other  hand,  a  different  rule,  by  making  it  necessary 
for  the  court,  during  the  examination  of  a  witness,  constantly  to  de- 
termine what  is  or  is  not  new  matter  upon  which  the  opposite  party 
has  the  right  to  put  leading  questions,  leads  to  confusion  and  delay 
in  the  progress  of  trials.  The  ruling  of  the  court  below  in  the  pres- 
ent case  was  in  conformity  with  our  well  established  practice. 

The  argument,  by  which  the  counsel  for  the  plainliff  sought  to  sus- 
tain the  exceptions,  that  the  judge  declined  to  exercise  his  discretion 
concerning  the  right  of  tlie  plaintiff"  to  put  leading  questions  to  the 

witness  to  serve  his  turn,  and  make  him  his  own  for  the  time  being,  than  to 
entangle  the  justice  of  the  case  in  those  distinctions  with  which  the  English 
Judges  have  surrounded  it.     *    ♦     • " 

HiNT.Ev. — 23 


354  WITNESSES  (Ch.  2 

witness,  seems  to  us  to  be  untenable.  The  ruling  was  not  that  the  court 
might  not,  in  its  discretion,  permit  the  witness  to  be  so  examined  by 
the  party  producing  him ;  but  that  it  could  not  be  claimed  as  a  matter 
of  legal  right. 

Exceptions  overruled.^' 


HOUGHTON  V.  JONES. 

(Supreme'  Court  of  the  United  States,  1S63.     1  Wall.  702,  17  L.  Ed.  503.) 

On  writ  of  error  to  review  a  judgment  in  ejectment  in  favor  of  the 
plaintiff,  rendered  by  the  Circuit  Court  for  the  Northern  District  of 
California. ^^ 

Mr.  Justice  Field.  *  *  *  It  appears  that  the  subscribing  wit- 
ness to  the  deed  introduced  was  present  in  court  during  the  trial,  and_ 
was  examined  with  reference  to  certain  matters,  but  not  touching  the 
execution  of  the  deed.  The  defendant  thereupon  claimed  the  right 
to  cross-examine  him  with  reference  to  such  execution.  The  court  held 
that  the  defendant  must,  for  that  purpose,  call  the  witness,  and  could 
not  properly  make  the  inquiry  upon  the  cross-examination.  In  this 
particular  the  ruling  of  the  court  below  was  correct.  The  rule  has 
been  long  settled,  that  the  cross-examination  of  a  witness  must  be  lim- 
ited to  the  matters  stated  in  his  direct  examination.  If  the  adverse 
party  desires  to  examine  him  as  to  other  matters,  he  must  do  so  by 
calling  the  witness  to  the  stand  in  the  subsequent  progress  of  the 
cause. 

Judgment  affirmed.^' 

2  7  In  Webster  v.  Lee,  5  Mass.  334  (ISOO),  Parker,  C.  .7.,  stated  the  rule  as 
follows: 

"The  first  objection  made  to  the  verdict  by  the  defendant  is.  that  it  was 
not  competent  for  the  plaintiff  to  cross-examine  Dmiumond,  whothor  the  note 
was  or  was  not  submitted  to  the  referees,  as  he  was  interested  in  that  ques- 
tion. 

"It  is  true  that  Drummond  was  an  interested  witness;  and  if  the  plaintiff 
had  produced  him,  and  the  defendant  had  objected  to  his  being  sworn,  the 
objection  must  have  prevailed.  But  a  witness  may,  if  he  consents,  testify 
against  his  own  interest.  In  this  case,  when  Drummond  was  produced  by  the 
defendant,  the  plaintiff  could  not  object,  for  the  witness  was  interested  that 
the  plaintiff  should  recover;  and  as  Drummond  did  not  object,  he  was  very 
properly  admitted.  As  he  was  swoni  in  chief,  the  defendant  having  admit- 
ted his  competeney,  and  having  waived  all  objections  to  his  credit  by  pro- 
ducing him,  the  plaintiff  might  very  properly  cross-examine  him  as  to  all 
matters  pertinent  to  the  issue  on  trial.  We  are  therefore  of  opinion,  that 
there  is  no  weiglit  in  this  objection." 

The  question  was  elalx)rately  considered  by  Justice  Shaw  in  Moody  v. 
Rowoll,  17  Pick.  490,  28  Am.  Dec.  317  (1S35),  and  the  same  conclusion  reached. 

^8  Statement  condensed  and  part  of  opinion  omitted. 

20  The  reporter's  footnote  cites  Philadelphia  &  T.  K.  Co.  v.  Stlmpson,  14 
Pot.  448,  10  L.  VA.  535  (IS-IO),  in  whicli  Justice  Story  made  the  following  state- 
ment of  the  rule:  "P.ut  it  is  now  siiid.  that  the  evidence  was  in  fact  olTered 
for  tlif  imrposo  of  rebutting  or  cxithiining  certain  stiitcmcnts  inad<;  l)y  one 
Ilo-ss  Winans,  a  witness  called  by   the  deCendants,  in  his  answers  upon  his 


Sec.  4)  EXAMINATION   OF   WITNESSES  355 

cross-examination  by  tlie  plaintiff's  counsel.  Now,  this  purpose  is  not  neces- 
sarily, or  even  naturally,  suggested  by  the  purpose  avowed  in  the  record.  Up- 
on his  cross-examination,  Winans  stated:  'I  understood  there  wei'e  arrange- 
ments made  with  the  Baltimore  company.  I  heard  the  company  paid  iJ.j.OOO.' 
Now,  certainly  these  statements,  if  objected  to  by  the  defendants,  would  have 
been  inadmissible  upon  two  distinct  grounds:  (1)  First,  as  mere  hearsay; 
(2)  and  secondly,  upon  the  broader  principle,  now  well  established,  although 
sometimes  lost  sight  of  in  our  loose  practice  at  trials,  that  a  party  has  no 
right  to  cross-examine  any  witness  except  as  to  facts  and  circumstances  con- 
nected with  the  matters  stated  in  his  direct  examination.  If  he  wishes  to 
examine  him  as  to  other  matters,  he  must  do  so  by  making  the  witness  his  own, 
and  calling  him,  as  such,  in  the  subsequent  progress  of  the  cause." 

This  was  probably  based  on  Ellmaker  v.  Buckley,  16  Serg.  &  R.  (Pa.)  72 
(1S27)  cited  in  the  brief  for  the  defendant  in  error. 

Clifford,  J.,  in  Wills  v.  Ru.ssell,  lOO  U.  &.  621,  25  L.  Ed.  GOT  (1879): 

"Testimony  was  introduced  by  the  plaintiffs  to  prove  that  they  naid  the 
duties,  and  they  read  the  protest  in  evidence  to  show  that  they  had  complied 
with  that  condition  precedent  to  a  right  to  recover  back  the  amount  paid. 
Witnesses  were  called  by  them  to  prove  payment  and  protest;  and  one  of 
them  having  testified  to  the  payment  of  the  duties,  and  to  the  fact  of  pro- 
test and  appeal,  the  defendant  claimed  the  right  to  cross-examine  him  as  to 
whether  jute  rejections  were  a  vegetable  substance  similar  to  the  articles 
enumerated  in  the  second  clause  of  the  eleventh  section  of  the  Tariff  Act, 
under  which  the  duties  were  exacted.  Objection  was  made  by  the  plaintiffs; 
but  the  court  overruled  the  objection  and  admitted  the  evidence.  Exception 
was  taken  by  the  plaintiffs  to  the  ruling  of  the  court,  and  that  exception 
constitutes  the  basis  of  the  first  assignment  of  error. 

"Authorities  of  the  highest  character  show  that  the  established  rule  of 
practice  in  the  Federal  courts  and  in  most  other  jurisdictions  in  this  country 
is  that  a  party  has  no  right  to  cross-examine  a  witness,  without  leave  of 
the  court,  as  to  any  facts  and  circumstances  not  connected  with  matters  stated 
in  his  direct  examination,  subject  to  two  necessary  exceptions.  He  may  ask 
questions  to  show  bias  or  prejudice  in  the  witness,  or  to  lay  the  foundation 
to  admit  evidence  of  prior  contradictory  statements.  Subject  to  those  excep- 
tions, the  general  rule  is  that  if  the  party  wishes  to  examine  the  witness 
as  to  other  matters,  he  must  in  general  do  so  by  making  him  his  own  witness 
and  calling  him  as  such  in  the  subsequent  progress  of  the  cause.  The  Phil- 
adelphia &  T.  Ry.  Co.  V.  Stimpson,  14  Pet.  448,  459  [10  L.  Ed.  535  (1840)] ; 
Houghton  V.  Jones,  1  Wall.  702,  706  [17  L.  Ed.  503  (1863)] ;  1  Greenl.  Evid. 
§§  445-447 ;   1  Vnmrt  Evid.  §  529. 

"It  has  been  twice  so  ruled  by  this  court,  and  is  undoubtedly  a  valuable  rule 
of  practice,  and  one  well  calculated  to  promote  regularity  and  logical  order 
in  jury  trials;  but  it  is  equally  well  settled  by  the  same  authorities  that  the 
mode  of  conducting  trials,  and  the  order  of  introducing  evidence,  and  the 
time  when  it  is  to  be  introduced,  are  matters  properly  belonging  very  large- 
ly to  the  practice  of  the  court  where  the  matters  of  fact  are  tried  by  a  jury. 
Both  of  the  cases  referred  to  by  the  plaintiffs  show  that  the  judgment  will 
not  be  reversed  merely  because  it  appears  that  the  rule  limiting  the  cross- 
examination  to  the  matters  opened  by  the  examination  in  chief  was  applied 
and  enforced ;  but  those  cases  do  not  decide  the  converse  of  the  proposition, 
nor  is  attention  called  to  any  case  where  it  is  held  that  the  judgment  will  be 
reversed  because  the  court  trying  the  issue  of  fact  relaxed  the  rule  and  al- 
lowed the  cross-examination  to  extend  to  other  matters  pertinent  to  the  is- 
sue. 

"Cases  not  infrequently  arise  where  the  convenience  of  the  witness  or  of 
the  court  or  the  party  producing  the  witness  will  be  promoted  by  a  relaxation 
of  the  rule,  to  enable  the  witness  to  be  discharged  from  further  attendance; 
and  if  the  court  in  such  a  case,  should  refuse  to  enforce  the  rule,  it  clearly 
would  not  be  a  ground  of  error,  unless  it  appeared  that  it  worked  serious  in- 
jury to  the  opposite  party.  Nothing  of  the  kind  is  shown  or  pretended  in 
this  case." 


356  WITNESSES  (Ch.  2 

DETROIT  &  M.  R.  CO.  v.  VAN  STEINBURG. 

(Supreme  Court  of  Micbigan,  1S6S.     17  Mich.  99.) 

CooLEY,  C.  J.^°  The  action  in  the  court  below  was  brought  by  Van 
Steinburg  to  recover  of  the  railroad  company  for  injury  done  him  by 
one  of  their  engines  at  Holly  station,  on  September  15,  1865.  The 
plaintiff,  it  appears,  was  a  hotel-keeper  at  that  place.  The  track  pass- 
ed between  his  house  and  the  depot,  and  only  about  thirty  feet  there- 
from. He  heard  the  whistle  of  an  approaching  train  when  it  called 
the  station ;  started  to  cross  over  the  track  to  the  depot ;  was  caught 
by  the  engine  as  it  came  up,  and  had  one  foot  taken  off,  and  the  toe 
of  another.  The  defendants  insisted  that  the  injury  was  attributable 
to  his  own  carelessness ;  while  he,  on  his  part,  claimed  that  the  defend- 
ants were  negligent  and  he  was  not.  [There  was  a  verdict  and  judg- 
ment for  plaintiff,  and  defendant  sued  out  a  writ  of  error.]     *     *     * 

I  think  the  judge  erred,  however,  in  restricting  the  cross-examination 
of  S.  H.  Coon,  as  he  did  in  other  particulars.  On  his  direct  examina- 
tion, this  witness  had  testified  that  he  went  to  the  depot  the  morning 
of  the  accident  with  his  carriage.  It  stood  north  of  the  west  end  of 
the  depot  platform,  backed  up  to  it  at  the  northwest  corner.  He  heard 
the  whistle  east  of  the  mile-post,  but  the  train  was  not  in  sight;  he 
stood  in  his  carriage  and  was  looking  for  the  train.  It  came  in  sight 
just  east  of  the  switch.  And  he  then  narrated  the  subsequent  facts, 
including  the  injury  to  the  plaintiff.  On  his  cross-examination  he  was 
asked,  "From  the  hotel,  what  obstructions  are  there  to  prevent  seeing 
the  train  as  well  as  from  the  platform?"  This  question  was  ruled  out, 
as  not  proper  cross-examination  within  the  rule  laid  down  in  People  v. 
Horton,  4  Mich.  67. 

The  case  of  People  v.  Horton,  we  think,  is  overruled,  so  far  as  it  has 
any  bearing  upon  the  present  question,  by  the  cases  of  Chandler  v.  Al- 
lison, 10  Mich.  477 ;  Dann  v.  Cudney,  13  Mich.  239,  87  Am.  Dec.  755, 
and  Thompson  v.  Richards,  14  Mich.  172.  The  case  itself  we  have  al- 
ways regarded  as  a  departure  from  the  true  rule  of  cross-examination, 
and  it  has  had  a  tendency,  greatly  and  unreasonably,  to  embarrass  the 
elucidation  of  the  truth  by  the  sifting  of  witnesses  ever  since  the  case 
was  decided.  When  a  party  places  a  witness  upon  the  stand  to  testify 
to  facts  which  tend  to  support  his  side  of  the  issue  involved,  and  ques- 
tions him  concerning  such  facts,  it  is  tlie  right  of  the  opposite  party, 
on  cross-examination,  to  go  as  fully  into  the  subject  as  may  be  neces- 
sary to  draw  from  the  witness  all  he  may  know  concerning  the  trans- 
action about  which  he  has  testified,  and  to  put  before  the  jury  any 
pertinent  facts  which  will  have  a  tendency  to  controvert  the  testimony 
which  has  been  given  by  the  witness  in  favor  of  the  party  calling  him. 
A  more  restricted  rule  renders  cross-examination  in  many  cases  nearly 

•0  statement  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION   OF   WITNESSES  ^57 

valueless,  and  enables  a  party,  by  careful  questions  to  his  witness,  to 
give  to  the  jury  a  one-sided  and  partial  view  of  the  facts  within  the 
knowledge  of  the  witness,  and  effectually  to  preclude  the  opposite 
party  from  supplementing  the  witness's  statement  with  the  further 
facts  within  his  knowledge  concerning  the  same  transaction,  unless  he 
shall  malce  the  witness  his  own,  in  which  case  he  is  supposed  to  vouch 
for  him  as  credible,  and  has  also  less  privilege. of  searching  examina- 
tion. 

In  the  present  case,  the  facts  which  the  plaintiflF  sought  to  establish, 
were  that  he  was  injured,  and  that  the  neghgence  of  the  defendants 
was  the  proximate  cause..  Necessarily  intermingled  with  this,  however, 
was  the  question  whether  the  plaintiff  had  not  also  been  guilty  of  neg- 
ligence which  materially  contributed  to  the  injuiy;  and  this  question 
^was  so  involved  in  the  examination  of  the  plaintiff's  witnesses,  that  it 
was  impossible  to  keep  it  out  of  view  for  a  moment.  Prima  facie  one 
who  walks  in  front  of  a  train  which  he  knows  is  coming,  and  is  run 
over,  is  guilty  of  some  want  of  prudence;  and  the  plaintiff'  found  it 
necessary  in  this  case  to  put  in  evidence  such  facts  concerning  the  man- 
agement of  the  train  by  defendants  as  would  tend  to  relieve  him  from 
this  apparent  liability  to  censure.  The  distance  at  which  the  train 
could  be  seen  from  the  plaintiff's  hotel,  as  well  as  from  the  depot  plat- 
form, was  an  important  fact  bearing  upon  this  issue ;  and  as  such,  the 
defendants  were  entitled  to  inquire  into  it  of  any  witness  who  had  been 
put  upon  the  stand  to  testify  to  the  negligence  of  the  persons  in  charge 
of  their  train.      *     *     * 

Reversed.^^ 

31  Christiancy,  .7.,  in  Camrau  v.  Dewey,  9  Mich.  381  (1861): 
"It  is  further  essential  to  the  development  of  the  true  logical  idea  of  cross- 
examination  to  observ-e,  that  it  is  the  tendency  of  the  direct  examination 
which  determines  the  subject  of  it,  as  a  test  of  cross-examination:  for  exam- 
ple, it  is  that  essential  or  ultimate  fact  in  the  plaintiffs  case  which  the  di- 
rect examination  tended  to  prove,  which  determines  the  logical  limits  of 
the  cross-examination,  and  not  merely  the  particular  minor  facts  and  cir- 
cumstanees  tending  to  the  proof  of  that  fact  As  the  plaintiff  is  at  liberty 
to  adduce  any  number  of  these  particular  or  secondary  facts,  however  dis- 
connected with  each  other,  so  that  they  tend  to  the  proof  of  the  essential 
resultant  fact  which  he  is  bound  to  establish,  so  must  the  defendant  be 
equally  entitled,  on  cross-examination,  to  elicit  any  number  of  such  particular 
facts,  as  may  tend  to  disprove  that  resultant  fact,  or  to  weaken  the  tend- 
ency, in  its  favor,  of  the  particular  facts  stated  on  the  direct  examination. 

"And  where  two  or  more  main  facts  are  essential  to  the  plaintiff's  prima 
facie  case,  such  as  the  title  of  the  plaintiff,  and  conversion  by  the  defend- 
ant, in  trover,  and  the  direct  examination  has  been  confined  to  matters  tend- 
ing only  to  the  proof  of  one  of  these  main  facts,  the  defendant  should  not 
be  allowed  to  cross-examine  as  to  the  other;  as  this  would  have  no  relation 
to  the  evidence  in  chief,  and  could  not  therefore,  in  any  logical  sense,  be  de- 
nominated a  cross-examination.  Such,  I  think,  are  the  purely  logical  prin- 
ciples of  a  cross-examination." 


358  WITNESSES  '      (Ch.  2 

TENNANT  v.  HAMILTON. 
(House  of  Lords,  1839.     7  Clark  &  F.  122.) 

The  Lord  Chancellor.'^  The  object  of  the  action  in  this  case 
was  to  try  a  question  of  nuisance  to  a-  garden  in  the  neighbourhood 
of  a  manufactory,  which,  it  was  said,  emitted  vapour  and  smoke  prej- 
udicial to  the  property  of  the  pursuer.  A  witness,  David  Smith,  was 
called  for  the  defenders,  and  he  was  examined  as  to  certain  premises 
in  the  neighbourhood  of  the  manufactory;  but  he  was  not  examined 
by  the  party  producing  him  with  respect  to  the  place  called  Glasgow- 
field — not  the  place  in  question  in  the  action,  but  a  place  situated  near 
the  manufactory.  Both  parties  went  into  evidence  for  the  purpose  of 
showing  what  was  the  effect  of  this  manufactory  emitting  smoke 
and  vapour  upon  the  lands  similarly  circumstanced  to  those  of  the 
party  complaining.  Whether  that  was  a  legitimate  mode  of  inquiry 
need  notnow  be  considered;  for  both  parties  pursued  it,  and  for  one 
purpose  it  was  undoubtedly  a  legitimate  mode  of  inquiry,  viz.  for 
ascertaining  what  the  effect  was  of  the  smoke  and  vapour  emitted  by 
this  manufactory.  This  witness  was  examined  as  to  several  lands  in 
the  neighbourhood ;  and  then  a  cross-examination  took  place,  and  the 
witness  says  in  answer,  "he  knows  Glasgow-field;  never  knew  of  any 
damage  done  there."  That  was  not  the  answer  which  the  pursuer, 
cross-examining  the  defenders'  witness,  wished  him  to  give.  He  had 
fixed  him  w^ith  the  knowledge  of  Glasgow-field;  he  intended  to  use 
him  to  show  that  Glasgow-field  had  been  injured  by  the  vapour  and 
smoke  emitted  from  the  manufactory ;  but,  however,  the  answer  given 
was  not  for  the  benefit  of  the  party  cross-examining  him.  Then  the 
counsel  for  the  pursuer  proposed  to  ask  the  witness  "whether  he  had 
known  of  any  sum  having  been  paid  by  the  defenders  to  the  pro- 
prietors of  Glasgow-field,  for  alleged  damage  there  occasioned  by 
the  works?"  The  witness  had  already  said  that  he  knew  of  no  dam- 
I  age  done  there.  If  that  question  had  been  asked  him  by  the  defenders, 
no  doubt  a  great  latitude  in  cross-examination  might  have  been  per- 
mitted to  the  pursuer,  for  the  purpose  as  well  of  ascertaining  what 
he  meant  by  "he  did  not  know,"  as  for  the  purpose  of  testing  the  ac- 
curacy of  his  statement;  but  it  so  happens,  when  he  says  he  knows 
Glasgow-field,  and  never  knew  of  any  damage  done  there,  it  is  an 
answer  given  by  him  to  a  question  of  the  pursuer  in  cross-examining 
him.  The  pursuer  is  entering  into  a  line  of  examinali(jn  for  the  first 
time,  and  having  got  an  answer  wliich  did  not  suit  his  purpose,  he 
endeavours  to  get  rid  of  the  efi'ect  of  that  answer  by  putting  a  ques- 
tion upon  a  point  short  of  what  was  the  witness's  knowledge,  viz. 
"whether  he  had  known  of  any  sum  having  been  paid  by  the  defend- 
ers to  the  proprietors  of  Glasgow-field,   for  alleged  damage?"     The 

«2  Statement  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION  OF  WITNESSES  359 

pursuer  meant,  if  he  could  get  an  answer  favourable  to  his  view,  to 
make  that  part  of  his  case ;  he  meant,  not  being  able  to  get  the  wit- 
ness to  say  that  he  knew  of  any  damage,  to  get  him  to  say  that  which 
he  conceived  would  be  the  next  best  evidence,  but  which,  in  fact, 
would  be  no  evidence  at  all.  If  the  witness  had  answered  in  the  af- 
firmative, that  he  had  known  of  money  being  paid  for  alleged  dam- 
age, it  would  be  no  evidence;  because  money  paid  upon  a  complaint 
made,  paid  merely  to  purchase  peace,  is  no  proof  that  the  demand  is 
well  founded;  it  is  not,  therefore,  to  be  given  in  evidence  in  support 
of  the  fact  of  damage  being  sustained. 

Upon  general  principles,  the  rule  of  law  in  this  country  and  in  Scot- 
land .m.ust  be  the  same:  if  a  pursuer  calls  a  witness,  and  asks  him  as 
to  money  being  paid  for  alleged  damage,  his  answer  in  the  afiirmative 
is  not  evidence  of  actual  damage.  If  the  pursuer  had  made  a  claim 
upon  the  owners  of  the  manufactory  for  damage  done  to  his  field 
from  the  smoke  and  vapour  emitted,  and  the  owners  had  given  money 
to  quiet  his  complaint,  that  would  be  no  evidence  of  the  damage ;  it 
is  money  paid  to  buy  peace  and  to  stop  complaint;  it  is  very  often  a 
wise  thing,  however  unfounded  a  complaint  may  be,  for  parties  to  pay 
a  sum  of  money  in  order  to  quiet  the  party  making  the  complaint.  But 
this  does  not  rest  merely  upon  general  principles.  The  rule  of  law 
in  this  country  has  been  cited  by  the  appellants;  and  from  the  au- 
thorities cited  by  them,  it  appears  there  is  no  distinction  between  the 
two  countries  in  this  respect. 

The  question  clearly  could  not  be  put  in  order  to  elicit  evidence  for 
the  party  making  the  complaint;  but  it  is  said  it  was  admissible  in 
order  to  test  the  credit  of  the  witness.  Now  the  witness  had  said 
nothing  in  his  examination  by  the  party  for  whom  he  was  called, 
touching  this  matter.  He  had  spoken  of  other  properties,  but  he  had 
said  nothing  which  could  lead  to  this  cross-examination,  and  there- 
fore it  was  not  for  the  purpose  of  testing  the  accuracy  or  truth  of 
anything  he  had  said.  The  question  cannot  be  supported  upon  that 
ground,  nor  was  that  the  ground,  as  I  understood  the  argument,  upon 
which  it  was  attempted  to  be  supported,  but  that  it  might  be  put  as  a 
matter  of  inquiry,  with  a  view  to  test  the  witness's  credit.  But  if  it 
be  not  evidence,  it  is  an  inquiry  perfectly  collateral;  an  inquiry  into 
a  matter  which  was  not  relevant  to  the  subject-matter  in  dispute. 
It  does  not  relate  to  the  subject-matter;  and  it  is  an  acknowledged  law 
of  evidence  that  you  cannot  go  into  an  irrelevant  inquiry  for  the 
purpose  of  raising  a  collateral  issue  to  discredit  a  witness  produced  on 
the  other  side. 

On  these  grounds  the  learned  Judge  who  tried  the  cause  was  of 
opinion  that  the  question  was  not  admissible  under  the  circumstances 
of  this  examination ;  and  to  that  ruling  of  the  learned  Judge, — unfor- 
tunately for  all  parties,  because  leading  to  great  and  unnecessary 
expense, — a  bill  of  exceptions  was  tendered,  and  the  Court  of  Session 


360  WITNESSES  -  (Ch.  2 

was  of  opinion  that  the  question  was  admissible.  The  party  against 
whom  that  decision  was  made  necessarily  came  here  in  order  to  have 
that  judgment  considered;  because  the  Court  of  Session,  being  of 
opinion  that  the  ruling  of  the  learned  Judge  before  whom  the  issue  had 
been  tried  was  erroneous,  and  that  the  bill  of  exceptions  was  well 
founded,  had  no  alternative  but  to  direct  a  venire  de  novo.  *  *  * 
Reversed.^^ 


POWERS  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1912.    223  U.  S.  303,  32  Sup.  Ct.  281, 

56  L.  Ed.  448.) 

Defendant  was  convicted  on  a  charge  of  violating  the  statutes  in 
reference  to  distilling  liquors,  etc.  Defendant  had  testified  on  his 
own  behalf  before  the  commissioner  and  was  cross-examined  by  a 
representative  of  the  government.  Several  objections  were  made  to 
the  extent  of  this  cross-examination,  but  were  overruled  by  the  com- 
missioner. At  the  trial  this  examination  of  the  defendant  was  intro- 
duced in  evidence  as  an  admission.^* 

Mr.  Justice  Day.  *  *  *  But  it  is  contended  by  the  defendant  that 
the  bill  of  exceptions  shows  that  the  alleged  cross-examination  was  en- 
tirely irrelevant  and  improper,  and  not  a  legitimate  cross-examination 
of  the  defendant's  testimony  in  his  own  behalf.  It  appears  that  Pow- 
ers testified,  being  charged  with  illegal  conduct  concerning  the  distilla- 
tion of  spirits,  as  already  stated,  that  he  was  at  a  place  about  thirty 
steps  from  the  still,  beating  apples,  as  testified  by  the  government's  wit- 
ness ;  that  Preston  Powers  had  hired  him  to  work  for  him  at  the  price 
of  75  cents  a  day,  and  that  he  put  him  to  beating  apples;  that  the 
witness  had  no  interest  in  the  apples  or  the  product  thereof,  and  no 
interest  in  the  still,  but  was  merely  hired  to  work  by  the  day  at  the 
price  of  75  cents.  Having  taken  the  stand  in  his  own  behalf,  and 
given  the  testimony  above  recited,  tending  to  show  that  he  was  not 
guilty  of  the  offense  charged,  he  was  required  to  submit  to  cross-ex- 
amination, as  any  other  witness  in  the  case  would  be,  concerning  mat- 
ter pertinent  to  the  examination  in  chief.  The  cross-examination,  in 
the  answer  elicited,  tended  to  show  that  defendant  had  worked  at  a  dis- 
tillery the  fall  before  with  Preston  Powers,  the  man  he  alleged  he  was 
working  for  at  beating  apples  on  the  occasion  when  the  government 
witness  saw  him  near  the  still,  and  had  made  brandy  near  his  house, 
and  had  paid  Preston  Powers  to  assist  him.  This,  we  think,  might  be 
regarded  as  having  some  relevancy  to  the  defendant's  claim  as  to  the 
innocent  character  of  his  occupation  at  the  time  charged.    It  has  a  tcn- 

»3  See  the  earlier  case  of  Spenceley  v.  De  WlUott,  7  East,  108  (1S05),  ex- 
cluding fTOss-<,-x:iiiiination  as  to  contnict.s  other  tluiii  the  one  in  i.s.sue. 
»*  SLatcniout  con(l(.'n.scd  and  purL  of  opinion  omitted. 


Sec.  4)  EXAMINATION   OF   WITNESSES  361 

dency  to  show  that  defendant  knew  the  character  of  the  occupation  in 
which  he  was  then  engaged,  having  worked  before  with  Preston  Pow- 
ers at  a  distillery  and  made  brandy  with  him,  and  did  not  exceed  the 
limits  of  a  proper  cross-examination  of  the  witness.  As  to  the  sugges- 
tion that  section  860  of  the  Revised  Statutes  (U.  S.  Comp.  Stat.  1901, 
p.  661)  prevented  the  introduction  of  the  testimony  given  by  defendant 
before  the  commissioner,  that  section,  providing  that  no  pleading,  nor 
any  discovery  or  evidence  obtained  from  a  party  by  means  of  a  judi- 
cial proceeding  shall  be  used  in  evidence  against  him  in  a  criminal  pro- 
ceeding, can  have  no  bearing  where,  as  in  the  present  case,  the  accused 
voluntarily  testified  in  his  own  behalf  in  the  course  of  the  same  pro- 
ceeding, thereby  himself  opening  the  door  to  legitimate  cross-escami- 
nation.  See  Tucker  v.  United  States,  151  U.  S.  164,  168,  38  L.  Ed. 
112,  114,  14  Sup.  Ct.  Rep.  299. 
Judgment  affirmed. 


MacDONNEIvL  v.   EVANS. 

(Court  of  Common  Pleas,  1852.    11  C.  B.  930.) 

This  was  an  action  of  assumpsit  upon  a  bill  of  exchange,  by  en- 
dorsee against  acceptor. 

The  cause  was  tried  before  Jervis,  C.  J.,  at  the  sittings  in  London 
after  last  Trinity  Term.  A  witness  called  on  the  part  of  the  plaintiff, 
being  asked  on  cross-examination  by  the  defendant's  counsel,  who 
produced  a  letter  purporting  to  be  written  by  the  witness, — "Did  you 
not  write  that  letter  in  answer  to  a  letter  charging  you  with  forgery  ?" 
— the  counsel  for  the  plaintiff  objected,  that,  inasmuch  as  this  was  an 
attempt  to  get  in  evidence  the  contents  of  a  written  paper  without  pro- 
ducing the  paper  itself,  the  question  was  not  admissible. 

The  Lord  Chief  Justice,  holding  the  objection  to  be  a  good  one,  re- 
fused to  allow  the  question  to  be  put ;   and  the  plaintiff  had  a  verdict. 

Bramwell,  in  Michaelmas  Term  last,  obtained  a  rule  nisi  for  a  new 
trial,  on  the  ground  that  the  evidence  was  improperly  rejected. 

Jervis,  C.  J.^^  I  am  of  opinion  that  this  rule  should  be  discharged. 
It  is  unnecessary,  as  it  seems  to  me,  for  the  court  to  lay  down  any 
general  rule  upon  this  subject;  it  is  enough  to  dispose  of  the  question 
which  was  raised  at  the  trial.  If  even  it  had  been  necessary  for  us  to 
declare  the  general  principle,  we  should  not  have  permitted  ourselves  to 
be  influenced  by  the  suggestion  of  hardship,  to  bend  the  rule  to  meet 
the  supposed  justice  of  the  particular  case.  The  question  put  and  ob- 
jected to  at  the  trial,  was  this, — "Did  you  not  write  that  letter  in  an- 
swer to  a  letter  charging  you  with  forgery?"  I  yielded  to  the  objec- 
tion, and  refused  to  allow  the  question  to  be  put.     Notwithstanding 

8  5  Opinion  of  Maule,  J.,  omitted. 


3G2  WITNESSES  (Ch.  2 

some  opinions  which  have  been  expressed  upon  the  subject,  I  have 
never  entertained  any  doubt  that  the  inquiry  was  inadmissible.  The 
rule  of  evidence  which  governs  this  case,  is  apphcable  to  all  cases  where 
witnesses  are  sworn  to  give  evidence  upon  the  trial  of  an  issue.  That 
rule  is,  that  the  best  evidence  in  the  possession  or  power  of  the  party 
must  be  produced.  \Miat  the  best  evidence  is,  must  depend  upon  cir- 
cumstances. Generally  speaking,  the  original  document  is  the  best  evi- 
dence ;  but  circumstances  may  arise  in  which  secondary  evidence  of 
the  contents  may  be  given.  In  the  present  case,  those  circumstances 
do  not  exist.  For  anything  that  appeared,  the  defendant's  counsel 
might  have  had  the  letter  in  his  hand  when  he  put  the  question.  It  was 
sought  to  give  secondary  evidence  of  the  contents  of  a  letter,  without 
in  any  way  accounting  for  its  absence,  or  showing  any  attempt  made 
to  obtain  it.  It  is  enough  for  us  to  decide  upon  the  application  of  the 
general  rule.  The  best  evidence  of  the  contents  of  the  document  was 
not  tendered.  Much  of  that  which  has  been  urged  by  Mr.  Macnamara 
may  be  very  well  founded,  and  may  form  cogent  argument  for  a  legis- 
lative consideration  of  the  subject;  but  it  is  in  direct  conflict  with  au- 
thorities to  which  we  feel  ourselves  bound  to  defer.  It  is  said  that 
the  question  ought  to  have  been  allowed,  because  the  answer  might 
have  shown  the  witness  to  be  unworthy  of  credit.  But  The  Queen's 
case  ^^  determines  that  that  course  cannot  be  permitted.  The  argument 
which  has  been  urged  here  to-day  seeks  to  show  that  the  opinion  of  the 
judges  in  that  case  was  erroneous.  It  seems  to  me,  however,  that  that 
reasoning  cannot  prevail. 

Williams,  J.  I  concur  with  the  rest  of  the  court,  though  I  must 
confess  it  is  not  without  some  difficulty  that  I  have  brought  my  mind 
to  this  conclusion.  I  had  thought  that  the  rules  as  to  primary  evidence 
were  to  be  relaxed  somewhat  with  respect  to  the  cross-examination  of 
a  witness  as  to  facts  in  themselves  foreign  to  the  issues  in  the  cause, 
and  going  only  to  his  credit.  That  is  in  accordance  with  what  is  laid 
down  in  the  7th  edit,  of  Phillipps  on  Evidence,  and  adopted  in  2  Rus- 
sell on  Crimes,  p.  927, — for  which  adoption  I  am  in  some  degree  re- 
sponsible ;  though  I  should  observe  that  my  contributions  to  that  work, 
which  were  made  at  a  very  early  period  of  my  professional  life,  were 
carefully  revised  (as  appears  from  the  preface  to  the  2d  edition)  by  the 
learned  author;  than  whom  I  may  venture  to  say  no  one  possessed 
more  careful  and  accurate  habits  of  mind,  and  few  had  more  expe- 
rience in  the  practice  of  the  criminal  law.  That  notion  was  founded 
mainly  upon  the  existence  of  the  practice  of  cross-examining  a  witness, 
for  the  purpose  of  discrediting  him,  as  to  his  having  been  convicted 
of  crime,  or  become  bankrupt,  or  insolvent,  and  the  like.  I  assumed 
that  it  was  matter  of  right,  as  it  certainly  was  matter  of  practice,  so  to 

88  In  the  Quoen'.s  Case,  2  Br.  &  Bing.  284  (1820),  the  advisory  opinion  of  the 
judges  to  the  House  of  Lords  was  to  the  effect  that  the  document  should  be 
suhmitted  to  the  witness  for  identification,  and  cross-examination  as  to  its 
contents  should  not  be  allowed. 


Sec.  4)  EXAMINATION   OF   WITNESSES  3G3 

cross-examine  a  witness,  without  producing  any  record  "  of  conviction, 
or  any  proceedings  in  the  bankrupt  or  insolvent  court.  I  have  never 
known  such  things  to  be  produced ;  and  I  do  not  see  how  they  could 
be.  I  did  not  conceive  that  this  relaxation  was  at  all  inconsistent  with 
the  rule  laid  down  by  the  judges  in  The  Queen's  case,  of  the  propriety 
of  which  I  have  never  entertained  a  doubt;  for,  it  appears  to  me 
that  that  refers  to  cases  where  the  examination  is  with  a  view  to  lay  a 
foundation  for  showing  by  independent  evidence  that  the  witness  has 
made  former  statements  at  variance  with  his  present  testimony,  and 
not  to  cases  where  it  goes  merely  to  discredit  the  witness  by  his  own 
admission,  and  where  his  denial  is  conclusive.  But  the  cogent  ob- 
servations of  my  Lord  and  my  learned  Brothers,  in  the  course  of  this 
discussion,  have  convinced  me  that  I  was  wrong  in  supposing  that  the 
practice  to  which  I  have  adverted  was  matter  of  right ;  and  I  now  en- 
tertain serious  doubts  as  to  the  correctness  of  my  former  impression. 
It  is  unnecessary,  however,  upon  the  present  occasion  to  determine 
whether  or  not  that  opinion  ought  to  be  altogether  abandoned,  because 
I  agree  with  the  rest  of  the  court  that  the  particular  question  which 
was  proposed  to  be  put  to  the  witness  in  this  case,  regard  being  had 
to  its  form,  and  to  the  object  witli  which  it  was  put,  was  objectionable, 
and  was  properly  disallowed. 
Rule  discharged.^* 


CLEMENS  et  al.  v.  CONRAD. 
(Supreme  Court  of  Michigan,  ISCO.     19  Mich.  170.) 

Assumpsit  for  the  breach  of  a  contract  for  the  sale  of  a  quarry.  ^ 
A  witness,  called  by  the  defendants,  was  asked,  on  cross-examina- 
tion, "Were  you  indicted,  in  1865,  in  Sandusky,  for  smuggling?"    This 
question  was' objected  to,  but  allowed  by  the  circuit  judge.^^ 

3T  In  Rex  V.  Inhabitants  of  Careinion,  8  East,  78  (1806)  it  was  held  that  a 
conviction  to  disqualify  a  witness  could  not  be  proved  by  the  examination  of 
the  witness  himself,  but  the  record  must  be  produced.  The  rule  as  to  the 
examination  in  regard  to  the  contents  of  documents  appears  to  have  been 
more  liberal  on  the  voir  dire  than  on  cross-examination. 

Howell  V.  Look.  2  Campbell,  14  (1809):  ,       . 

"A  survevor  called  on  the  part  of  the  plaintiff  stated,  in  cToss-examination, 
that  he  was  her  son-in-law,  and  that  she  carried  on  the  business  for  the 
benefit  of  her  late  husband's  estate.  He  was  then  asked,  what  interest  he  and 
his  wife  took  imder  the  will  of  the  deceased?  . 

"Lord  Ellenborough.  The  contents  of  written  instruments  may  certainly 
be  enquired  into  in  an  examination  upon  the  voir  dire ;  but  if  there  is  to  be 
such  an  examination,  it  must  take  place  in  its  due  order— before  the  exami- 
nation in  chief.  If  at  any  time  it  appears  incidentally  that  the  witness  is  in- 
terested, I  will  strike  out  his  evidence ;  but  in  cross-examination  I  cannot  al- 
low "you  the  privileges  of  an  examination  upon  the  voir  dire.  The  question 
is  irregular." 

3  8  See  comments  on  the  principal  case  in  Henman  v.  Lester,  12  C.  B.  (N. 
S.)  776  (1862). 

3  9  Statement  condensed  and  opinions  on  other  points  omitted. 


364  WITNESSES  (Ch.  2 

Coole;y,  C.  J.  *  *  *  The  right  to  inquire  of  a  witness  on  cross- 
examination  whether  he  has  not  been  indicted  *°  and  convicted  of  a 
criminal  offense,  we  regard  as  settled  in  this  state  by  the  case  of  Wil- 
bur V.  Flood,  16  Mich.  40,  93  Am.  Dec.  203.  It  is  true  that  in  that 
case  the  question  was,  whether  the  witness  had  been  confined  in  State 
prison ;  not  whether  he  has  been  convicted ;  but  confinement  in  State 
prison  presupposes  a  conviction  by  authority  of  law,  to  justify  the 
one  inquiry  and  not  the  other  would  only  be  to  uphold  a  technical 
rule,  and  at  the  same  time  point  out  an  easy  mode  for  evading  it  with- 
out in  the  least  obviating  the  reasons  on  which  it  rests.  We  think  the 
reasons  for  requiring  record  evidence  of  conviction  have  very  little 
application  to  a  case  where  the  party  convicted  is  himself  upon  the 
stand  and  is  questioned  concerning  it,  with  a  view  to  sifting  his  char- 
acter upon  cross-examination.  The  danger  that  he  will  falsely  testify 
to  a  conviction  which  never  took  place,  or  that  he  may  be  mistaken 
about  it,  is  so  slight,  that  it  may  almost  be  looked  upon  as  purely 
imaginery,  while  the  danger  that  worthless  characters  will  unexpect- 
edly be  placed  upon  the  stand,  with  no  opportunity  for  the  opposite 
party  to  produce  the  record  evidence  of  their  infamy,  is  always  palpa- 
ble and  imininent.  We  prefer  the  early  English  rule  on  tliis  subject 
(Priddle's  Case,  Leach,  C.  L.  382 ;  King  v.  Edwards,  4  T.  R.  440) ; 
and  for  the  reasons  which  were  stated  in  Wilbur  v.  Flood.     *     *     * 

Campbell  and  Cpiristiancy,  JJ.,  concurred  with  the  Chief  Justice. 

Graves,  J.  (dissenting).  *  *  *  On  the  cross-examination  of  a 
witness  for  the  plaintiffs  in  error,  he  was  asked  if  he  had  not  been  in- 
dicted at  Sandusky,  in  1865,  for  smuggling,  and  if  he  was  not  con- 
victed, and  both  questions  were  objected  to  by  plaintiffs, in  error,  on 
the  ground  that  they  supposed  the  existence  of  better  evidence  of 
the  facts  called  for;  but  the  objection  was  overruled,  and  the  witness 
stated  that  he  had  been  convicted  of  smuggling. 

This  ruling  is  supposed  to  be  supported  by  Wilbur  v.  Flood,  16 
Mich.  40,  93  Am.  Dec.  203,  but  I  think  the  cases  are  quite  distin- 
guishable. In  the  case  cited,  the  defendant  on  cross-examination,  was 
asked  if  he  had  ever  been  confined  in  the  State  prison,  and  my  brethren 
were  of  opinion  that  the  question  was  not  objectionable  as  an  ofl"er  to 
prove  by  parol  what  rested  in  record  evidence.  It  is  true  that  the  opin- 
ion of  my  brother  Campbell  may  seem  to  have  gone  further  than  this, 
but  the  point  decided  did  not.  Whether  the  witness  had  been  confined 
in  State's  prison,  was  fact  of  personal  experience  and  involving  a  ques- 
tion of  identity,  and  no  higher  or  better  evidence  in  contemplation  of 
law  could  be  furnished  than  the  parol  evidence  of  the  witness.  If  it 
be  said  that  the  question  implied  a  confinement  under  sentence,  and 
hence  that  an  affirmative  answer  must  have  tended  to  prove  a  convic- 

«o  In  I'f'ople  V.  Morrison,  195  N.  Y.  IIG,  88  N.  E.  21,  133  Am.  St.  Rop.  780, 
16  Ann.  Cus.  871  (1909),  It  was  hold  that  a  witness  could  not  be  cross-exam- 
ined iis  lo  hidictiueuts  against  bhu,  for  the  reason  that  au  iudictmeut  is  no 
proof  of  guilt. 


Sec.  4)  EXAMINATION   OF   WITNESSES  305 

tion ;  the  reply  is  that  the  circumstance  that  a  piece  of  evidence  might 
tend' by  way  of  argument  or  inference  to  prove  a  fact  not  lawfully 
susceptible  of  proof  by  such  evidence,  would  be  no  ground  for  ex- 
cluding it,  if  admissible  for  another  purpose,  nor  could  its  admission 
for  the  legitimate  purpose  establish  its  application  to  the  illegitimate 

one. 

In  deciding  the  point  in  Wilbur  v.  Flood,  I  thmk  the  court  did  not 
purpose  to  assume  that  the  nature  of  the  evidence  requisite  to  show 
a  conviction  was  at  all  involved,  since  the  raising  of  the  question  which 
was  there  decided,  did  not  depend  on  the  presence  or  absence  of  record 
evidence  of  conviction,  but  was  wholly  independent  of  any  considera- 
tion of  that  kind.  The  point  was  not  whether  the  witness  had  been 
convicted,  but  whether  the  question  put  to  him  supposed  any  higher  at- 
tainable evidence  of  his  own  confinement  than  his  own  testimony,  and 
the  case  on  that  branch  of  it,  is  only  authority  in  my  judgment,  for  a 
negative  answer  to  that  proposition.  Indeed,  such  seems  tcj)  be  the 
necessary  deduction,  since  it  does  not  appear  to  have  been  claimed  by 
counsel,  or  advanced  by  my  brethren,  that  the  settled  distinction  be- 
tween primary  and  secondary  evidence  was  inapplicable  to  cross-ex- 
amination. 

In  the  present  case  the  party  resorted  in  the  first  instance  to  verbal 
testimony  to  prove  the  proceedings  and  judgment  of  a  court  of  record, 
and  not  a  distinct  and  independent  fact  of  personal  experience  like 
that  of  detention  in  a  particular  place.  Whether  the  witness  had  been 
indicted  and  convicted  was  an  inquiry  which  involved  several  consid- 
erations of  legal  import,  the  technical  nature  of  which,  he  could  not 
be  supposed  to  know,  while  the  proof  which  that  inquiry  called  for 
could  be  legally  made  by  exhibiting  the  record,  or  if  necessary  by 
submitting  evidence  of  its  contents.  The  plaintiffs  in  error  were  en- 
titled to  insist,  that  the  credibility  of  their  witness  should  not  be  as- 
sailed by  a  species  of  proof  not  authorized  by  the  rules  of  evidence ; 
and  in  my  view  it  was  not  competent  under  any  circumstances  to  re- 
quire the  witness  to  state,  what  at  best  could  be  nothing  more  than 
his  inference  in  a  matter  of  law,  and,  in  any  aspect  of  the  case,  that 
the  contents  of  the  record  were  not  provable  by  any  sort  of  verbal ^ 
testimony  so  long  as  better  evidence  was  not  shown  to  be  unattain-' 

able. 

The  general  rule  is  undisputed,  and  the  necessities  of  cross-exami- 
nation have  not  hitherto  been  deemed  sufficient  to  dispense  with  it. 

If  we  now  discard  the  principle  upon  an  assumption  in  favor  of  the 
party  cross-examining,  that  he  cannot  prepare  before  hand  to  meet 
its  requirements,  we  can  only  do  so  by  imperiling  the  existence  of  the 
rule,  and  by  ignoring  the  reasons  for  its  enforcement  which  are  plain- 
ly apparent  in  the  uncertainty  and  danger  of  personal  unprofession- 
al testimony  in  such  a  case,  and  also  quite  probably  existing  in  the  in- 
ability of  the  party  calling  the  witness  to  anticipate  an  attack  of  the 
mode  and  kind  made  in  this  action.    The  King  v.  The  Inhabitants  of 


o 


66  WITNESSES  (Ch.  2 


Castell  Careinlon,  8  East,  77;   Hall  v.  Brown,  30  Conn.  551;  Doe  ex 
dem.  Sutton  v.  Reagan,  5  Blackf.  217,  219,  33  Am.  Dec.  466;    New- 
comb  V.  Griswold,  24  N.  Y.  298;    Clement  v.  Brooks,  13  N.  H.  92, 
Commonwealth  v.  Ouin,  5  Gray,  478.     *     *     * 
Judgment  affirmed.*^ 

ELLIOTT  V.  BOYLES. 

(Supreme  Court  of  Pennsj'lvania,  1857.     31  Pa.  65.) 

Error  to  the  Common  Pleas  of  Somerset  County. 

This  was  an  action  of  slander,  by  Peter  Boyles  and  Sarah  C,  his 
wife,  against  John  Elliott.  A  narr.  was  filed,  in  which  it  was  alleged 
that  Elliott  had  charged  that  a  man  by  the  name  of  Cramer  had  had 
criminal  intercourse  with  Mrs.  Boyles,  before  her  marriage  with 
Boyles.  An  additional  count  was  filed,  by  leave  of  the  court,  in 
which  it  was  alleged  the  defendant  said,  "If  the  dirty  strumpet  knew 
that  I  hold  her  future  happiness  or  misery  in  my  hands,  she  would 
keep  her  mouth  shut." 

The  speaking  of  the  words  laid  in  the  first  count,  was  proved  by 
Dr.  Gorman,  and  on  his  cross-examination,  the  counsel  for  the  de- 
fendant proposed  to  ask  him,  whether  he  "did  not  commit  wilful  and 
corrupt  perjury,  in  a  case  in  the  Quarter  Sessions  of  Somerset  coun- 
ty." This  question  was  objected  to,  and  rejected  by  the  court,  and 
at  the  instance  of  defendant's  counsel,  a  bill  of  exceptions  was  sealed. 
[The  jury  returned  a  verdict  for  plaintiff,  upon  which  judgment  was 
entered.] 

LowRiE,  J.*2  *  ♦  *  Witnesses  often  suffer  very  unjustly  from 
this  undue  earnestness  of  counsel,  and  they  are  entitled  to  the  watchful 
protection  of  the  court.  In  the  court,  they  stand  as  strangers,  sur- 
rounded with  unfamiliar  circumstances,  giving  rise  to  an  embarrass- 
ment known  only  to  themselves,  and  in  mere  generosity  and  common 
humanity,  they  are  entitled  to  be  treated,  by  those  accustomed  to 
such  scenes,  with  great  consideration ;  at  least,  until  it  becomes  mani- 
fest that  they  are  disposed  to  be  disingenuous.  The  heart  of  the  court 
and  jury,  and  all  disinterested  manliness,  spontaneously  recoils  at  a 
harsh  and  unfair  treatment  of  them,  and  the  cause  that  adopts  such 
treatment  is  very  apt  to  suffer  by  it;    it  is  only  where  weakness  sits 

*i  For  a  collection  of  the  cases  on  Ihls  vexed  question,  sec  note  to  Dottcrer 
V.  State,  30  L.  R.  A.  (N.  S.)  S4G  (1909). 

In  a  number  of  states  cross-examination  as  to  conviction  is  expressly  al- 
lowed bv  statute;  e.  j?..  Rev.  St.  Mo.  3909,  §  OHSn ;  Tlurd's  Rev.  St.  111.  1913, 
ch.  51.  §  1.  Rut  .see  People  v.  Goodman.  283  111.  414,  119  N.  E.  429  (1918), 
that  the  statute  only  applies  to  civil  cases,  and  that  in  crhiiimil  cases  the 
record  must  be  produced. 

Where  a  defciidnnt  has  tostlficd  as  a  witnes.s,  his  prior  conviction,  to  dis- 
credit lilm,  C!\niiot  he  proved  by  his  extrajudicial  admission.  I'eople  v.  Car- 
dillo,  2(/r  N.  Y.  70.  1(X>  N.  K.  715,  Ann.  Cms.  1914C,  255  (1912J. 

*2  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION  OF   WITNESSES  3G7 

in  judgment,  that  it  can  benefit  any  cause.  Add  to  this,  that  a  mind 
rudely  assailed,  naturally  shuts  itself  against  its  assailant,  an5  reluct- 
antly communicates  the  truths  that  it  possesses. 

We  do  not  at  all  feel  authorized  to  say,  that  these  remarks  are  de- 
manded by  anything  that  took  place  on  the  trial  of  this  cause ;  but 
they  are  suggested  by  the  question  put  by  the  counsel  of  the  defendant 
below,  and  by  the  view  taken  of  it  by  the  opposite  counsel.  We  do 
not  at  all  know,  who  put  the  question,  or  how  it  was  put;  but  we  are 
sure  that  the  counsel  who  argued  the  cause  here  are  most  respectable 
and  considerate. 

The  question  put  to  the  witness  on  his  cross-examination,  and  re- 
jected by  the  court  at  the  instance  of  the  opposite  party,  was:  Wheth- 
er he  did  not  commit  wilful  and  corrupt  perjury  in  a  case  in  the 
Quarter  Sessions? 

The  counsel  who  proposed  it  were  entirely  mistaken  in  supposing 
that  a  negative  answer  would  open  the  door  for  proving  the  -affirm- 
ative, in  order  to  contradict  the  witness ;  for  the  answer  would  have 
been  conclusive  of  the  fact,  it  being  a  fact  entirely  collateral  to  the 
issue.  1  Greenl.  Evid.  §  449.  If  such  a  mode  of  discrediting  a  wit- 
ness were  allowable,  it  is  easy  to  see  that,  on  the  single  question  of  the 
credibility  of  a  single  witness,  the  number  of  collateral  issues  to  be 
tried  might  be  entirely  indefinite. 

But  the  purpose  of  the  question,  if  seriously  put,  was  to  obtain 
an  answer  that  would  disgrace  the  witness,  and  expose  him  to  a 
criminal  prosecution ;  and  it  is  only  in  exceptional  cases  that^  such 
questions  can  be  properly  asked  of  a  witness.  This,  however,  is  the 
privilege  of  the  witness,  and  not  the  right  of  the  other  party.  We 
think  that  we  ought  to -say,  that  such  a  question  as  this  ought  never 
to  be  asked  of  any  witness;  for  no  witness  ought  to  answer  it  even 
if  allowed  to   do  so.     1   Greenl.  Evid.  §§  451-455;    1    Phil    Evid. 

279. 

And  the  question  is  entirely  illegitimate  as  a  mode  of  attacking  the 
credibility  of  a  witness.  If  a  man  is  received  among  his  neighbours 
as  fully  entitled  to  credit  for  veracity,  a  court  and  jury  can  have  no 
grounds  for  discrediting  him,  except  such  as  may  arise  from  his 
want  of  intelligence  or  candour,  from  his  contradictions  or  partisan- 
ship in  testifying  before  them.  The  fact  that  those  who  are  well  ac- 
quainted with  his  home  reputation,  know  it  be  now  undoubted,  is 
not  set  aside  by  any  single  crime,  or  even  many  of  them,  that  he  may 
long  ago  have  •  committed.  If  his  reputation  still  rises  above  that, 
he  is  credible  still,  for  the  taint  of  criminality  is  not  entirely  indelible. 

Hence  the  most  proper  test  of  character,  before  human  tribunals 
is  reputation,  and  not  single  acts.  And  it  is  the  only  practicable  one ; 
for  the  witness  or  the  party  calling  him  can  be  prepared  for  no  other, 
and  the  court  can  administer  no  other ;  for  it  cannot  possibly  try  col- 
lateral issues  or  the  events  of  every  witness's  life,  in  order  to  decide 


368  WITNESSES  (Ch.  2 

the  controverted  cause.  1  Greenl.  Ev.  §§  461-469.  It  would  be  ab- 
solutely* intolerable  that  a  man,  by  being  brought  into  court  as  a 
witness,  should  be  bound  to  submit  all  the  acts  of  his  life  to  the  ex- 
posure of  malice,  under  the  pretence  of  testing  his  credibility.  If 
such  were  the  test,  courts  would  often  present  in  language  and  tem- 
per, scenes  of  unmitigated  ruffianism,  and  the  means  of  enforcing 
law  and  order  in  society,  would  be  denounced  as  sources  of  corrup- 
tion and  disorder.  *  *  * 
Judgment  affirmed. 


STATE  V.  ABBOTT. 

(Supreme  Court  of  Kansas,  1902.     65  Kan.  1.39.  69  Pac.  160.) 

Johnston,  J.*'  John  Abbott  was  prosecuted  upon  the  charge  of 
rape,  committed  on  the  person  of  Desdemonia  Harrolson,  a  girl  un- 
der 18  years  of  age,  and  he  was  convicted  of  an  attempt  to  commit 
that  offense.  Mrs.  Sadie  Stutzman  was  the  mother  of  the  girl  and 
the  prosecuting  witness.  It  was  claimed  that  Mrs.  Stutzman  and  the 
defendant  had  been  unduly  intimate  for  several  months  prior  to  the 
commission  of  the  alleged  offense,  and  that  their  illicit  relations  had 
been  brought  to  the  knowledge  of  her  husband;  that  Mrs.  Stutzman 
met  the  defendant  in  the  woods  near  her  house,  in  the  absence  of  her 
husband,  and  demanded  money  from  the  defendant,  which  was  not 
furnished;  and  that  then  she  began  the  prosecution  against  the  de- 
fendant for  the  offense  against  her  daughter.  She  claims  to  have 
known  of  the  alleged  offense  within  a  few  hours  after  its  commis- 
sion, and  it  is  said  she  made  no  complaint  for  more  than  a  month,  nor 
until  the  demand  for  money  was  refused.  It  is  claimed  by  the  de- 
fendant that  the  prosecution  was  malicious;  that  it  was  brought  to 
blackmail  him,  and  to  appease  Mrs.  Stutzman's  husband,  who  had 
learned  of  her  infidelity.  After  she  had  testified  in  behalf  of  the 
state,  she  was  asked  on  cross-examination  if  it  was  not  a  fact  that,  from 
October  of  the  previous  year  until  within  a  few  days  before  demand- 
ing the  money  from  the  defendant,  she  had  met  him  in  the  timber  near 
the  house  and  had  illicit  relations  with  him ;  but  the  court,  on  ob- 
jection of  the  county  attorney,  excluded  the  testimony.  A  further 
effort  was  made  to  show  the  relations  between  her  and  the  defendant 
immediately  prior  to  the  demand  for  money  and  the  commencement 
of  the  prosecution,  but  the  court  would  not  permit  inquiry  to  be 
made. 

It  was  competent  for  the  defendant  to  cross-examine  the  witness  as 
to  her  antecedents,  character,  and  past  conduct,  and  thus  impair  her 
credibility.  This  line  of  inquiry  became  important  because  of  the  con- 
tention that  the  prosecution  was  prompted  by  the  malice  of  this  wit- 

4»  I'art  of  opinion  oiuittod. 


Sec.  4)  EXAMINATION   OF   WITNESSES  3G9 

ness,  resulting  from  a  failure  to  extort  money,  and  some  of  the  circum- 
stances surrounding  the  case  seem  to  justify  a  full  cross-examination 
as  to  her  past  conduct  and  character.  There  is  no  better  method  of 
sifting  the  conscience  and  testing  the  veracity  and  credibility  of  a  wit- 
ness than  by  cross-examination,  and  there  is  abundant  authority  hold- 
ing that,  for  the  purpose  of  impairing  the  credibility  of  the  witness, 
he  may  be  cross-examined  as  to  specific  acts  tending  to  discredit  him, 
although  such  acts  are  irrelevant  and  collateral  to  the  main  issue.  State 
V.  Pfefferle,  36  Kan.  90,  12  Pac.  406;  Slate  v.  Probasco,  46  Kan. 
310,  26  Pac.  749;  State  v.  Wells,  54  Kan.  161,  17  Pac.  1005;  State  v. 
Park,  57  Kan.  431,  46  Pac.  713;  State  v.  Greenburg,  59  Kan.  404, 
53  Pac.  61 ;  Brandon  v.  People,  42  N.  Y.  265 ;  People  v.  Casey,  72  N. 
Y.  393;  Hanoff  v.  State,  Z7  Ohio  St.  178,  41  Am.  Rep.  496;  Tla- 
koo-yel-lee  v.  U.  S.,  17  Sup.  Ct.  855,  42  L.  Ed.  166;  Martin  v.  State, 
125  Ala.  64,  28  South.  92.  In  the  Case  of  Tla-koo-yel-lee  a  witness 
testified  against  her  husband,  and  on  cross-examination  questions  were 
asked  with  a  view  to  showing  that  since  the  arrest  of  her  husband 
she  had  been  living  with  another  person  as  his  wife,  under  an  agree- 
ment that  if  her  husband  was  convicted  they  should  continue  to  live 
together  as  husband  and  wife.  The  supreme  court  of  the  United 
States  held  that  the  questions  were  material,  as  bearing  upon  the  char- 
acter and  credibility  of  the  witness,  and  that  their  exclusion  was  prej- 
udicial error.  In  Martin  v.  State,  supra,  a  witness  testified  that  the 
defendant  had  purchased  certain  meat  which  he  was  charged  with 
stealing;  and,  with  a  view  of  showing  bias  and  prejudice,  it  was  held 
to  be  proper  to  cross-examine  the  witness  as  to  her  conduct  with 
the  defendant,  although  it  involved  illicit  sexual  intercourse,  so  long 
as  she  did  not  claim  immunity  from  answering  on  account  of  subject- 
ing herself  to  criminal  prosecution,  or  its  tendency  to  degrade  her. 
Following  these  authorities,  it  must  be  held  that  the  refusal  of  the 
court  to  permit  a  full  cross-examination  of  Mrs.  Stutzman  was  mate- 
rial error.  *  *  * 
Reversed.** 

44  Graves,  J.,  in  People  v.  Arnold,  40  Mich.  710  (1879):  "On  the  cross-ex- 
amination of  the  witness  Sabin,  he  swore  that  he  had  formerly  been  a  mem- 
ber of  the  firm  of  Granger  and  Sabin,  bankers,  at  Detroit.  Defendant's  coun- 
sel then  asked  this  question:  'Did  you  not,  while  a  member  of  that  firm,  ex- 
tract from  an  envelope  securities  which  were  left  in  your  vault  for  safe  keep- 
ing, and  use  their  proceeds  in  stock  speculations  in  New  York?'  The  court  on 
the  unexplained  objection  of  the  prosecuting  attorney  refused  to  allow  the 
question.  We  think  this  ruling  was  not  well  advised.  It  was  important  for 
the  defendant  that  the  jury  should  be  informed  as  far  as  practicable,  with- 
out infringement  of  the  rules  of  law,  in  regard  to  the  moral  character  and 
antecedents  of  the  witness,  and  the  question  was  designed  to  elicit  such  in- 
formation. No  doubt  the  witness  might  have  declined  to  answer  under  the 
acknowledged  rule,  that  no  one  can  be  compelled  to  criminate  himself.  But 
this  is  a  matter  of  personal  privilege  which  a  witness  may  waive,  and  is  not 
a  ground  of  objection  by  the  people,  and  here  the  witness  did  not  object,  and 
we  caimot  assume  but  that  he  was  not  only  willing,  but  desirous  to  answer." 

HiNT.Ev.— 24 


370  WITNESSES  (Ch.  2 

STATE  V.  CARSON. 
(Supreme  Judicial  Court  of  Maine,  1S76.     66  Me.  116.) 

LiBBEY,  J.*'  The  prisoner  was  on  trial  for  the  murder  of  one 
Brawn.  He  was  a  witness  in  his  own  behalf.  In  his  defense  he  had 
not  put  in  evidence  his  previous  good  character.  On  cross-exam- 
ination the  counsel  for  the  government  was  permitted,  against  ob- 
jection duly  taken,  to  ask  him  the  following  questions :  "Did  you  as- 
sault Mr.  Farrar  on  the  Calais  road,  while  drunk."  Similar  questions 
were  allowed  to  be  put  to  the  witness,  against  objection,  as  to  assaults 
on  several  other  persons,  at  different  times  and  places,  while  drunk. 
These  matters  had  not  been  gone  into,  in  the  examination  in  chief. 
Was  this  line  of  examination  legally  permissible?  It  must  have  been 
admitted  for  one  of  two  purposes:  either  as  affecting  the  credibility 
of  the  witness,  or  as  tending  to  prove  the  crime  alleged.  A  party  to 
a  suit  may  be  a  witness.  If  a  witness,  his  examination  must  be  con- 
ducted under  the  same  rules  that  are  applicable  to  the  examination  of 
any  other  witness.  To  impeach  his  credibility,  it  is  not  competent  to 
prove  by  other  witnesses  that  he  has  committed  other  crimes  than 
the  one  with  which  he  is  charged ;  nor  is  it  competent  to  do  the  same 
thing  by  cross-examination.*''  The  proper  line  of  cross-examination 
does  not  extend  so  far  as  to  authorize,  in  that  way,  the  introduction 
of  incompetent  evidence.  The  witness  must  be  prepared  to  vindicate 
his  general  character  for  truth,  and  to  meet  the  proper  evidence  of  a 
prior  conviction  of  an  infamous  crime.  These  are  m.atters  properly 
in  issue.  But  he  cannot  be  required  to  be  prepared  to  vindicate  him- 
self against  any  alleged  crime  that  may  be  insinuated  in  the  form  of 
cross-examination,  and  of  which  he  has  no  previous  notice.  We  think 
these  principles  well  settled  by  the  authorities.  The  evidence  was  in- 
competent for  the  purpose  of  im.peaching  the  credibility  of  the  wit- 
ness. The  subject  is  carefully  considered  and  determined  in  llol- 
brook  V.  Dow,  12  Gray  (Mass.)  357. 

Xor  was  the  evidence  competent  as  tending  to  prove  the  crime  for 
which  the  prisoner  was  on  trial.  The  fact  that  he  had  made  a  violent 
assault  on  another  person,  at  a  different  time  and  under  different  cir- 
cumstances, could  have  no  legitimate  effect  to  prove  him  guilty  of  the 
fatal  assault  upon  Brawn.  In  Commonwealth  v.  Thrasher,  11  Gray 
(Mass.)  450,  the  court  states  the  rule  as  follows:  *'As  a  general  rule 
in  criminal  trials,  it  is  not  competent  for  the  prosecutor  to  give  evi- 
dence of  facts  tending  to  prove  another  distinct  offense,  for  the  pur- 
pose of  raising  an  inference  of  the  prisoner's  guilt  of  the  particular 
act  charged.  The  exceptions  are  cases  where  such  evidence  of  other 
acts  has   some   connection   with   the   fact   to   be   found  by   the   jury, 

<B  statement  omitted. 

<"  Hut  see  Goddard  v.  I'arr,  post,  p.  396. 


Sec.  4)  EXAMINATION  OF   WITNESSES  371 

where  such  other  fact  is  essential  to  the  chain  of  facts  necessary  to 
make  out  the  case,  or  where  it  tends  to  establish  the  identity  of  the 
party,  or  proximity  of  the  person  at  the  time  of  the  alleged  act,  or 
the  more  familiar  case,  where  guilty  knowledge  is  to  be  shown  or 
some  particular  criminal  intent.  Unless  it  be  made  material  for  some 
such  reasons  as  we  have  stated,  evidence  of  the  substantive  offenses 
of  the  like  kind  ought  not  to  go  to  the  jury."  The  case  at  bar  does 
not  fall  within  any  exception  to  the  general  rule.  We  think  the  court 
erred  in  allowing  the  questions  to  be  put  to  the  witness. 
Exceptions  sustained.*' 


DUNGAN  v.  STATE. 
(Supreme  Court  of  Wisconsin,  190S.     135  Wi.s.  151,  115  N.  W.  .'',50.) 

On  writ  of  error  by  the  defendant  to  review  a  judgment  convicting 
him  of  a  felonious  assault  on  his  step-daughter.*^ 

Dodge,  J.  The  errors  assigned  by  the  plaintiff  in  error  are  predi- 
cated upon  the  failure  of  the  court  over  objection  to  prevent  abuse  by 
the  prosecuting  attorney  of  his  right  of  cross-examination  of  the  de- 
fendant. The  prop^nded  questions  specially  assigned  as  error  fall 
into  three  classes :  ,'  First,  those  tending  to  insinuate  that  the  defend- 
ant himself  at  different  times  had  conducted,  or  lived  in,  disreputable 
places  devoted  to  prostitution  either  in  Milwaukee  or  Chicago ;  sec- 
ond, questions  tending  to  the  insinuation  that  defendant's  wife,  the 
mother  of  the  prosecuting  witness,  was  a  dissolute  woman  and  en- 
gaged in  prostitution,  and  at  different  times  an  inmate  of  houses  de- 
voted to  that  end ;  third,  that  the  place  of  residence  of  the  defend- 
ant and  his  wife  at  the  time  of  the  offense  charged  was  in  a  building 
inhabited  by  prostitutesT" 

The  first  class  of  these  questions  presents  the  often  discussed  and 
often  much  abused  field  of  proving  disgraceful,  immoral,  or  criminal 
conduct  of  one  accused  of  crime  which  is  in  no  way  connected  with 
the  crime  itself.  The  rule  is  without  exception  that  such  evidence  is' 
wholly  inadmissible  upon  the  issue  of  guilt,  because  the  jury  have  no 
right  to  draw  any  inference  from  such  general  bad  character  or  specific 
misconduct  that  the  accused  committed  the  oft'ense  charged,  and  yet, 
while  recognizing  that  they  have  no  such  right,  it  is  well-nigh  im- 
possible to  avert  a  prejudicial  effect  from  such  evidence.  Its  admis- 
sion, or  any  attempt  by  the  prosecutor  by  suggestive  questions  to  con- 
vey such  facts  to  the  jury,  is  a  most  serious  abuse  which,  if  not 
promptly  suppressed  by  the  court,  with  explanation  to  the  jury  such 
as  to  remove  so  far  as  possible  the  ill  effects,  must  usually  work  re- 
versal.    Buel  V.  State,   104  Wis.   132,  80  N.  W.  78;    McAllister  v. 

4  7  Semble,  accord:    People  v.  King,  276  111.  138,  114  N.  E.  601  (1910). 
4  8  Statement  condensed  and  part  of  opinion  omitted.  *- 


372  WITNESSES  (Ch.  2 

State,  112  Wis.  496,  88  N.  W.  212;  Paulson  v.  State,  118  Wis.  90, 
94  N.  W.  771;  Baker  v.  State,  120  Wis.  135,  97  N.  W.  566;  Topo- 
lewski  V.  State,  130  Wis.  244,  249,  109  N.  W.  1037,  7  L.  R.  A.  (N.  S.) 
756,  118  Am.  St.  Rep.  1019,  10  Ann.  Cas.  627.  Such  being  the  un- 
doubted rule  upon  the  issue  of  guilt  or  innocence,  it  is  nevertheless 
subject  to  a  certain  qualification  which  has  arisen  only  since  one  ac- 
cused of  crime  is  permitted  to  testify  in  his  own  behalf.  When  he 
does  so  he  is  not  only  the  defendant,  but  he  is  also  a  witness,  and  in 
the  latter  capacity  is  subject  to  the  same  rules  as  other  witnesses  as  to 
the  asking  of  questions  on  cross-examination  relative  to  facts  which 
may  impair  his  credibihty.  Thus  by  express  provision  of  the  statute 
he  may  be  asked  on  cross-examination  whether  he  has  been  convicted 
of  a  specific  crime. 

Apart  from  statute  the  rule  is  general  that  some  inquiry  may  be 
made  of  every  witness  as  to  the  morality  of  his  past  life  on  the  as- 
sumption that  immorality  in  some  other  respects  may  have  a  bear- 
i  ing  upon  his  character  for  veracity.*^  But  such  questions,  and  the 
information  they  educe,  are  solely  relevant  to  that  question  of  veracity. 
It  is  at  once  obvious  that  this  rule  opens  a  very  wide  field  for  abuse 
by  counsel  of  their  privilege  to  make  such  inquiry.  A  counsel  may, 
if  not  restrained  by  the  court,  devote  the  cross-examination  of  a  wit- 
ness, not  alone  to  proving  disgraceful  and  disreputable  acts  having  but 
the  remotest  bearing  upon  the  question  of  his  veracity,  but  he  may 
also,  by  persistent  questions,  suggesting  facts  which  do  not  exist, 
commit  a  great  outrage  upon  the  feelings  and  reputation  of  the  wit- 
ness, to  the  great  embarrassment  of  courts  from  resulting  reluctance 
of  witnesses  to  place  themselves  in  a  position  where  they  can  be  so 
insulted.  When  any  attorney  evinces  a  tendency  toward  such  un- 
worthy practices,  it  becomes  the  duty  of  the  trial  court  to  at  once 
interpose  and  protect  both  the  witness  from  such  assaults  and  the  for- 
um over  which  he  presides  from  thus  being  debased  into  an  arena  of 
mere  scandal.    Especially  is  such  restraint  his  duty  when  the  witness 

<8  Hunt,  J.,  in  Shepard  v.  Parker,  36  N.  T.  517  (1SG7):  "  •  •  *  It  is  the 
constant  practice  at  the  circuit  to  inquire  M  a  witness  if  he  has  not  heon 
guilty  of  a  specifle  offense,  for  the  purpose  of  impeacliing  him.  It  is  usually 
a  satisfactory  test.  If  a  man  admits  himself  to  have  heen  guilty  of  heinous 
offenses,  the  jury  would  justly  give  him  less  credit  than  if  his  life  had  heen 
pure,  and  his  conduct  upright  If  a  female  witness  admits  herself  to  have 
broken  down  those  barriers  which  the  virtue  and  religion  of  every  civilized 
country  have  reared  for  her  Improvement  and  protection,  her  oath  would  be 
of  little  value  before  a  jury  of  intelligent  men.  ITiis  practice  is  uniform 
and  fullv  sustained  by  the  authorities.  President,  etc.,  of  Third  Great  West- 
em  Turnpike  Road  Co.  v.  Loomls,  32  N.  Y.  127  [S8  Am.  Dec.  311  (1805)1 ;  I^ 
Peau  v.  People,  34  N.  Y.  223  [ISOr.].  The  protection  against  its  abuse  is  two- 
fold: First,  in  the  privilege  of  the  witness  to  refuse  to  answer;  smd,  second, 
In  the  discretion  of  the  judge." 

As  to  the  discretion  of  the  trial  judge,  see  President,  etc.,  of  Third  Great 
Western  Turnpil.e  Itoad  Co.  v.  I.oomis,  32  N.  Y.  127,  88  Am.  Dec.  311  (1805); 
I>e  Beau  v.  People,  34  N.  Y.  223  (1800) ;  State  v.  McCartey,  17  Minn.  76  (GiL 
M  11871]). 


Sec.  4)  EXAMINATION   OF   WITNESSES  373 

is  also  a  defendant  in  a  criminal  prosecution,  for  he  may  not  only 
suffer  in  his  feelings  and  reputation,  but  the  jury  are  extremely  likely 
to  translate  a  suspicion  of  his  general  immoral  character  into  a  con- 
viction of  the  particular  crime  with  which  he  is  charged. 

The  rule  has  tlierefore  become  established  that  the  limits  of  this 
kind  of  cross-examination,  namely,  for  the  purpose  of  fairly  ascer- 
taining the  character  for  veracity  of  witnesses,  may  safely  be  left  to 
the  discretion  of  the  trial  judges,  and  hence  that,  unless  abuse  or 
neglect  to  exercise  such  judicial  discretion  appear,  the  mere  inquiry 
of  a  witness  as  to  some  disreputable  conduct  in  his  career  need  not 
result  in  reversal.  Buel  v.  State,  supra ;  State  v.  Nergaard,  124  Wis. 
414,  423,  102  N.  W.  899;  2  Wigmore  Ev.  §  981  et  seq.  To  ask  a 
witness  whether  he  has  at  some  time  conducted  a  disreputable  place 
of  business  ordinarily  bears  but  slightly  upon  his  character  for  verac- 
ity;  and  we  held  in  Meehan  v.  State,  119  Wis.  621,  623,  97  N.  W.  173, 
that  it  was  by  no  means  an  abuse  of  discretion  for  a  trial  judge  to 
reject  such  question,  and  yet  we  do  not  feel  at  liberty  to  say  that  in  no 
case  might  it  in  the  discretion  of  the  court  be  asked.  As  to  the  in- 
quiries in  this  case  as  to  defendant's  past  life,  we  cannot  concluded 
that  any  error  was  committed. 

The  other  class  of  questions,  namely,  as  to  the  conduct,  behavior, 
and  places  of  habitation  of  the  defendant's  wife,  present  an  abuse  of 
the  right  of  cross-examination  which  is  hardly  conceivable.  What 
possible  relevancy  to  the  guilt  or  innocence  or  to  the  veracity  of  the 
accused  could  the  immorality  or  misconduct  of  his  wife  have?  Is  it 
conceivable,  when  a  witness  goes  upon  the  stand  in  aid  of  the  ascer- 
tainment of  the  truth,  that  he  so  opens  the  door  to  assaults  on  his 
feelings  and  the  reputation  of  others  as  that  the  opposing  attorney 
may,  by  asking  him  the  question  whether  his  wife  was  ever  an  inmate 
of  a  house  of  ill  fame,  spread  abroad  an  insinuation  of  that  fact? 
While  an  appellate  court,  in  its  anxiety  to  sustain  a  judgment  when 
it  can  believe  that  errors  committed  upon  the  trial  could  not  have  af- 
fected the  result,  might  pass  over  even  such  an  assault  as  this  upon 
a  witness,  we  cannot  think  that  in  the  present  case  such  course  is 
open  to  us,  for  the  court  in  ruling  upon  certain  of  those  questions  in 
effect  declared,  in  the  presence  of  the  jury,  that  he  permitted  inquiry 
into  the  conduct  and  surroundings  of  the  defendant's  wife  and  of 
defendant  himself  "in  so  far  as  it  touches  upon  the  real  consideration 
of  the  defendant  of  those  things  which  are  naturally  expected  and 
that  we  naturally  expect  to  find  existing  between  the  father  and  daugh- 
ter or  the  father  and  stepdaughter.  That  is  all  the  bearing  it  has  in 
this  case."  This  obviously  meant  that  the  fact  of  immoral  surround- 
ings and  conduct  suggested,  as  a  legitimate  inference,  probability  of 
the  specific  offense  between  the  defendant  and  the  prosecuting  wit- 
ness ;  that  such  evidence  need  not  be  confined  to  considerations  of  mere 
credibility  or  veracity,  but  might  bear  upon  the  likelihood  of  the  com- 
mission of  the  crime  itself. 


374  WITNESSES  (Ch.  2 

This  brought  the  cross-examination  within  all  the  words  of  dis- 
approval which  were  pronounced  in  the  Paulson  Case  w^ith  reference 
to  an  attempt  to  defame  a  defendant's  character  before  he  had  be- 
come a  witness.  If  the  jury  heeded  this  remark,  the  fact  that  the 
defendant,  or  even  his  wife,  was  an  immoral  person,  living  among 
disreputable  surroundings,  may  have  been  by  them  considered  suffi- 
cient to  overcome  that  presumption  of  his  innocence  of  the  specific 
act  of  assault  upon  this  child,  and  to  have  hurried  them  to  a  conclu- 
sion of  guilt,  which  they  might  not  have  been  able  to  reach  from  the 
unaided  testimony  of  the  prosecutrix,  fully  contradicted  by  the  defend- 
ant himself,  and  also  persuasively  contradicted  by  the  testimony  of 
other  witnesses.  This  was  error  which  we  cannot  convince  ourselves 
can  be  passed  over  as  not  prejudicial. 

Judgment  and  sentence  reversed,  and  cause  remanded  for  new 
trial.=°    *    *    * 


IV.  Contradiction  and  Impeachme;nt 

ADAMS  v.  ARNOLD. 
(Court  of  King's  Bencb,  1701.    12  Mod.  375.) 

Trespass  for  an  assault  upon  the  plaintiff's  wife,  and  getting  her 
with  child;  and  what  the  wife  declared  in  her  labour  rejected  to  be 
evidence. 

And  here  Holt,  Chief  Justice,  would  not  suffer  the  plaintiff  to 
discredit  a  witness  of  his  own  calling,  he  swearing  against  him. 


REX  v.  OLDROYD. 
(Court  for  Crown  Cases  Reserved,  1805.     Russ.  &  R.  SS.) 

The  prisoner  was  tried  before  Mr.  Baron  Graham,  at  the  Lent  as- 
sizes for  the  county  of  York,  in  the  year  1805,  for  the  murder  of  his 
father  at  Sandal  Magna,  on  the  12lh  of  July,  1804,  by  strangling  him. 
He  was  convicted  upon  circumstantial  evidence,  but  the  learned  judge 
respited  his  execution  upon  an  objection  pressed  upon  him  by  the 
counsel  for  the  prisoner,  as  to  the  admissibility  in  evidence  of  a  depo- 
sition read  upon  the  trial  under  the  following  circumstances. 

,The  counsel  for  the  prosecution  at  the  close  of  their  case  observed 

60  In  a  number  of  the  states  the  cross-examination  of  a  witness  as  to  uils- 
oondiH.'t  for  tlie  purpose  of  dlseredlling,  npijcurs  to  be  e.xchided  on  llie  i,'rouud 
of  raising  collateral  Issues,  thus  failing  to  distinguish  between  cro.ss-e.Kami- 
natioii  and  the  i»rof)f  of  offenses  by  other  witnesses.  For  a  colleetlon  of  the 
cases,  see  note  to  li  Wigmore,  §  9S7. 


Sec.  4)  EXAMINATION   OF   WITNESSES  375 

to  the  learned  judge,  that  they  did  not  mean  to  call  the  mother  of  the 
prisoner,  Elizabeth  Oklroyd,  strongs  suspicions  having  fallen  upon  her 
as  having  been  an  accomplice;  but  the  judge  thought  it  right,  in 
compliance  with  the  usual  practice  (her  name  being  on  the  back  of 
the  indictment,  as  having  been  examined  before  the  grand  jury),  to 
have  her  examined,  which  was  accordingly  done.  The  learned  judge 
observing  upon  this  examination,  that  the  evidence  given  by  the 
woman  was  in  favor  of  the  prisoner,  and  materially  different  from 
her  deposition  taken  before  the  coroner,  thought  it  proper  to  have 
the  deposition  read,  for  the  purpose  of  afifecting  the  credit  of  her 
testimony  so  given  on  the  trial:  and  in  summing  up  the  case  to  the 
jury  he  stated,  that  her  testimony  was  not  to  be  relied  upon,  and  left 
the  matter  of  the  prisoner's  guilt  entirely  upon  the  other  evidence. 

The  question  reserved  for  the  opinion  of  the  judges  was  whether 
it  was  competent  to  the  judge,  under  the  circumstances  stated,  to 
order  this  deposition  to  be  read,  in  order  to  impeach  the  credit  of  the 
witness. 

The  case  was  taken  into  consideration  at  a  meeting  of  all  the  judges 
in  Easter  term,  11th  of  May,  and  again  on  the  18th  of  May,  1805,  when 
they  were  all  of  opinion,  that  it  was  competent  under  the  circum- 
stances for  the  judge  to  order  the  deposition  to  be  read,  to  impeach  the 
credit  of  the  witness.  It  was  then  considered  whether,  laying  the 
evidence  of  the  prisoner's  mother  entirely  out  of  the  case,  there  was 
sufficient  evidence  to  go  to  the  jury.  Graham,  B.,  read  to  the  judges 
from  his  notes  the  evidence  given  on  the  trial;  and,  upon  considera- 
tion the  judges  were  of  opinion,  that  there  was  evidence  sufficient  to 
go  to  the  jury;  and  that  the  jury  having  found  the  prisoner  guilty, 
there  were  not  circumstances  sufficient  to  raise  a  doubt  so  as  to  in- 
duce any  interposition  to  prevent  the  law  taking  its  course. 

The  case  of  Margaret  Tinckler  (East,  P.  C.  354— This  case  was 
before  the  judges  on  the  6th  November,  1781)  was  mentioned;  where 
the  judges  determined,  that  although  evidence  had  been  received  which 
was  not  strictly  admissible,  yet  the  case  appearing  clear  against  the 
prisoner  without  that  evidence,  it  was  not  a  reason  to  stay  the  execu- 
tion. And  the  judges,  upon  the  present  occasion,  seemed  all  to  agree 
to  that  doctrine,  where  the  case  was  otherwise  clear;  but  seemed 
to  think,  that  this  case  could  hardly  have  fallen  within  the  rule  if  the 
evidence  of  the  mother's  deposition,  to  impeach  her  credit,  had  been 
held  inadmissible. 

Upon  the  question,  whether  a  party  producing  a  witness  could  be 
permitted  to  call  evidence  to  impeach  the  credit  of  such  witness, 
were  cited  Rex  v.  Colledge,  Adams  v.  Arnold  (12  ^^lod.  375),  12  Vin. 
Abr.  48,  tit.  Evidence,  M,  a,  pi.  6. 

In  this  case,  the  determination  of  the  judges  was  confined  to  the 
right  of  a  judge  to  call  for  a  witness's  deposition,  in  order  to  impeach 


Ol 


G  WITNESSES  (Ch.  2 


the  credit  of  a  witness  who  on  the  trial  should  contradict  what  she 
has  before  deposed;  but  Lord  Ellenborough  and  Mansfield,  C.  J., 
thought  the  prosecutor  "^  had  the  same  right. 


BRADLEY  v.  RICARDO. 

(Court  of  Common  Pleas,  1S31.     8  Bing.  57.) 

This  was  an  action  against  the  sheriff  of  Gloucestershire  for  a  false 
return  of  nulla  bona  to  a  writ  of  fi.  fa. 

At  the  trial  the  plaintiff  called  the  sheriff's  officer  to  prove  the  re- 
ceipt of  the  warrant  to  levy. 

Upon  cross-examination,  the  witness  affirmed  that  no  goods  could 
be  found  belonging  to  the  party  against  whom  the  levy  was  directed. 

The  plaintiff's  counsel  was  then  proceeding  to  prove  his  case  by  other 
witnesses,  and  to  contradict  the  sheriff's  officer  as  to  his  statement 
that  no  goods  could  be  found,  when  the  learned  Judge  who  presided 
thought  that,  if  the  plaintiff  were  permitted  to  contradict  a  witness 
placed  in  the  box  by  himself,  as  to  a  particular  fact,  the  whole  evi- 
dence of  the  witness  must  be  struck  out ;  upon  which  the  plaintiff  was 
nonsuited. 

Wilde,  Serjt.,  obtained  a  rule  nisi  to  set  aside  the  nonsuit,  contending 
that  though  a  party  is  not  allowed  to  throw  general  discredit  on  the 
character  of  a  witness  called  by  himself,  he  may  set  him  right  as  to 
any  particular  fact  which  he  may  have  stated  incorrectly,  and  the  rest 
of  his  evidence  may  stand. 

TiNDAL,  C.  J."^^  This  rule  must  be  made  absolute.  The  object  of 
all  the  laws  of  evidence  is  to  bring  the  whole  truth  of  a  case  before  a 
jury;  but  if  this  rule  were  to  be  discharged,  that  would  no  longer  be 
the  just  ground  on  which  the  principles  of  evidence  would  proceed, 
but  we  should  compel  the  plaintiff  to  take  singly  all  the  chances  of  the 
tables,  and  to  be  bound  by  the  statements  of  a  witness  whom  he  might 
call  without  knowing  he  was  adverse,  who  might  labour  under  a  de- 
fect of  memory,  or  be  otherwise  unable  to  make  a  statement  on  which 
complete  reliance  could  be  placed.    Suppose  a  case  in  which,  for  some 

61  In  State  v.  Slack,  C9  Vt  486,  38  Atl.  311  (1S07),  It  was  held  that  the 
state's  attorney  might  prove  a  conviction  to  discredit  a  witness  called  by 
hlin. 

In  Com.  V.  Hudson,  11  Gray  (Mass.)  04  (1858),  It  was  ruled  by  Shaw,  C. 
J.,  tiiat  tlie  prosecution  should  not  be  permitted  to  prove  contradictory  state- 
ments by  its  own  witness. 

It  has  i)een  lield  that,  wliere  the  rule  requires  a  party  to  call  an  attesting 
witness,  he  Is  entitled,  in  case  of  adverse  testimony,  to  prove  the  liad  r(>puta- 
tlon  of  the  witness  for  truth,  Williams  v.  Walker,  2  Rich.  Eq.  (S.  C.)  201,  46 
Am.  Dec.  53  (1840);  or  to  prove  contradictory  statements,  Thompson  v.  Owens, 
174  111.  229,  51  N.  E.  1040,  45  L.  R.  A.  082  (1898);  Harden  v.  Hays,  9  Pa.  151 
(1848). 

»a  Opinions  of  Gaseice,  Bosanquet,  and  Alderson,  JJ.,  omitted. 


Sec.  4)  EXAMINATION  OF   WITNESSES  377 

formal  proof,  the  plaintiff  is  obliged  to  make  a  witness  of  the  defend- 
ant's attorney,  who  on  cross-examination  makes  a  statement  adverse  to 
the  plaintiff;  is  the  plaintiff  to  be  precluded  from  calling  the  wit- 
nesses whom  he  had  prepared  before  to  show  the  real  state  of  the  case? 
It  has  been  urged  as  an  objection,  that  this  would  be  giving  credit  to 
the  witness  on  one  point  after  he  has  been  discredited  on  another ; 
but  difficulties  of  the  same  kind  occur  in  every  cause  where  a  jury 
has  to  decide  on  conflicting  testimony.  The  general  rule  is,  that  a 
party  shall  not  be  permitted  to  blast  the  character  of  a  witness  called  in 
support  of  his  case  by  adducing  general  evidence  to  his  discredit ;  but 
I  have  never  heard  it  said  that  when  surprised  by  a  statement  con- 
trary to  fact,  he  may  not  call  another  witness  to  show  how  the  fact 
really  is.  It  is  a  common  occurrence  that  persons  called  on  to  give 
their  testimony  decline  to  make  any  statement  before  they  appear  in 
Court.  It  would  be  a  great  hardship  if  the  party  compelled  to  call  such 
persons  should  be  bound  by  everything  they  may  choose  to  say.  The 
alteration  in  the  general  rule  which  the  defendant  in  this  case  seeks  to 
establish,  would  lead  to  great  inconvenience  and  injustice.  The  rule, 
therefore,  which  has  been  obtained  for  setting  aside  the  nonsuit  must 
be  made  absolute. 
Rule  absolute. 


WRIGHT  V.  BECKETT. 

(Court  of  Common  Pleas,  1834.     1  Moody  &  R.  414.) 

Lord  Dsnman,  C.  J.°^  The  question  which  has  been  argued  before 
us,  arose  in  this  manner:  Four  witnesses,  examined  on  the  plaintiff's 
part,  gave  evidence  which,  if  believed,  established  his  case;  he  then 
called  a  fifth,  whose  testimony,  if  believed,  defeated  the  plaintiff's  case, 
and  fully  proved  that  of  the  defendant.  It  was  then  proposed  by  the 
plaintiff"  to  shew  that  this  same  witness  had  formerly  given  a  completely 
different  account  at  another  time.  The  mode  of  doing  this,  was  by 
producing  the  statement  taken  down  shortly  before  the  trial,  from  his 
own  lips,  by  the  plaintiff's  attorney.  The  object  of  the  evidence  ten- 
dered, was  to  shew  the  untruth  of  what  he  swore  upon  the  trial :  we 
are  now  to  consider  whether  I  did  right  in  permitting  this  contradiction 
to  be  proved. 

Notwithstanding  my  respect  for  the  different  opinion  which  is  en- 
tertained by  my  learned  brother  now  present,  and,  as  I  believe  by 
others  of  great  weight  and  authority,  I  retain  that  on  which  I  acted  at 
Lancaster. 

The  case  was  brought  by  what  occurred  to  this  simple  point, — to 
which  of  the  witnesses  credit  was  due.    If  to  the  first  four,  the  plain- 
s'? Statement  and  part  of  opinions  of  Lord  Denman,  C.  J.,  and  Holland,  B., 
omitted. 


378  '  WITNESSES  (Ch.  2 

tiff  was  entitled  to  the  verdict;  if  to  the  last,  the  defendant.  On  this 
issue  alone  the  event  of  the  cause  depended.  The  defendant  enjoyed 
the  pri\dlege  of  assailing  tlie  credit  of  those  who  were  opposed  to  his 
interest :  the  plaintiff  must  have  the  same  right  with  respect  to  that 
witness  who  unexpectedly  turned  against  him,  unless  he  is  debarred 
by  some  strict  rule  of  law. 

I  find  no  such  rule,  but  many  decisions  which  must  have  proceeded 
on  the  opposite  principle.  There  is  a  passage,  indeed,  upon  this  sub- 
ject in  Buller's  Nisi  Prius,  to  which,  as  I  understand  it,  I  most  fully 
subscribe  (page  297) :  "A  party  never  shall  be  permitted  to  produce 
general  evidence  to  discredit  his  own  witness,  for  that  would  be  to 
enable  him  to  destroy  tlie  witness  if  he  spoke  against  him,  and  to  make 
him  a  good  witness  if  he  spoke  for  him  with  the  means  in  his  hands 
of  destroying  his  credit  if  he  spoke  against  him.  But  if  a  witness 
prove  facts  in  a  cause  which  make  against  the  party  who  called 
him,  yet  the  party  may  call  other  witnesses  to  prove  that  those  facts 
were  otherwise;  for  such  facts  are  evidence  in  the  cause,  and  the 
other  witnesses  are  not  called  directly  to  discredit  the  first  witness,  but 
the  impeachment  of  his  credit  is  incidental  and  consequential  only." 

But  I  consider  the  meaning  to  be,  that  no  party  shall  produce  a  wit- 
ness whom  he  knows  to  be  infamous,  and  whom  he  has,  therefore,  tlie 
means  of  discrediting  by  general  evidence.  No  inference  arises,  that 
I  may  not  prove  my  witness  to  state  an  untruth,  when  he  surprises  me 
by  doing  so,  in  direct  opposition  to  what  he  had  told  me  before.  In 
this  case,  the  discredit  is  consequential,  and  the  evidence  is  not  gen- 
eral but  extremely  particular,  and  subject  to  any  explanation  which  the 
witness  may  be  able  to  aft'ord.  The  rule  laid  down  in  Buller's  Nisi 
Prius,  therefore,  appears  to  me  inapplicable. 

Two  dangerous  consequences  are,  however,  apprehended  from  ad- 
mitting the  former  statement  of  a  witness,  in  contradiction  to  his  tes- 
timony on  the  trial. 

Now,  I  must  observe  in  passing,  that  the  Judge's  apprehension 
of  possible  danger  on  admitting  certain  evidence,  cannot  create  a  rule 
for  excluding  it.  The  Legislature  may  make  such  a  provision,  or  the 
rule  may  have  so  far  prevailed  in  practice  as  to  be  properly  considered 
parcel  of  the  common  law.  But  if,  instead  of  acting  on  established 
rules,  we  were  now  conferring  on  what  rules  it  would  be  best  to  estab- 
lish, the  inconvenience  of  precluding  the  proof  tendered  strikes  my  mind 
as  infinitely  greater  than  that  of  admitting  it.  For  it  is  impossible  to 
conceive  a  more  frightful  iniquity,  than  the  triumph  of  falsehood  and 
treachery  in  a  witness,  who  pledges  himself  to  depose  to  the  truth  when 
brought  into  Court,  and,  in  the  meantime,  is  persuaded  to  swear,  when 
he  appears,  to  a  completely  inconsistent  story. 

The  dangers  on  the  other  hand,  though  doubtless  very  fit  subjects  of 
precaution  in  the  progress  of  a  trial,  exist  at  present,  in  an  equal  degree, 
with  reference  to  modes  of  proceeding  which  have  never  yet  been  ques- 
tioned. 


Sec.  4)  ■  EXAMINATION   OF  WITNESSES  379 

The  most  obvious  and  striking  danger  is  that  of  collusion.  An  at- 
torney may  induce  a  man  to  make  a  false  statement  without  oath,  for 
the  mere  purpose  of  contradicting  by  that  statement  the  truth,  which, 
when  sworn  as  a  witness,  he  must  reveal.  The  two  parties  concerned 
in  this  imagined  collusion  must  be  utterly  lost  to  every  sense  of  shame 
as  well  as  honesty.  But  there  is  another  mode  by  which  their  wicked 
conspiracy  could  be  just  as  easily  effected.  The  statement  might  be 
made,  and  then  tlie  witness  might  tender  himself  to  the  opposite  '^^ 
party,  for  whom  he  might  be  first  set  up,  and  afterwards  prostrated 
by  his  former  statement.  This  far  more  effectual  stratagem  could  be 
prevented  by  no  rule  of  law. 

The  other  danger  is,  that  the  statement,  which  is  admissible  only  to 
contradict  the  witness,  may  be  taken  as  substantive  proof  in  the  cause. 
But  this  danger  equally  arises  from  the  contradiction  of  an  adverse 
witness;  it  is  met  by  the  Judge  pointing  out  the  distinction  to  the 
jury,  and  warning  them,  not  to  be  misled.  It  is  not  so  abstruse  but 
that  Judges  may  explain  it,  and  juries  perceive  its  reasonableness ;  and 
it  is  probable  that  they  most  commonly  discard  entirely  the  evidence  of 
him  who  has  stated  falsehoods,  whether  sworn  or  unsworn. 

I  now  proceed  to  observe  upon  the  cases  cited.^^     *     *     * 

The  result  is,  that,  finding  no  direct  authority  compelling  the  ex- 
clusion of  such  evidence,  and  some  which  appear  to  me  on  principle 
to  prove  it  admissible,  and  thinking  tliat  truth  and  justice  may  be  most 
materially  affected  by  that  exclusion,  I  am  bound  to  abide  by  the 
course  I  pursued  at  nisi  prius,  and  must  give  my  judgm.ent  against 
making  the  rule  absolute. 

BoLLAND,  B.  *  *  *  I  have  most  attentively  considered  all  the 
cases  cited  in  the  arguments  before  us,  and  I  am  of  opinion  that  the 
evidence  of  Mr.  Mallady  ought  not  to  have  been  received,  and  that 
the  rule  for  a  new  trial  should  be  made  absolute. 

The  rule  applicable  to  this  question  is,  as  it  seems  to  me,  that 
which  has  been  relied  upon  by  my  brother  Jones;  viz.,  that  a  party 
in  a  cause  is  not  to  be  permitted  to  give  evidence  of  a  fact,  for  the 
purpose  of  discrediting  his  own  witness,  unless  such  fact  would  of 
itself  be  evidence  in  the  cause;  but  that  where  such  fact  is  relevant  to 
the  issue,  and  so  per  se  evidence  in  the  cause,  such  proof  is  to  be  allow- 
ed to  be  given,  although  it  may  collaterally  have  the  effect  of  discredit- 
ing the  testimony  of  his  own  witness. 

The  passage  cited  from  Mr.  Justice  Buller's  treatise  on  the  law  rela- 

84  In  Clancey  v.  St.  Louis  Transit  Co.,  192  Mo.  615.  91  S.  W.  509  (1905),  It 
was  held  that,  in  case  of  collusion  between  the  opposite  party  and  the  wit- 
ness, the  party  calling  the  witness  might  contradict  him  by  his  former  depo- 
sition. 

55  In  the  omitted  passages  the  Chief  Justice  reviewed  Alexander  v.  Gibson, 
2  Campb.  556  (1811) ;  Ix)we  v.  Joliffe,  1  Wm.  Blackstone,  305  (1762) ;  Goodtitle 
V.  Clavton,  4  Burr,  2224  (17CS) ;  Rex  v.  Oldroyd,  Russ.  &  Ry.  SS  (1S0.3) ;  Ewor 
V.  Amiirose,  3  B.  &  C.  746  (1825);  Friedlander  v.  London  Assurance  Co.,  4  B. 
&  Adol.  193  (1832). 


380  WITNESSES  (Ch.  2 

tive  to  trials  at  nisi  prius,  p.  297,  taken  altogether,  warrants  this  dis- 
tinction;  for  after  having  laid  it  down  that  a  party  shall  not  be  per- 
mitted to  give  general  evidence  to  discredit  his  own  witness,  tlie  learn- 
ed author  goes  on  to  state, — "But  if  a  witness  prove  facts  in  a  cause 
which  make  against  the  party  who  called  him,  yet  the  party  may  call 
other  witnesses  to  prove  that  those  facts  were  otherv/ise,  for  such  facts 
are  evidence  in  the  cause,  and  the  other  witnesses  are  not  called  di- 
rectly to  discredit  the  first  witness,  but  the  impeachment  of  his  credit  is 
incidental  and  consequential  only."  By  these  words  the  learned  writ- 
er points  out  in  what  manner  and  to  what  extent  a  party  shall  be  al- 
lowed to  impeach  the  credit  of  his  own  witness,  in  contradistinction  to 
that  "general  evidence,"  of  which  he  had  made  mention  just  before. 
The  cases  of  Ewer  and  Another,  Assignees  v.  Ambrose  and  Another, 
3  B.  &  C.  746,  and  Friedlander  v.  The  London  Assurance  Company,  4 
B.  &  Adol.  193,  were  decided  upon  the  principles  laid  down  in  the 
above  rule ;  and  it  is  worthy  of  observation,  that  the  general  leaning 
of  the  late  Lord  Tenterden's  mind  was  so  strong  against  allowing  a 
party  to  discredit  one  of  his  own  witnesses,  that  when  the  latter  case 
was  before  him  at  nisi  prius,  he  appears  to  have  considered,  though 
mistakenly,  as  the  Court  afterwards  thought,  that  all  such  evidence  was 
inadmissible. 

I  think  that  great  weight  is  due  to  the  argument  founded  on  the 
danger  of  collusion ;  it  is,  indeed,  in  my  mind,  the  main  objection  to  the 
reception  of  the  evidence.     *     *     * 

With  the  exception  of  the  opinion  of  the  two  learned  Judges  in 
Rex  V.  Oldroyd,  the  authorities  are  uniform  in  establishing,  that  a 
party  cannot  contradict  his  own  witness  but  by  giving  evidence  of 
facts  bearing  upon  the  issue.  It  was  open  to  the  plaintiff  to  do  so  in 
the  present  case,  but  he  was  not  at  liberty  to  prove  that  his  witness, 
Warrener,  had  previously  made  a  different  statement  to  the  attorney, 
because  that  was  a  matter  not  relevant  to  the  issue  in  the  cause ;  nor 
was  the  statement  entitled  to  such  weight  as  a  contradiction,  as  to  have 
the  power  of  neutralizing  the  evidence  (one  of  the  reasons  urged  for  its 
admission),  it  not  having  been  given  upon  oath.  It  furnished  a  suffi- 
cient apology  for  putting  Warrener  in  the  brief,  and  calling  him,  but 
could  go  no  farther.  In  the  case  of  Ewer  v.  Ambrose,  the  eyidence  by 
which  it  was  sought  to  contradict  the  witness  was,  his  answer  in  Chan- 
cery. In  Rex  V.  Oldroyd,  the  contradiction  was  supported  by  the  wit- 
ness's deposition  before  the  coroner. 

For  these  reasons  I  am  of  opinion,  tlie  evidence  of  the  witness,  Mal- 
lady;  was  improperly  received  at  the  trial ;  but,  as  tlie  Court  is  divided, 
there  cannot,  of  course,  be  any  rule.°° 

60  Erie,  J.,  In  Melhuish  v.  Collier,  l.^  Adolphus  &  Kills  (N.  S.)  878,  (Court 
of  Queen-s  Bench,  1850):  "The  first  point  is  an  important  one.  A  plaintiff's 
witness  says,  in  ofl'ect,  that  the  plaintiff  has  no  cause  of  action.  Then  ho  ia 
asked  whether  he  has  not,  formerly,  made  a  difieront  statement.  I  think 
that  question  Is  proper,  and  not  Inconsistent  with  the  rule  that  a  party  know- 


Sec.  i)  EXAMINATION  OF   WITNESSES  381 

ATWOOD  V.  WELTON. 
(Supreme  Court  of  Errors  of  Connecticut,  1828.    7  Conn.  66.) 

This  was  an  action  qui  tam,  for  taking  usury,  brought  on  the  stat- 
ute, to  recover  the  value  of  the  money  alleged  to  have  been  loaned  by 
the  defendant,  to  one  Hezekiah  Scott,  on  a  corrupt  and  usurious  agree- 
ment. 

On  the  trial,  Hezekiah  Scott,  named  in  the  declaration  as  the  bor- 
rower of  the  money,  was  offered  as  a  witness  by  the  plaintiff,  to  prove 
the  alleged  usury.  Upon  his  cross-examination,  he  was  asked,  by  the 
defendant's  counsel,  whether  he  had  not  been  in  a  controversy  v.'ith 
the  defendant,  and  whether  he  had  not  threatened  that  he  would  be 
revenged  on  him  for  collecting  of  him  the  note  mentioned  in  the  plain- 
tiff's declaration,  to  each  of  which  inquiries  Scott,  the  witness,  an- 
swered in  the  negative.  And  thereupon  the  defendant  offered  Rich- 
ard Bryan  and  others,  as  witnesses,  to  prove  that  Scott  had  been  in 
controversy  with  the  defendant,  and  had  threatened  that  he  would 
be  revenged  on  him  for  collecting  said  note.  These  witnesses  were 
objected  to,  by  the  plaintiff;  and  the  judge  rejected  them.  The  plain- 
tiff obtained  a  verdict ;  and  the  defendant  moved  for  a  new  trial,  on 
the  ground  that  these  decisions  of  the  judge  were  erroneous." 

Daggett,  J.  It  is  very  clear,  that  a  witness,  on  his  cross-examina- 
tion, may  be  questioned  as  to  his  being  in  a  controversy  with  the 
party  against  whom  he  testifies,  and  whether  he  has  not  threatened 
to  be  revenged  on  him.  If  he  should  answer  affirmatively,  it  would 
show  a  bias  on  his  mind,  which  ought  to  be  weighed  by  the  jury,  in 
considering  his  testimony.  To  such  a  witness  as  full  belief  will  not 
be  readily  yielded  as  to  one  who  feels  no  such  hostihty.     If  the  wit- 

ing  a  witness  to  be  infamous  ouglit  not  to  produce  him,  and  must  not  be  al- 
lowed to  take  the  cbance  of  bis  answers  and  then  bring  evidence  to  contra- 
dict him.  We  do  not  interfere  with  that  rule.  There  are  treacherous  wit- 
nesses who  will  hold  out  that  they  can  prove  facts  on  one  side  in  a  cause, 
and  then  for  a  bribe  or  from  some  other  motive,  make  statements  In  sup- 
port of  the  opposite  interest.  In  such  cases,  the  law  undoubtedly  ought  to 
permit  the  party  calling  the  witness  to  question  him  as  t^  the  former  state- 
ment, and  ascertain,  if  possible,  what  induces  him  to  change  it.  It  is  not 
now  necessary  to  ask  whether  a  person  to  whom  the  former  statement  was 
made  may  be  called  to  contradict  the  witness ;  for  it  was  not  done  here.  The 
point  is  one  upon  which  judges  have  differed,  and  opinions  may  vary  to  the 
end  of  time.  As  to  the  remaining  question:  Where  a  witness  alleges  a  fact 
contrary  to  the  interest  of  the  party  calling  him,  it  is  clear  that  the  party 
may  bring  others  to  prove  opposite,  facts,  relevant  to  the  case." 

For  further  comments  on  this  subject,  see  opinion  of  Justice  White  In  Put- 
nam V.  U.  S.,  162  U.  S.  687,  16  Sup.  Ct.  923,  40  L.  Ed.  lllS  (1896). 

"^lic-ro  the  English  rule  as  to  the  extent  of  cross-examination  prevails,  a  ' 
party  does  not  make  a  witness  his  own  by  cross-examination  as  to  any  rele- 
vant matter,  so  as  to  preclude  proof  of  contradictory  statements.  Johnson  v. 
Armstrong,  97  Ala.  731,  12  South.  72  (1893).  The  rule  appears  to  be  other- 
wise where  cross-examination  is  restricted.  Lambert  v.  Armentrout,  65  W. 
Va.  375,  64  S.  E.  260,  22  L.  R.  A.  (N.  S.)  556  (1909). 

67  Statement  condensed  and  part  of  opinion  omitted. 


382  WITNESSES  (Ch.  2 

ness  should  answer  in  the  negative,  it  is  equally  clear,  he  may  be  con- 
tradicted by  other  proof.  A  witness  may  always  be  asked  any  ques- 
tion relative  to  the  issue,  for  the  purpose  of  contradicting  him,  if  his 
answer  be  one  way,  by  other  witnesses,  in  order  to  discredit  his  whole 
testimony.  "Falsus  in  uno,  falsus  in  omnibus,"  has  become  a  familiar 
maxim.  Such  has  been  the  invariable  rule  in  our  country ;  and  such 
is  the  rule  of  the  common  law.  In  upwards  of  forty  years  practice, 
I  have  not  known  it  to  be  doubted.  It  is  true,  a  witness  may  not  be 
interrogated  as  to  any  collateral  independent  fact.  This  would  be  to 
try  as  many  issues  as  a  party  might  choose  to  introduce,  and  which 
the  other  party  might  not  be  prepared  to  meet.  Spencely  qui  tarn, 
v.  De  Willott,  7  East,  108.  The  question  whether  the  defendant  had 
a  controversy  with  the  witness,  and  had  threatened  to  be  revenged, 
surely  was  relevant  to  the  issue ;  for  it  tended  to  prove  such  a  state 
of  mind  towards  the  defendant,  as  might  well  be  submitted  to  the 
jury  to  discredit  his  testimony  as  to  material  facts.  There  is  hardly 
a  point  about  which  there  can  be  less  doubt.  Swift's  Ev.  148;  Turner 
V.  Austin,  16  Mass.  185 ;  Tucker  v.  Welsh,  17  Mass.  160,  9  Am.  Dec. 
137;  2  Camp.  Rep.  630;  1  Stark.  Ev.  135.  "In  such  a  case,  (says  the 
learned  commentator,)  the  inquiry  is  not  collateral,  but  most  important 
to  show  the  motives  and  temper  of  the  witness  in  the  particular  trans- 
action." *  *  * 
New  trial  granted.'' 


ATTORNEY  GENERAL  v.  HITCHCOCK. 

(Court  of  Exchequer,  1847.     1  Exch.  91.) 

This  was  an  information  at  the  suit  of  the  Attorney-General,  which 
charged  the  defendant,  a  malster,  with  having  used  a  certain  cistern 
for  making  malt,  without  having  previously  entered  it,  as  required  by 
the  statute  4  &  5  Will.  4,  c.  51,  s.  6. 

At  the  trial,  before  Pollock,  C.  B.,  at  the  sittings  after  last  Easter 
term,  a  witness  of  the  name  of  Spooner,  who  deposed  to  the  fact  of 
the  cistern  having  been  used  by  the  defendant,  was  asked,  on  cross- 
examination  by  the  defendant's  counsel,  whether  he  had  not  said  that 
the  officers  of  the  Crown  had  offered  him  £20  to  say  that  the  cistern 
had  been  used.  Spooner  denied  having  said  so,  and  thereupon  the 
defendant's  counsel  proposed  to  ask  another  witness  of  the  name  of 
Cook,  whether  Spooner  had  not  said  so.  The  Attorney-General  object- 
ed to  this  question,  and  the  Lord  Chief  Baron,  being  of  opinion  that  the 
question  was  irrelevant  to  the  issue,  and  that  it  also  tended  to  raise  a 
collateral  issue,  held  the  objection  good,  and  ruled  that  it  could  not  be 
put. 

08  Aud  so  In  State  v.  Darling,  202  Mo.  150,  100  S.  W.  631  (190G). 


Sec.  4)  EXAMINATION   OP  WITNESSES  383 

Bovill  obtained  a  rule  for  a  new  trial,  on  the  ground  that  this  evi- 
dence was  improperly  rejected,  and  cited  Meagoe  v.  Simmons,  3  C.  & 
P.  75,  and  Ye  win's  case,  2  Campb.  638,  (n). 

Pollock,  C.  B."**  I  am  of  opinion  that  this  rule  should  be  dis- 
charged ;  and  I  may  also  add,  that  my  brother  Parke  expressed  him- 
self to  be  of  that  opinion  before  he  left  the  Court.  The  question  is, 
whether  the  witness  Spooner,  who  had  been  asked  if  he  had  not  said 
that  the  officer  had  offered  him  a  bribe  for  the  purpose  of  saying  that 
the  cistern  had  been  used,  and  who  stated  that  he  had  not  said  so, 
could  be  contradicted  by  asking  the  other  witness,  Cook,  if  Spooner 
had  not  made  that  statement  to  him?  The  circumstance  of  Spooner 
being  the  only  witness  to  prove  that  fact  cannot  affect  the  point,  which 
must  stand  or  fall  by  this  general  question,  and  by  the  answer  to  it, 
namely,  on  what  occasions  can  evidence  be  admitted  to  contradict  a 
witness,  as  to  what  he  denies  having  said  on  cross-examination.  I 
think,  whether  the  answer  be  given  in  the  terms  used  by  me  at  the 
trial,  or  whether  it  be  in  effect  as  my  Brother  Alderson  has  put  it  in 
the  course  of  the  argument  this  morning,  the  result  is  the  same.  I 
have  always  understood, — and  it  is  a  matter  on  which  I  am  not  now  ex- 
pressing an  opinion  the  result  merely  of  the  argument  and  considera- 
tion of  to-day,  and  of  the  other  day  when  the  matter  was  before  the 
Court,  but  the  result  of  much  consideration  given  to  such  questions  dur- 
ing great  experience  in  these  matters,  and  with  questions  respecting  the 
law  of  evidence, — my  view,  I  say,  has  always  been,  that  the  test,  wheth- 
er the  matter  is  collateral  or  not,  is  this :  if  the  answer  of  a  witness  is  a 
matter  which  you  v^^ould  be  allowed  on  your  part  to  prove  in  evidence 
— if  it  have  such  a.  connection  with  the  issue  that  you  would  be  allow- 
ed to  give  it  in  evidence — then  it  is  a  matter  of  which  you  may  con- 
tradict him.  Or  it  may  be  as  well  put,  or  perhaps  better,  in  the  lan- 
guage of  my  Brother  Alderson  this  morning,  that  if  you  ask  a  witness 
whether  he  has  not  said  so  and  so,  and  the  matter  he  is  supposed  to 
have  said,  would,  if  he  had  said  it,  contradict  any  other  part  of  his  tes- 
timony, then  you  may  call  another  witness  to  prove  that  he  had  said 
so,  in  order  that  the  jury  may  believe  the  account  of  the  transaction 
which  he  gave  to  that  other  witness  to  be  the  truth,  and  that  the  state- 
ment he  makes  on  oath  in  the  witness-box  is  not  true. 

As  to  the  authorities  cited  by  ]\Ir.  Bovill,  with  the  greatest  respect 
for  the  learned  writers  whose  words  he  has  quoted,  I  must  say  I  think 
the  expression,  "as  to  any  matters  connected  with  the  subject  of  in- 
quiry," is  far  too  vague  and  loose  to  be  tlie  foundation  of  any  judicial 
decision.  And  I  may  say,  I  am  not  at  all  prepared  to  adopt  the  propo- 
sition in  those  general  terms — that  a  witness  may  be  contradicted  as 
to  any  thing  he  denies  having  said,  provided  it  be  in  any  way  connect- 
ed with  the  subject  before  the  jury.  It  must  be  connected  with  the  is- 
sue as  a  matter  capable  of  being  distinctly  given  in  evidence,  or  it  must 

69  Opinions  of  Alderson  and  Rolfe,  BB.,  omitted. 


3S4  WITNESSES  •  (Ch.  2 

be  so  far  connected  with  it  as  to  be  a  matter  which,  if  answered  in  a 
particular  way,  would  contradict  a  part  of  the  witness's  testimony ;  and 
if  it  is  neither  the  one  nor  the  other  of  these,  it  is  collateral  to,  though 
in  some  sense  it  may  be  considered  as  connected  with,  the  subject  of 
inquiry.  A  distinction  should  be  observed  between  those  matters  which 
may  be  given  in  evidence  by  way  of  contradiction,  as  directly  affecting 
the  story  of  the  witness  touching  the  issue  before  the  jury,  and  those 
matters  which  affect  the  motives,  temper,  and  cliaracter  of  the  witness, 
not  with  respect  to  his  credit,  but  with  reference  to  his  feelings  to- 
wards one  party  or  the  other.  In  the  case  cited,  of  Thomas  v.  David 
[7  C.  &  P.  350]  on  the  witness  being  asked  whether  she  was  not  con- 
nected in  a  particular  manner  with  one  of  the  parties,  and  having  de- 
nied it,  the  learned  judge  permitted  evidence  to  be  given  to  show  that 
the  connection  which  she  swore  had  not  existed,  did  in  reality  subsist. 
The  object  in  doing  so  was,  not  to  prove  or  disprove  any  part  of  her 
testimony,  but  the  evidence  was  received  on  the  same  ground  as  it  was 
in  the  case  of  Ex  parte  Yewin  [2  Campb.  638],  where  Mr.  Justice  Law- 
rence permitted  evidence  to  be  given  to  contradict  a  witness  as  to  his 
having  used  expressions  importing  revenge.  It  is  certainly  allowable 
to  ask  a  witness  in  what  manner  he  stands  affected  towards  the  op- 
posite party  in  the  cause,  and  whether  he  does  not  stand  in  such  a  re- 
lation to  that  person  as  is  likely  to  affect  him,  and  prevent  him  from 
having  an  unprejudiced  state  of  mind,  and  whether  he  has  not  used 
expressions  importing  that  he  would  be  revenged  on  some  one,  or  that 
he  would  give  such  evidence  as  might  dispose  of  the  cause  in  one  way 
or  the  other.  If  he  denies  that,  you  may  give  evidence  as  to  what  he 
has  said,  not  with  the  view  of  having  a  direct  effect  on  the  issue,  but 
to  show  what  is  the  state  of  mind  of  that  witness,  in  order  that  the 
jury  may  exercise  their  opinion  as  to  how  far  he  is  to  be  believed.  But 
those  cases,  where  you  may  show  the  condition  of  a  witness,  or  his  con- 
nection with  either  of  the  parties,  are  not  to  be  confounded  with  other 
cases,  where  it  is  proposed  to  contradict  a  witness  on  some  matter  un- 
connected with  the  question  at  issue.  And  as  to  the  latter  class  of 
cases,  it  appears  to  me  that  no  instance  has  been  cited  by  Mr.  Bovill 
which  amounts  to  an  authority  that  you  may  contradict  the  witness  on 
any  matter  that  is  not  directly  in  issue  before  the  Court. 

In  this  case  it  is  admitted,  that,  with  reference  to  the  offering  of  a 
bribe,  it  could  not  originally  have  been  proved  that  the  offer  of  the 
bribe  had  been  made  to  tlie  witness  to  make  a  particular  statement, 
the  bribe  not  having  been  accepted  by  him.  And  the  reason  is,  that 
it  is  totally  irrelevant  to  the  matter  in  issue,  that  some  person  should 
have  thought  fit  to  offer  a  bribe  to  the  witness  to  give  an  untrue  ac- 
count of  a  transaction,  and  it  is  of  no  importance  whatever,  if  that 
bribe  was  not  accepted.  It  is  no  disparagement  to  a  man  that  a  bribe 
is  offered  to  him:  it  may  be  a  disparagement  to  the  person  who  makes 
the  offer.  If,  therefore,  the  witness  is  asked  the  fact,  and  denies  it 
or  if  he  is  asked  whether  he  said  so  and  so,  and  denies  it,  he  cannot 


Sec.  4)  EXAMINATION   OF   WITNESSES  385 

be  contradicted  as  to  what  he  has  said.  Lord  Stafford's  case  [7  How. 
St.  T.  1400]  was  totally  different.  There  the  witness  himself  had 
been  implicated  in  offering  a  bribe  to  some  other  person.  That  imme- 
diately affected  him,  as  proving  that  he  had  acted  the  part  of  a  subor- 
ner for  the  purpose  of  perverting  the  truth.  In  that  case  the  evidence 
was  to  show  that  the  witness  had  offered  a  bribe  in  the  particular  case, 
and  the  object  was  to  show  that  he  was  so  affected  towards  the  party 
accused  as  to  be  willing  to  adopt  any  corrupt  course  in  order  to  carry 
out  his  purpose.  It  seems  to  me  that,  under  these  circumstances,  this 
evidence  was  properly  excluded,  and  that,  therefore,  this  rule  should  be 
discharged. 

Rule  discharged.^** 


HARDEN  V.  HAYS. 
(Supreme  Court  of  Pennsylvania,  1848.     9  Pa.  151.) 

Rogers,  J.®^  *  *  *  The  plaintiff  having  given  evidence  of  the 
execution  of  the  will  by  the  subscribing  witnesses,  viz. :  by  proving  the 
handwriting  of  Samuel  Cochran,  and  by  the  testimony  of  Charles 
Chessman,  the  defendants  proposed  to  prove  that  Samuel  Cochran, 
the  witness  to  the  will,  in  conversation  with  the  witness  said  repeated- 
ly that  the  testator  was  not  in  his  right  mind  when  the  will  was  drawn 
and  executed ;  that  he  regretted  he  had  drawn  it  or  had  anything  to 
do  with  it,  and  that  it  ought  to  be  burned  or  destroyed.  The  evidence 
so  offered  was  rejected  by  the  court,  and  this  forms  one  of  the  promi- 
nent points  in  the  case.  This  testimony,  if  true,  would  be  decisive  of 
the  plaintiff's  case.  Its  materiality  cannot,  therefore,  be  disputed.  It 
is  equally  clear  that,  had  Cochran  lived  and  been  brought  to  the  stand, 
it  would  have  been  evidence  of  the  most  overwhelming  character. 
Cowden  v.  Reynolds,  12  Serg.  &  R.  281.  But  it  is  said  that  inasmuch 
as  he  is  dead,  and  his  handwriting  only  proved,  the  evidence,  from  the 
accident  of  death,  must  be  excluded.  The  opinion  of  the  court  is  not 
without  authority  to  support  it,  for  the  same  point  has  been  ruled  in 
Stobart  v.  Dryden,  1  Meeson  &  Welsby,  615.  The  reasons  on  which 
the  case  was  ruled  are  well  summed  up  by  Mr.  Greenleaf,  in  his  val- 
uable Treatise  on  Evidence,  vol.  1,  p.  216,  §  126.  Such  testimony  was 
overruled  by  the  court,  "because  the  evidence  of  the  handwriting  in 
the  attestation  is  not  used  as  a  declaration  of  the  witness,  but  is  offered 
merely  to  show  the  fact  that  he  put  his  name  there  in  the  manner  in 
which  attestations  are  usually  placed  to  genuine  signatures,  and  the 
second  chiefly  because  of  the  mischiefs  which  would  ensue  if  the  gen- 

6  0  See  Williams  v.  State,  73  Miss.  820,  19  South.  826  (1S96),  where  a  num- 
ber of  the  cases  are  reviewed. 

61  Statement  and  part  of  opinion  omitted. 

HiKT.Ev.— 25 


386  WITNESSES  (Ch.  2 

eral  rule  excluding  hearsay  were  thus  broken  in  upon ;  for  the  security 
of  solemn  instruments  would  thereby  become  much  impaired,  and  the 
rights  of  parties  under  them  would  be  liable  to  be  affected  at  remote 
periods  by  loose  declarations  of  the  attesting  witnesses,  which  could 
neither  be  explained  nor  contradicted  by  the  testimony  of  the  wit- 
nesses themselves.  In  admitting  such  declarations,  too,  there  would 
be  no  reciprocity;  for  although  the  party  impeaching  the  instrument 
would  thereby  have  an  equivalent  for  the  loss  of  his  power  of  cross- 
examination  of  the  living  witness,  the  other  party  would  have  none  for 
the  loss  of  his  power  of  re-examination." 

That  there  is  force  in  the  reasoning  of  the  court,  I  am  not  disposed 
to  deny,  ahhough  I  cannot  agree  to  the  first  reason  assigned.    It  is  not 
true  at  least  in  this  state,  where  subscribing  witnesses  are  not  required 
to  a  will,  that  the  evidence  of  handwriting  in  the  attestation  is  offered 
merely  as  the  declaration  of  the  fact  that  he  put  his  name  there  in 
the  manner  in  w^hich  attestations  are  usually  placed  to  genuine  signa- 
tures.    On  the  contrary,  proof  of  the  handwriting  of  a  deceased  sub- 
scribing witness  is  not  merely  evidence  that  he  attested  the  wall,  but 
it  is  also  proof  of  the  sanity  of  the  testator.    It  is  evidence  of  that  as- 
serted fact,  because  the  principle  of  law  is,  that  no  man  would  attesi 
the  will  of  any  but  a  sane  person  of  sound,  disposing  mind,  memory,  and 
understanding.     On  such  evidence,  without  more,  a  will  must  be  ad- 
mitted to  probate.     It  is  in  effect  the  attestation  of  the  witness  that 
the  testator  was  sane.     In  Hays  v.  Harden,  6  Pa.  409,  it  is  ruled  that 
proof  of  the  handwriting  of  the  subscribing  witness  to  a  will,  when 
the  witness  cannot  be  called,  is  equivalent  to  his  oath  to  the  signature 
of  the  testator.     On  this  point  several  cases  have  been  ruled,  some 
closely  analogous,  others  directly  in  point.     Indeed,  I  do  not  under- 
stand it  to  be  denied,  that  you  may  give  evidence  of  the  general  char- 
acter of  the  witness  for  truth  and  veracity  to  impeach  or  lessen  the 
weight  due  to  the  attestation.     Nor  can  it  be  questioned,  in  this  state 
at  least,  after  the  decision  of  the  case  of  Grouse  v.  Miller,  10  Serg.  & 
R.  155,  in  which  it  was  held  that  where  book  entries  were  given  in 
evidence  on  proof  of  the  handwriting  of  a  deceased  or  absent  witness, 
his  character  either  for  truth  or  honesty  might  be  impeached  for  the 
purpose  of  destroying  their  credibility.    This,  it  is  true,  is  not  the  very 
point,  tJut  it  is  analogous  to  the  case  in  hand. 

It  is  admitted  by  Baron  Parke  that  a  contrary  doctrine  had  been  ruled 
in  some  cases  in  England,  although  very  limited,  as  he  says,  indeed,  in 
point  of  number.  It  was  so  ruled  by  Lord  Mansfield,  in  Wright  v. 
Littler,  3  Burrows,  1244 ;  by  Justice  Heath  at  nisi  prius ;  recognized 
and  approved  by  Lord  EHenborough ;  and  to  this  let  me  add,  by 
Bayley,  J.,  in  Doe  v.  Ridgway,  4  Barn.  &  Aid.  55.  He  (the  attesting 
witness  to  a  bond),  Justice  Bayley  says,  must  have  been  called  if  he 
had  been  alive,  and  it  would  then  have  been  competent  to  prove,  by 
cross-examination,  his  declarations  as  to  the  forgery  of  the  bond. 
Now  the  party  ought  not,  by  the  death  of  the  witness,  to  be  deprived  of 


Sec.  4)  EXAMINATION   OF   WITNESSES  387 

obtaining  the  advantage  of  such  evidence.  The  same  may  be  said  of 
5  Bing.  435.  The  weight  of  authority  at  the  time  of  the  decision  of 
Stobert  v.  Dryden,  was  all  on  one  side,  and  opposed  to  the  doctrine 
of  that  case,  which  evidently  was  ruled  on  the  ground  of  the  dangerous 
character  of  the  testimony.  In  Losee  v.  Losee,  Executors,  2  Hill,  609, 
the  Supreme  Court  of  New  York  held  that  where  an  instrument  is 
read  in  evidence  on  proof  merely  of  the  handwriting  of  the  attesting 
witness,  the  adverse  party  may  give  evidence  of  the  witness's  bad  char- 
acter at  the  time  of  attesting,  and  show  his  subsequent  declarations 
that  the  instrument  was  a  forgery.  Chief  Justice  Nelson,  who  delivered 
the  opinion  of  the  court,  cites  many  cases  in  which  the  same  doctrine 
is  held.  The  point  came  incidentally  before  the  court  in  Fox  v.  Evans, 
3  Yeates,  506.  There  the  declarations  of  one  of  the  witnesses  to  a  will, 
who  was  out  of  the  state  and  had  not  been  examined,  was  properly 
overruled ;  but  it  is  evident  from  the  remarks  of  the  court,  that  if  his 
handwriting  had  been  proved,  evidence  of  his  declarations  to  impeach 
him  would  have  been  received.  For  when  a  party  rests  on  his  testi-N 
mony,  it  is  open  to  attack  either  by  proof  of  his  general  character,  or 
by  proof  of  his  repeated  declarations. 

The  same  point  has  also  been  ruled  in  McElwee  v.  Sutton,  2  Bailey 
(S.  C.)  128.  There  a  deed  was  introduced  on  proof  of  the  death  and 
handwriting  of  one  Vail,  the  attesting  witness,  whereupon  the  opposite 
party  offered  to  show  that  Vail  had  frequently  said  the  deed  had  been 
ante-dated  to  protect  the  property  from  creditors.  The  evidence  was 
rejected,  and  for  this  cause,  among  others,  a  new  trial  was  awarded. 
O'Neil,  J.,  who  delivered  the  opinion  of  the  court,  after  remarking  that 
the  presumption  arising  from  the  attestation  in  question  might  be  over- 
come, added:  "To  do  this  nothing  can  be  more  satisfactory  than  to 
show  that  tlie  witness  himself  had  said,  'Although  I  witnessed  the  deed, 
yet  I  know  it  does  not  bear  its  genuine  date,  but  was  ante-dated  to 
save  the  property.'  This  is  in  effect  a  contradiction  of  the  testimony 
which  the  law  presumes  him  to  give."  In  North  Carolina,  where  tres- 
pass was  brought  for  killing  a  slave,  it  was  held  that  the  slave's  good 
character  was  admissible  to  repel  the  presumption  of  his  improper 
conduct.  Pierce  v.  Myrick,  12  N.  C.  345.  So  in  Gardenhire  v.  Parks, 
2  Yerg.  (Tenn.)  23,  and  Vandyke  v.  Thompson,  1  Har.  (Del.)  109,  the 
same  point  was  presented  for  decision  in  the  case  of  deeds  which  had 
been  proved  by  the  subscribing  witnesses  and  subsequently  recorded; 
and  it  was  in  both  instances  determined  that  evidence  of  their  bad 
character  might  be  given  for  tlie  purposes  of  showing  the  instruments 
were  forgeries.  In  tliat  class  of  cases  the  question  becomes  of  primary 
importance.    Vide  notes  to  2  Hill,  612,  and  1  Meeson  &  Welsby,  615, 

From  this  array  of  cases,  it  must  be  agreed  that  on  this  side  of  the 
Atlantic  at  least,  the  weight  of  authority  is  decidedly  in  favour  of  the 
admission  of  the  testimony.  It  is  said  that  if  any  declarations,  at  any 
time,  from  the  mouth  of  subscribing  witnesses  who  are  dead,  are  to 
be  admitted  in  evidence,  the  result  would  be  that  tlie  security  of  solenxi 


3S8  WITNESSES  (Ch.  2 

mstruments  would  be  much  impaired.  The  rights  of  parties  under  wills 
and  deeds  would  be  liable  to  be  affected  at  remote  periods  by  loose  dec- 
larations of  attesting  witnesses,  which  tliose  parties  would  have  no 
oppommit}-  of  contradicting  or  explaining  by  the  evidence  of  the  wit- 
nesses themselves.  I  admit  there  is  force  in  this  view  of  the  case,  and 
that  such  testimony  calls  for  vigilance  and  strict  scrutiny,  but  I  can- 
not aeree  that  this  is  a  reason  for  the  exclusion  of  the  testimonv  al- 
together,  thereby,  in  many  cases,  destropng  the  possibility  ot  exposmg 
fraud,  forger}-,  and  villainy  of  ever\'  description,  so  apt  to  be  practised 
on  persons  of  weak  understandings,  particularly  when  debilitated  by 
sicloiess  and  disease.  It  is  better  that  we  should  incur  the  risk  men- 
tioned, than  that  we  should  sanction  fraud  and  imposition.  The  re- 
marks of  Baron  Parke  show  a  distrust  of  courts  and  juries,  and  if 
pushed  to  an  excess  would  be  an  argument  against  all  testimony  v.-hat- 
ever.  which  we  all  know  has  and  will  continue  to  be  abused ;  but  that 
would  be  a  flimsy  reason  for  excluding  it  altogether.  Htmian  testimony 
mav  be  uncenain,  yet  its  introduction  is  a  necessit}-  with  which  we 
cannot  dispense.  Courts  and  juries  will  make  the  necessar}-  allowances 
so  as  to  attain  the  ends  of  justice  by  extracting  the  truth  from  the 
attending  circumstances. 

The  result  of  this  novel  doctrine,  for  it  is  nothing  less,  it  seems  to 
me  will  be  to  produce  this  result,  that  a  man  who  has  a  valid  title  to- 
day, bv  the  accident  of  death  will  have  none  to-morrow.  To  obtain  this 
questionable  benefit  it  is  hardly  worth  while  to  overturn  a  current  of  au- 
thorities estabHshing  a  different  principle.  And  be  it  remarked,  not 
a  solitarv'  case  to  the  contrary  has  been  cited  on  this  side  of  the  At- 
lantic. And  that  the  admission  of  the  evidence  is  better  calculated  to 
attain  the  ends  of  justice,  would  also  appear  from  this,  that  the  same 
principle  must  be  extended  to  cases  where  the  subscribing  witness  is 
out  of  the  jurisdiction  of  the  court.  It  is  not  difficult  to  see  how 
easy  it  would  be  to  spirit  away  a  subscribing  witness  on  the  eve  of 
trial,  prove  his  handwriting,  thereby  giving  full  effect  to  his  testimony, 
and  then  excluding  all  testimony  of  his  repeated  declarations,  that  the 
bond  or  will  was  a  forger)'  or  a  conspiracy  to  cheat  or  defraud.  Es- 
tabhsh  this  doctrine,  and  we  shall  not  be  without  instances  of  attempts 
to  baffle  justice  by  removing  the  witness,  and  thereby  prevent  the  in- 
troduction of  proof,  which  the  guilt}-  know  would  destroy  their  claim. 
I  have,  therefore,  come  to  the  conclusion  we  shall  better  attain  the  ends 
of  justice  by  adhering  to  the  law  as  established,  than  by  adopting 
fanciful  theories,  although  supported  by  the  authorit}-  of  some  of  the 
members  of  the  Court  of  Exchequer  of  acknowledged  abiht}-  and  tal- 
ents.    *     *     * 

Venire  de  novo.®' 

«2  And  so  in  the  case  of  dyln?  declarations.  Carver  v.  U.  S.,  164  U.  S.  694, 
17  Sup.  Ct.  22S,  41  U  Ed-  602  (1SUT>.  But  see  Stobart  ?.  Drjden,  1  M.  6:  W. 
615  {1836). 


Sec.  4)  EXAMINATION   OF    WITNESSES  380 

BEAUBIEX  et  al.  v.  CICOTTE  et  al. 
(Supreme  Court  of  Michigan,   lSt>4.     12  Mich.  4.59.) 

Campbell,  J.®'  This  case  arises  upon  the  will  of  Antoine  Beaublen, 
deceased,  probate  of  which  was  refused  in  the  Probate  Court,  and  in 
the  Circuit  Court  for  Wayne  county  to  which  an  appeal  was  brought. 

The  will  was  opposed  on  the  grounds  of  incapacity,  and  fraud  and 
undue  influence.  The  proponents  now  bring  error,  alleging  that  the 
court  below  received  and  rejected  testimony  improperly.     *     *     * 

Dr.  Smith,  who  had  testified  in  his  direct  examination  to  the  valid 
execution  of  the  will,  and  the  capacit}-  of  the  testator,  was  asked 
whetl:;er  he  had  not,  on  a  certain  occasion,  at  Mr.  Beaufait's  house, 
had  a  conversation  with  George  ^loran  and  one  Page,  referring  to 
Beaubien's  death  and  will,  and  declaring  that  if  the  family  should 
follow  it  up  they  would  break  the  will,  for  it  was  not  worth  a  snap  of 
his  fingers.  This  he  denied.  Moran  was  called  upon  the  stand  and 
asked  whether,  on  that  occasion.  Smith  made  the  remark  mentioned 
concerning  the  will.  The  question  being  objected  to  was  discussed, 
and  withdrawn  to  introduce  some  preliminary  inquiries  which  were  ob- 
jected, to,  and  which  related  to  the  preliminar\-  conversation  touching 
Beaubien's  death,  and  whether  !Moran  had  any  conversation  with  Smith 
that  night  about  the  will.  Smith  having  denied  any  conversation  with 
him  on  any  subject.  The  grounds  of  the  objection  were  not  given,  but 
it  is  now  claimed  that  the  conversation,  if  had,  was  immaterial.  We 
tliink  the  contradiction  comes  properly  within  the  rule  of  impeach- 
ment. When  a  witness  testifies  on  the  stand  that  a  paper  was  duly 
executed  by  a  competent  testator,  his  statement  on  another  occasion 
that  the  instrument  was  worthless,  is  a  clear  contradiction  on  the  ver^- 
essence  of  the  issue.  The  case  of  Patchin  v.  Astor  Mutual  Ins.  Co.,  13 
X.  Y.  268,  where  the  same  objection  was  made  that  is  made  here,  that 
the  statement  was  one  of  opinion  and  not  of  fact,  is  directly  in  point. 
It  was  in  the  vvitness's  power,  if  he  saw  fit,  admitting  the  conversation, 
to  explain  that  it  was  a  mere  matter  of  opinion,  and  based  upon  the 
facts  sworn  to  on  the  trial.  Such  a  statement,  however,  upon  so  plain 
a  matter,  is  usually  one  which  would  be  understood  as  intended  to  cov- 
er facts ;  and  even  if  confined  to  opinion,  it  would,  upon  a  question  of 
capacit}^  and  coming  from  the  attending  physician  and  subscribing 
witness,  be  as  directly  material  to  the  issue,  because  the  wimess's  opin- 
ion formed  one  of  the  most  important  parts  of  his  testimony.  It  is 
difficult  to  conceive  how  a  subscribing  witness  could  declare  a  will 
worthless,  and  yet  not  intend  to  convey  a  statement  of  fact  inconsistent 
with  testimony  which  should  show  it  to  have  been  made  by  a  man  of 
sound  mind,  and  acting  without  pressure.     The  preliminary  questions 


es 


statement  and  part  of  opinion  omitted. 


390  '  WITNESSES  (Cll.  2 

were  necessary  in  order  to  identify  time  and  place,  and  the  fact  of  a 
conversation.  The  subsequent  rejection  of  testimony  which  should 
have  been  received  can  not  affect  the  admissibility  of  this.***     *     *     * 


COMMONWEALTH  v.  HAWKINS. 
(Supreme  Judicial  Court  of  Massactiusetts,  1855.     3  Gray,  463.) 

Trial  on  an  indictment  for  murder,  before  Shaw,  C.  J.,  and  Met- 
calf  and  Bigelow,  JJ.'^'^ 

Bolles,  for  the  defendant,  offered  the  depositions  taken  before  the 
coroner,  at  the  inquest  on  the  body  of  Leet,  for  the  purpose  of  con- 
tradicting the  evidence  given  by  the  same  witnesses  at  this  trial,  when 
called  by  the  Commonwealth.  The  attorney  general  objected,  on  the 
ground  that  the  witnesses  sought  to  be  impeached  had  not  been  asked, 
on  their  examination,  whether  they  had  not  previously  made  dift"erent 
statements,  nor  had  their  attention  in  any  way  called  to  their  deposi- 
tions before  the  coroner. 

But  the  Court  were  of  opinion  that,  for  the  purpose  of  impeaching 
the  witnesses,  such  parts  of  their  depositions  were  admissible  as  were 
contradictory  of  the  evidence  given  by  them  at  the  trial ;  that  the  uni- 
form practice  in  this  commonwealth,  differing  in  this  respect  from  that 
of  England,  and  some  of  the  other  states,  had  been,  as  stated  in  Tuck- 
er V.  Welsh,  17  Mass.  160,  9  Am.  Dec.  137,  to  allow  the  introduction  of 
evidence  that  a  witness  had  previously  made  different  statements,  with- 
out first  calling  his  attention  to  such  statements  f°  that  after  such  parts 
had  been  read,  the  Commonwealth  would  have  the  right  to  require 
the  whole  of  the  former  statement  to  be  read,  and  might  recall  the 
witness  afterwards  to  explain- the  alleged  discrepancy. 

Bolles  then  proposed  to  point  out  to  the  jury  tliat  these  witnesses 
had  omitted,  in  their  testimony  before  the  coroner,  material  facts  to 
which  they  now  testified,  and  which,  he  argued,  were  so  important  that 
they  could  not  have  been  omitted  then,  and  remembered  now,  consist- 
ently with  the  ordinary  workings  of  a  good  memory  and  a  good  con- 
science. 

e«  And  so  in  Com.  v.  Moinehan,  140  Mass.  403,  5  N.  E.  259  (ISSG);  McFad- 
in  V.  Catron,  120  Mo.  2r;:{,  2.1  S.  W.  500  (1S94).  See  Whipple  v.  Rich,  ISO 
Mass.  477,  63  N.  E.  5  (KK)2),  \vh(>re  it  wa.s  thought  that  the  former  statement 
of  a  wltnes.s  to  an  accident,  that  the  driver  was  not  to  blame,  might  he  re- 
ceived to  contradict  his  testimony,  which  tended  to  show  careles.sness  on  the 
part  of  the  driver. 

o-'Part  of  case  omitted. 

80  And  so  in  KoJ)inson  v.  Hutchinson.  31  Vt  443  (1S59) ;  Inhabitants  of 
New  Portland  v.  Inhabitants  of  KingQeld.  55  Me.  172  (1SS2) ;  Cook  v.  Brown, 
34  X.  II.  40(1  (1S57). 

I'or  a  review  of  the  New  Kiij^larid  cases,  see  Hedge  v.  C-lap]),  22  Conn.  202, 
58  Am.  I>ec.  424  (ISolJ),  in  which  it  is  suggested  that  tlio  rule  is  one  of  prac- 
tice which  may  be  varied  In  the  discretion  of  tlie  judge. 


Sec.  4)  EXAMINATION  OP  WITNESSES  391 

But  the  Court  ruled  that  those  parts  only  of  the  testimony  before  the 
coroner  could  be  read,  for  the  purpose  of  impeaching  the  character 
of  the  witness,  which  went  to  show  a  discrepancy  or  contradiction,  as 
by  showing  that  the  witness  had  given  different  accounts  at  different 
times,  by  alleging  a  fact  at  one  time  which  he  denied  at  another,  or  by 
stating  it  in  two  ways  inconsistent  with  each  other ;  and  that  the  mere 
omission  to  state  a  fact,  or  stating  it  less  fully  before  the  coroner,  was 
not  a  subject  for  comment  to  the  jury,  unless  the  attention  of  the  wit- 
ness was  particularly  called  to  it  at  tlie  inquest.     *     *     *      • 

Verdict,  guilty  of  manslaughter. 


CONRAD  V.  GRIFFEY. 
(Supreme  Court  of  the  United  States,  1853.     16  How.  38,  14  L.  Ed.  835.) 

Mr.  Justice  McLean  delivered  the  opinion  of  the  Court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States,  for 
the  Eastern  District  of  Louisiana. 

This  action  was  brought  to  recover  the  balance  of  three  thousand 
seven  hundred  and  eighty-one  dollars  and  fifty-eight  cents,  claimed  to 
be  due  under  a  contract  to  furnish,  deliver,  and  set  up,  on  the  planta- 
tion of  the  defendant,  in  the  parish  of  Baton  Rouge,  a  steam-engine  and 
sugarmill  boilers,  wheels,  can  carriers,  and  all  other  things  necessary 
for  a  sugar-mill;   all  which  articles  were  duly  delivered. 

The  defendant  in  his  answer  set  up  several  matters  in  defense. 

The  error  alleged  arises  on  the  rejection  of  evidence  offered  by  the 
defendant  on  the  trial  before  the  jury,  and  which  appears  in  the  bill 
of  exceptions.  The  plaintiff  read  in  evidence  the  deposition  of  Leon- 
ard N.  Nutz,  taken  under  a  commission  on  the  28th  of  June,  1852,  and 
filed  the  9th  of  July  succeeding.  The  defendant  then  offered  in  evi- 
dence a  letter  of  the  witness  dated  at  New  Albany,  on  the  3d  April, 
1846,  with  an  affidavit  annexed  by  him  of  the  same  date,  addressed  to 
the  plaintiff  Griffey.  As  preliminary  proof  to  the  introduction  of  said 
letter,  the  defendant  adduced  the  bill  of  exceptions  signed  upon  a 
former  trial  of  this  cause,  and  filed  on  the  23d  February,  1849, 
showing  that  the  letter  had  been  produced  by  the  plaintiff  in  the  for- 
mer trial,  and  read  by  his  counsel  in  evidence  as  the  letter  of  Nutz,  in 
support  of  a  former  deposition  made  by  him.  And  the  said  letter  and 
affidavit  were  oft'ered  by  the  defendant  to  contradict  and  discredit  the 
deposition  of  the  witness  taken  the  28th  June,  1852;  but  upon  objec- 
tion of  counsel  for  the  plaintiff  that  the  witness  had  not  been  cross- 
examined  in  reference  to  the  writing  of  said  letter,  or  allowed  an  op- 
portunity of  explaining  the  same,  it  was  rejected. 

•At  the  former  trial  the  letter  was  oft'ered  in  evidence  by  the  plaintiff 
in  the  Circuit  Court,  to  corroborate  what  Nutz,  the  witness,  at  that 


392  WITNESSES  (Ch.  2 

time  had  sworn  to;  and  the  letter  was  admitted  to  be  read  for  that 
purpose  by  the  court.  On  a  writ  of  error,  this  court  held  that  the  Cir- 
cuit Court  erred  in  admitting  the  letter  as  evidence,  and  on  that  ground 
reversed  the  judgment.  Conrad  v.  Griffey,  11  How.  492,  13  L.  Ed.  779. 
The  rule  is  well  settled  in  England,  that  a  witness  cannot  be  im- 
peached by  showing  that  he  had  made  contradictory  statements  from 
those  sworn  to,  unless  on  his  examination  he  was  asked  whether  he  had 
not  made  such  statements  to  the  individuals  by  whom  the  proof  was 
expected  to  be  given.  In  the  Queen's  case,  2  Brod.  &  B.,  312;  Angus 
V.  Smith,  1  Moo.  &  M.  473;  3  Stark.  Ev.  1740,  1753,  1754;  Carpen- 
ter v.  Wall,  11  Ad.  &  El.  803. 

This  rule  is  founded  upon  common  sense,  and  is  essential  to  pro- 
tect the  character  of  a  witness.  His  memory  is  refreshed  by  the 
necessary  inquiries,  which  enables  him  to  explain  the  statements  re- 
ferred to,  and  show  they  were  made  under  a  mistake,  or  that  there 
was  no  discrepancy  between  them  and  his  testimony. 

This  rule  is  generally  established  in  this  country  as  in  England. 
Doe  V.  Reagan,  5  Blackf.  (Ind.)  217,  33  Am.  Dec.  466;  Franklin 
Bank  V.  Steam  Nav.  Co.,  11  Gill  &  J.  (Md.)  28,  33  Am.  Dec.  687; 
Palmer  v.  Haight,  2  Barb.  (N.  Y.)  210,  213;  McKinney  v.  Neil,  1 
McLean,  540,  Fed.  Cas.  No.  8,865;  United  States  v.  Dickinson.  2 
McLean,  325,  Fed.  Cas.  No.  14,958;  United  States  v.  Brown,  4  Mc- 
Lean, 378,  381,  Fed.  Cas.  No.  14,668;  Jenkins  v.  Eldredge,  3  Story, 
181,  284,  Fed.' Cas.  No.  7,266;  Kimball  v.  Davis,  19  Wend.  (N.  Y.) 
437;  Brown  v.  Kimball,  25  Wend.  (N.  Y.)  259.  "The  declaration  of 
witnesses  whose  testimony  has  been  taken  under  a  commission,  made 
subsequent  to  the  taking  of  their  testimony,  contradicting  or  invali- 
dating their  testimony  as  contained  in  the  depositions,  is  inadmissible,  if 
objected  to.  The  only  way  for  the  party  to  avail  himself  of  such 
declarations  is  to  sue  out  a  second  commission."  "Such  evidence  is 
always  inadmissible  until  the  witness,  whose  testimony  is  thus  sought 
to  be  impeached,  has  been  -examined  upon  die  point,  and  his  attention 
particularly  directed  to  the  circumstances  of  the  transaction,  so  as  to 
furnish  him  an  opportunity  for  explanation  or  exculpation." 

This  rule  equally  applies  whether  the  declaration  of  the  witness,  sup- 
posed to  contradict  his  testimony,  be  written  or  verbal.     3  Stark.  Ev. 

1741. 

A  written  statement  or  deposition  is  as  susceptible  of  explanation, 
as  verbal  statements.  A  different  rule  prevails  in  Massachusetts  and 
the  State  of  Maine. 

The  letter  appears  to  have  been  written  six  years  before  the  deposi- 
tion was  taken  which  the  letter  was  offered  to  discredit.  This  shows 
the  necessity  and  propriety  of  the  rule.  It  is  not  probable  that,  after 
the  lapse  of  so  many  years,  the  letter  was  in  the  mind  of  the  witness 
when  his  deposition  was  sworn  to.  But,  inde]jendently  of  the  lapse  of 
time,  the  rule  of  evidence  is  a  salutary  one,  and  cannot  be  dispensed 


Sec.  4)  EXAMINATION   OF   WITNESSES  393 

within  the  courts  of  the  United  States.     There  was  no  error  in  the 
rejection  of  the  letter,  under  the  circumstances,  by  the  Circuit  Court; 
its  judgment  is  therefore  affirmed,  with  costs. 
Affirmed.®^ 


PEOPLE  V.  BROOKS. 

(Court  of  Appeals  of  New  York,  1S92.     131  N.  Y.  321,  30  N.  E.  189.) 

Earl,  C.  J."*  The  defendant  was  indicted  for  setting  fire  to  the 
store  occupied  by  her  in  the  city  of  Syracuse  on  the  27th  day  of  Octo- 
ber, 1890.  She  was  brought  to  trial  in  the  court  of  sessions  of  Onon- 
daga county  in  February,  1891,  and  was  convicted  of  arson  in  the  first 
degree,  and  was  sentenced  to  the  Onondaga  penitentiary  for  the  term 
of  15  years.  Her  conviction  having  been  affirmed  by  the  general  term 
of  the  Supreme  Court,  she  then  appealed  to  this  court. 

The  learned  counsel  for  the  defendant  has  brought  to  our  attention 
three  grounds  upon  which  he  claims  the  judgment  should  be  reversed. 
Upon  the  trial  the  principal  evidence  adduced  against  the  defendant 
to  show  her  guilt  was  that  of  Charlotte  Brooks,  the  daughter  of  her 
husband  by  a  former  wife,  who  was  about  18  years  old.  She  testified 
that,  three  or  four  days  before  the  fire,  the  defendant  required  her  to 
take  an  oath,  by  kissing  the  Jewish  Bible,  that  she  would  not  tell  to 
any  one  what  she  was  about  to  say  to  her ;  and  that,  after  she  had  tak- 

6'  The  first  clear  statement  of  this  rule  was  made  in  Angus  v.  Smith. 
Moody  &  Malkin,  473  (1829),  by  Tindal,  C.  J.:  "As  far  as  the  contradiction 
of  the  witness  of  the  plaintiff  is  concerned,  I  am  clearly  of  opinion  that 
the  conversation  proposed  is  not  admissible  in  evidence.  I  understand  the 
rule  to  be,  that  before  you  can  contradict  a  witness  by  showing  he  has  at 
some  other  time  said  something  inconsistent  with  his  present  evidence,  you 
must  ask  him  as  to  the  time,  place,  and  person  involved  in  the  supposed 
contradiction.  It  is  not  enough  to  ask  him  the  general  question,  whether 
lie  has  ever  said  so  and  so,  because  it  may  frequently  happen  that,  upon  the 
general  question,  he  may  not  remember  having  so  said;  whereas,  when  his 
attention  is  challenged  to  particular  circumstances  and  occasions,  he  may 
recollect  and  explain  what  he  has  formerly  said.  I  think,  as  far  as  my  mem- 
ory serves,  the  rule  was  so  laid  down  to  this  extent  in  the  Queen's  case. 
I  will  allow  the  plaintiffs  witness  to  be  recalled  and  asked  the  question." 

Reporter's  footnote  to  Angus  v.  Smith,  supra:  "See  1  Phill.  Ev.  292.  5th 
edition;  and  The  Queen's  case,  2  Brod.  &  Bing.  299  (1820).  That  decision 
established  the  principle  that  it  was  necessary  to  remind  the  witness  of 
the  conversation,  but  it  does  not  appear  from  the  report  to  have  laid  down 
any  rule  as  to  the  manner  or  degree  in  which  it  ought  to  be  suggested  to 
him:  and. the  que.stion  there  put  to  the  judges  assumed  that  the  witness 
had  not  been  at  all  interrogated  with  respect  to  the  declaration  supposed 
to  have  been  made  by  him.  The  general  practice,  however,  since  that  deci- 
sion, has  been  in  conformity  with  the  rule  adopted  in  the  principal  case." 

That  the  rule  is  not  varied  by  the  fact  that  the  contradictory  statement  was 
made  after  the  testimony  was  given,  and  that  an  examination  of  the  witness 
has  become  impossible,  see  Mattox  v.  U.  S.,  150  U  S.  237,  15  Sup.  Ct.  337, 
.39  L.  Ed.  409  (1894),  Shiras,  J.,  dissenting.  Compare  Carver  v.  U.  S..  104  U. 
S.  094,  17  Sup.  Ct.  228,  41  L.  Ed.  002  (1897),  admitting  contradictory  state- 
ments to  discredit  a  dying  declaration. — Ed. 

8  8  Part  of  opinion  omitted. 


394  WITNESSES  (Ch.  2 

en  the  oath  and  promised  that  she  would  not  tell,  she  said  to  her  that  she 
had  bills  for  goods  to  settle,  and  that  there  was  a  judgment  against  her, 
and  she  was  going  to  make  a  bonfire  of  the  goods  in  the  store,  and  burn 
them  up ;  and  that,  after  she  had  taken  the  oath,  the  defendant  told  her, 
if  she  did  tell  what  she  had  said  to  her,  she  would  be  sent  to  prison  for 
20  years  for  perjury.  There  was  other  evidence  pointing  to  the  guilt 
of  the  defendant,  and  corroborating  the  story  related  by  the  witness 
Charlotte.  The  defendant  was  called  as  a  witness  on  her  own  behalf, 
and  these  questions  were  put  to  her  by  her  counsel:  "Now,  state 
whether  or  not  Charlotte  was  friendly  to  you  or  unfriendly."  "Did 
you  and  Charlotte  have  frequent  difficulties  during  that  time?" 
(Meaning  the  time  previous  to  the  fire.)  "Did  Charlotte  assault  you 
on  other  occasions  previous  to  the  fire?"  All  these  questions  were  ob- 
jected to  on  the  part  of  the  prosecution  as  incompetent,  because  Char- 
lotte had  not  been  examined  as  to  the  particular  matters  inquired  of 
on  behalf  of  the  defendant. 

The  trial  judge  sustained  the  objection,  and  excluded  the  evidence, 
because  Charlotte  had  not  been  examined  as  to  the  same  matters,  and 
her  attention  had  not  been  called  to  ,the  particular  matters  inquired  of. 
In  making  the  ruling  the  trial  judge  said :    "You  have  the  witness  here, 
and  can  ask  anything  you  wish  of  her  that  she  has  not  testified  to, 
and,  if  you  think  she  has  not  told  tlie  truth,  you  can  ask  the  witness 
about  it ;   and  I  think  that  is  as  far  as  you  can  go.    I  think  the  rule  is 
this :   That  a  witness  may  be  cross-examined  as  to  his  or  her  attitude 
of  mind  in  regard  to  the  defendant,  and  his  attention  must  be  called 
to  each  and  all  the  transactions  upon  which  the  counsel  for  the  de- 
fendant desires  to  give  evidence.     If  the  witness  admits  the  acts  and 
declarations  that  the  defendant  claims  were  made  and  done,  that  is  the 
end  of  it.     If  the  witness  denies,  then  I  think  it  is  competent  to  call 
other  witnesses  to  contradict  those  matters;    but  to  let  a  witness  go 
ofif  the  stand,  not  having  questioned  the  witness  as  to  the  particulars, 
and  then  calling  third  parties  to  prove  independent  transactions  show- 
ing the  attitude  of  the  mind  of  the  witness  towards  the  party,  I  think 
is  not  the  rule.    So  I  have  allowed  and  do  allow  this  witness  to  testify 
as  to  any  transactions  bearing  upon  that  point  in  regard  to  which  the 
witness  Charlotte  was  examined."     And  the  judge  said,  further:     "I 
should  say  that  the  witness  referred  to  is  in  court  now,  so  that  there  is 
no  loss  to  the  defendant  by  the  application  of  the  rule  as  I  understand 
it."    But  the  counsel  insisted  upon  his  right  to  examine  the  defendant, 
for  the  purpose  of  proving  Charlotte's  hostility  towards  her,  without 
first  examining  Charlotte  in  reference  to  the  same  matter. 

We  think  the  rule  of  law  laid  down  by  the  trial  judge  was  errone- 
ous. The  hostility  of  a  witness  towards  a  party  against  whom  he  is 
called  may  be  proved  by  any  competent  evidence.  It  may  be  shown 
by  cross-examination  of  the  witness,  or  witnesses  may  be  called  who 
can  swear  to  facts  showing  it.  'Hicse  can  be  no  reason  for  holding 
that  the  witness  must  first  be  examined  as  to  his  hostility,  and  that  then. 


Sec.  4)  EXAMINATION   OF   WITNESSES  395 

and  not  till  then,  witnesses  may  be  called  to  contradict  him,  because 
it  is  not  a  case  where  the  party  against  whom  the  witness  is  called  is 
seeking  to  discredit  him  by  contradicting  him.  He  is  simply  seeking  to 
discredit  him  by  showing  his  hostility  and  malice;  and,  as  that  may 
be  proved  by  any  competent  evidence,  we  see  no  reason  for  holding  that 
he  must  first  be  examined  as  to  his  hostility.  And  such  we  think  is 
the  drift  of  the  decisions  in  this  state  and  elsewhere.  Hotchkiss  v.  In- 
surance Co.,  5  Hun,  90;  Starr  v.  Cragin,  24  Hun,  177;  People  v. 
Moore,  15  Wend.  419;  People  v.  Thompson,  41  N.  Y.  6;  Schultz  v. 
Railroad  Co.,  89  N.  Y.  242;  Ware  v.  Ware,  8  Greenl.  (Me.)  42,  53; 
Tucker  v.  Welsh,  17  Mass.  160,  9  Am.  Dec.  137;  Day  v.  Stickney, 
14  Allen  (Mass.)  255;  Martin  v.  Barnes,  7  Wis.  239;  Robinson  v. 
Hutchinson,  31  Vt.  443;  New  Portland  v.  Kingfield,  55  Me.  172; 
Hedge  v.  Clapp,  22  Conn.  262,  58  Am.  Dec.  424;  Cook  v.  Brown,  34 
N.  H.  460.  So  we  think  the  trial  judge  laid  down  an  erroneous  rule 
of  law. 

But  we  are  still  of  opinion  that  no  harm  was  done  to  the  defendant. 
The  extent  to  which  an  examination  may  go  for  the  purpose  of  prov- 
ing the  hostility  of  a  witness  must  be,  to  some  extent  at  least,  within 
the  discretion  of  the  trial  judge.  We  said  about  it,  in  Schultz  v.  Rail- 
road Co.,  supra,  that  "the  evidence  to  show  the  hostile  feeling  of  a 
witness,  when  it  is  alleged  to  exist,  should  be  direct  and  positive,  and 
not  very  remote  and  uncertain,  for  the  reason  that  the  trial  of  the  main 
issue  in  the  case  cannot  be  properly  suspended  to  make  out  the  case  of 
hostile  feeling  by  mere  circumstantial  evidence  from  which  such  hos- 
tility or  malice  may  or  may  not  be  inferred."  Before  these  questions 
were  excluded,  the  defendant's  counsel,  on  the  examination  of  Char- 
lotte, proved  by  her  that  she  and  the  defendant  had  had  frequent  al- 
tercations; that  the  defendant  "used  to  whip  her  lots  of  times." 
*  *  *  We  think  there  was  ample  evidence  to  show  the  state  of  feel- 
ing between  the  defendant  and  Charlotte.     *     *     * 

Affirmed. 


REX  V.  HODGSON. 
(Court  of  Crown  Cases  Reserved,  1S12.     Russ.  &  R.  211.) 

The  prisoner  was  tried  and  convicted  before  Mr.  Baron  Wood,  at 
the  Yorkshire  summer  assizes,  in  the  year  1811,  on  an  indictment  for 
committing  rape  upon  Harriet  Halliday,  spinster. 

After  the  girl  had  given  her  evidence  in  support  of  the  prosecution 
she  was  cross-examined  by  the  prisoner's  counsel,  who  put  these  ques- 
tions to  her : 

Whether  she  had  not  before  had  connections  with  other  persons? 
and  whether  she  had  not  before  had  connection  with  a  particular  per- 
son? (named). 


396  WITNESSES  (Ch.  2 

The  counsel  for  the  prosecution  objected  that  she  was  not  obliged 
to  answer  these  questions ;  but  it  was  contended  by  the  prisoner's  coun- 
sel, that  in  a  case  of  rape  she  was. 

The  learned  judge  allowed  the  objection,  on  the  ground  that  the 
witness  was  not  bound  to  answer  these  questions,  a<s  they  tended  to 
criminate  and  disgrace  herself,  and  said  that  he  thought  there  was  not 
any  exception  to  the  rule  in  the  case  of  rape. 

The  prisoner's  counsel  called  witnesses,  and  among  others,  offered 
a  witness  to  prove  that  the  girl  had  been  caught  in  bed  about  a  year 
before  this  charge  with  a  young  man,  and  offered  the  young  man  to 
prove  he  had  connection  with  her. 

The  counsel  for  the  prosecution  objected  to  the  admissibility  of  this 
sort  of  evidence  of  particular  facts,  not  connected  wnth  the  present 
charge,  as  they  could  not  come  prejmred  to  answer  them. 

The  learned  judge  allowed  the  objection,  and  the  witnesses  were  not 
examined. 

The  prisoner  was  found  guilty;  but  the  judgment  was  respited  and 
these  points  saved  for  the  consideration  of  the  judges. 

On  the  2d  of  December,  1811,  this  case  was  considered  by  all  the 
judges  (except  Mansfield,  C.  J.,  Macdonald,  C.  B.,  Grose,  J.,  and  Law- 
rence, J.,  who  were  absent),  and  was  postponed  for  consideration  to 
Hilary  term,  30th  January,  1812,  when,  all  the  judges  being  present, 
they  determined  that  both  the  objections  were  properly  allowed."" 


69 


69  Lord  EllGnborougli  in  Rex  v.  Walsou,  2  Starkie,  116  (1817):  "This  is 
so  clear  a  point,  and  so  entirely  witliout  precedent,  that  it  would  be  a  waste 
of  time  to  call  for  a  reply.  For  the  purpose  of  ascertaining  the  credit  due 
to  witnesses,  the  Court  indulge  free  cross-examination;  but  when  a  criine 
is  imputed  to  a  witness,  of  which  he  may  be  convicted  by  due  course  of  law, 
the  Court  Imow  but  one  medium  of  proof,  the  record  of  conviction.  It  is  the 
constant  practice  at  nisi  prius  not  to  receive  such  evidence  without  the 
record  of  conviction.  You  may  ask  the  witness  whether  he  has  been  guilty 
of  such  a  crime,  this,  indeed,  would  be  improperly  asked,  because  he  is  not 
bound  to  criminate  himself,  but  if  he  does  answer  promptly,  you  must  be 
bound  by  the  answer  which  he  gives,  for  the  Court  does  not  sit  for  the  pur- 
pose of  examining  into  collateral  crimes.  It  would  be  unjust  to  permit  it, 
for  it  would  be  impossible  that  the  party  should  be  ready  to  exculpate  himself, 
by  bringing  forward  evidence  in  answer  to  the  charge,  there  would  be  no 
possibility  of  a  fair  and  competent  trial  upon  the  subject,  and  therefore  it 
is  never  done." 

Kindcrsley,  V.  O.,  in  Goddard  v.  Parr,  24  L.  J.  Eq.  (N.  S.)  783  (Chancery, 
1855):  "I  cannot  conceive  that  any  doubt  can  arise  upon  this  motion.  It 
Is  an  established  rule,  that  if  one  party  calls  a  witness,  and  the  other  party, 
in  rros.s-examinution,  asks  a  question  to  elicit  the  fact  that  the  witness  has 
been  guilty  of  some  crime  or  misdemeanour,  the  party  so  cross-examining  has  a 
perfect  right  to  put  such  a  question;  but  then  lie  umst  be  content  with  the 
answer  he  gets,  and  it  Is  not  competent  for  him  to  call  witnesses  to  show 
that  the  witness  under  examination  has  been  guilty  of  any  crime  which  Js 
quite  irrelevant  to  the  matter  in  dispute.  It  would  be  very  different  if 
the  question  had  any  relevancy  to  the  matter  at  issue  between  the  parties. 
Here  the  question  relates  to  some  contract,  or  alleged  contract,  entered  into 
between  certain  p<!rsons;  and  the  witness  Stroud  is  called  to  prove  the  con- 
tract. He  makes  an  affidavit,  and  is  then  cross-examined  by  the  other  side, 
and  he  is  asked  whftlier  he  ever  told  fortunes.  Now,  telling  fortunes  is  an 
act  which  subjects  a  man  to  legal  punishment-     His  answer  is — 'No,  I  uev- 


Sec.  4)  EXAMINATION    OF   WITNESSES  397 

REG.  V.  RILEY. 
(Court  of  Crown  Cases  Reserved,  1887.     16  Cox.  191.) 

Lord  Coleridge,  C.  J.''"  I  am  of  opinion  that  this  conviction  must 
be  quashed,  on  the  ground  that  evidence  material  to  the  issue  was  re- 
jected by  the  court.  The  indictment  was  for  an  assault  committed  by 
the  prisoner  upon  a  woman  with  intent  to  commit  a  rape  upon  her; 
and  the  questions  and  answers  that  were  rejected  were  tendered  for 
the  following  purpose;  namely,  that  the  woman  having  denied  that 
she  had  had  connection  with  the  individual  accused  of  assaulting  her, 
it  was  sought  ab  aliunde  to  prove  that  at  certain  specified  times  and 
places  before  the  time  of  the  commission  of  the  alleged  offence,  she 
had  voluntarily  had  connection  with  the  prisoner.  It  appears  to  me 
clear  that  such  evidence  was  admissible.  Now,  it  has  been  held  oyer 
and  over  again  that  where  evidence  is  denied  by  the  prosecutrix  with 
regard  to  acts  of  connection  committed  by  her  with  persons  other  than 
the  prisoner,  she  cannot  be  contradicted.  The  rejection  of  such  evi- 
dence is  founded  on  good  common  sense,  not  only  because  it  would  put 
very  cruel  hardship  on  a  prosecutrix,  but  also  on  the  ground  that  the 
evidence  does  not  go  to  the  point  in  issue,  that  point  being  whether  or 
not  a  criminal  assault  has  been  made  upon  her  by  the  prisoner.  To 
admit  evidence  of  connection  previously  with  persons  other  than  the 

er  did.  and  I  never  have  had  any  other  occupation  than  that  of  a  land  agent 
and  surveyor.'     Now,  it  is  not  contended  but  that  this  fact  is  entirely  ir- 
relevant to  the  matter  at  issue.     After  this,  witnesses  are  examined  by  the 
other  side  for  the  purpose  of  proving  that  the  witness  Stroud  had  told  their 
fortunes,  and  had  been  paid  for  it  upon  several  occasions.     One  thing  is  ob- 
vious, that  if  it  is  competent  to  do  that,  you  may  bring  a  host  of  witnesses  to 
contradict  every  fact  that  is  stated,  whether  relevant  or  not.     Suppose,  for 
instance,  that  when  Fanny  Duffin  was  called  as  a  witness  to  show  that  Au- 
stin Stroud  told  fortunes,  she  had  been  cross-examined,  and  had  been  asked 
whether  she  had  ever  been  guilty  of  brawling  in  church,  or  any  other  crime 
having  nothing  to  do  with  the  matter  in  dispute.    Then  if  she  had  answered 
no,  it  would  be  competent  to  bring  other  witnesses  to  prove  that  she  bad 
been  guilty  of  brawling  in  church.    Then,  again,  any  of  these  witnesses  might 
be  asked  the  most  simple  questions,  and  others  brought  to  contradict  them; 
so  the  matter  might  go  on  to  all  eternity.     Anything  more  absurd  one  can- 
not imagine.     It  would  be  contrary   to  justice  in  every  way;    and  on  this 
ground   the  rule  has  been  long  since  recognized  for  the  purpose  of  putting 
some  limit  to  the  examination  of  witnesses,  that  you  can  only  call  witnesses 
to  contradict  evidence  which  is  material  to  the  question  at  issue  between  the 
parties.     Then  it  has  been  said  that  this  question  is  relevant  in  this  way, 
that  Stroud  described  himself  as  a  land  surveyor;  and  if  it  can  be  proved  that 
he  ever  told  fortunes,  ergo  he  is  not  a  land  surveyor,  and  his  evidence  cannot 
be  believed  as  such.     If  the  evidence  had  gone  to  prove  that  he  was  not  a 
land  sun^eyor,  then  there  might  possibly  be  something  in  the  question;    but 
the  object  is  to  prove  that  he  did  some  act  wliich  is  not  witliin  the  vocation 
of  a  land  suri-eyor,  and  that  he  did  some  act  which  is  contrary  to  the  law. 
It  appears  to  me  that  the  matter  contained  in  these  affidavits  is  scandalou.s. 
and  is  utterlv  irrelevant  to  the  matter  in  dispute  between  the  parties.    The  af- 
fidavits must,  therefore,  be  taken  off  the  file,  and  the  party  who  filed  them 
must  pay  the  costs." 

7  0  Statement  and  opinion  of  Pollock,  B.,  omitted. 


398  WITNESSES  (Ch.  2 

prisoner  would  be  plainly  contrary  to  the  most  elementary  rules  of 
evidence;  but  to  reject  evidence  as  to  the  particular  person  is  another 
matter.  Because  not  only  does  it  render  it  more  likely  that  she  would 
or  would  not  have  consented,  but  it  is  evidence  which  goes  to  the  very 
point  in  issue.  Take  the  case  of  a  woman  having  lived  without  mar- 
riage for  two  or  three  years  with  a  man  before  the  assault ;  could  it  be 
contended  that,  had  she  denied  it,  proof  of  that  sort  was  not  material  to 
the  issue ;  and,  if  material  to  the  issue,  that  if  denied  evidence  to  con- 
tradict it  could  not  be  given.  I  see  that  Hullock,  B.  is  reported  to 
have  decided  practically  the  very  point  upon  which  our  opinion  is 
now  sought.  That  appears  from  a  note  to  the  case  of  Rex  v.  Martin, 
6  C.  &  P.  562,  where  the  case  of  Rex  v.  Aspinall  is  cited.  If  that  case 
can  be  found  it  is  directly  in  point,  but,  like  Mr.  Addison,  I  have  look- 
ed, and  I  confess  I  cannot  find  the  case.  It  is  enough  for  us  to  say, 
however,  in  the  absence  of  that  case,  that  the  decision  is  common  sense ; 
and  on  the  ground  not  only  of  authority  but  of  good  sense,  I  am  of 
opinion,  that  this  evidence  ought  not  to  have  been  rejected,  and  that, 
as  it  was  rejected,  the  conviction  must  be  quashed. 

Stephen,  J.  I  am  of  the  same  opinion  entirely,  and  have  hardly 
an\'thing  to  add.  I  think  that  the  weight  of  authority  was  decidedly 
in  the  direction  in  which  this  decision  will  place  it.  Although  some  of 
the  authorities  were  rather  in  the  nature  of  dicta  than  of  absolute  judg- 
ments, I  did  not  think,  when  I  wrote  upon  the  subject  that  there  could 
be  much  room  for  doubt ;  but  at  the  same  time,  in  the  absence  of  direct 
authority,  I  did  not  feel  that  my  statement  could  be  made  without  sug- 
gesting that  there  might  be  doubt.  Now,  however,  by  this  decision  the 
doubt,  if  it  existed,  is  removed.  I  may  add,  that  our  observations  with 
regard  to  evidence  as  to  connection  with  other  men  being  inadmissible 
are  not  intended  to  exclude  or  conflict  with  the  decisions  as  to  the  ad- 
missibility of  evidence  as  to  prostitution. 

Mathew  and  Wills,  JJ.,  were  of  the  same  opinion. 

Conviction  quashed. 


COMMONWEALTH  v.  FITZGERALD. 

(Supreme  Judicial  Court  of  Massachusetts,  18G1.     2  Allen,  297.) 

Indictment  for  being  a  common  seller  of  intoxicating  liquor.  At  the 
trial  in  the  superior  court,  William  Tanner,  a  witness  for  the  Com- 
monwealth, testified  to  a  purchase  of  liquor  from  the  defendant,  in 
his  tent  upon  a  camp-field,  and  that  he  purchased  no  other  liquor  and 
had  no  other  on  that  day.  The  defendant  offered  evidence  to  prove 
that  the  witness  was  seen  to  procure  liquor  at  another  tent  on  the  same 
day,  but  Lord,  J.,  excluded  it,  as  a  mere  contradiction  of  the  witness's 
testimony  that  he  did  not  buy  elsewhere ;  but  ruled  that  "it  was  compe- 
tent and  would  be  admitted  if  offered  to  prove  that  the  sale  was  iden- 
tical with  the  one  testified  to,  or  if  offered  with  other  evidence  to  show 


Sec.  4)  EXAMINATION   OF   WITNESSES  399 

that  the  witness  bought  and  drank  to  such  an  extent  as  to  become  in- 
capable to  testify."  The  defendant  was  convicted,  and  alleged  ex- 
ceptions. 

BiGELOW,  C.  J.  The  evidence  offered  was  clearly  incompetent  for 
the  purpose  of  contradicting  and  discrediting  the  witness  Tanner.  The 
fact  that  he  bought  intoxicating  liquor  at  another  place  on  the  same 
day  on  which  the  alleged  sale  was  made  to  him  by  the  defendant  was 
irrelevant  and  immaterial  to  the  issue,  and  had  no  tendency  to  prove 
or  disprove  the  guilt  of  the  defendant.  It  therefore  came  within  the 
well  settled  rule  that  evidence  is  inadmissible  to  contradict  the  testi- 
mony of  a  witness  on  an  immaterial  fact,  although  such  fact  may 
have  been  drawn  out  by  the  examination  in  chief.  1  Greenl.  Ev.  §  449 ; 
Commonwealth  v.  Buzzell,  16  Pick.  157,  158. 

The  purposes  for  which  the  evidence  was  competent  were  correctly 
stated  by  the  court  at  the  trial,  and  the  defendant  had  an  opportunity 
to  introduce  it  with  a  limitation  as  to  its  effect  which  was  legitimate 
and  appropriate.  It  was  certainly  competent  for  the  defendant  to  show 
that  the  witness  had  been  drinking  to  such  excess  as  to  impair  his 
ability  to  see  and  understand  what  was  passing  before  him  at  the  time, 
and  to  recollect  it  afterwards,  so  as  to  testify  intelligibly  and  with 
accuracy.  To  this  extent,  he  was  permitted  by  the  court  to  offer  evi- 
dence. We  do  not  understand  that  the  ruling  of  the  court  confined 
the  defendant  to  proof  of  total  incapacity  in  the  witness  to  testify  to 
the  facts  which  he  was  offered  to  prove;  but  it  was  left  open  to  him 
to  show  either  total  or  partial  intoxication,  as  tending  to  prove  the 
witness  to  be  unworthy  of  credit  in  stating  facts  which  occurred  when 
he  was  in  such  a  condition.  This  ruling  imposed  no  unreasonable 
burden  on  the  defendant. 

Exceptions  overruled.'^  ^ 


EAST  TENNESSEE,  V.  &  G.  RY.  CO.  v.  DANIEL. 

(Supreme  Court  of  Georgia,  1893.    91  Ga.  768,  18  S.  E.  22.) 

Simmons,  J.''^  Daniel  sued  the  railway  company  for  damages  on 
account  of  the  killing  of  his  mule.  The  defendant  denied  that  the 
mule  was  killed  by  its  train.  The  evidence  tending  to  prove  that  it 
was  killed  by  the  defendant's  train  was  altogether  circumstantial  and 
presumptive,  except  that  of  one  Lofton,  who  testified  that  he  saw  the 
mule  when  it  was  struck  by  the  train  and  knocked  from  the  track. 
Upon  his  cross-examination  he  was  interrogated  as  to  where  he  lived, 
what  his  business  was,  and  why  he  happened  to  be  present  at  the  time 

71  That  the  condition  of  the  witness  may  be  shown  to  affect  the  value  of  bis 
statements,  see  Mace  v.  Reed,  89  Wis.  440,  62  N.  W.  186  (1895) ;  State  v.  Col- 
lins, 115  N.  C.  722,  20  S.  E.  452  (1894);  People  v.  Webster,  139  N.  Y.  73,  34 
N.  E.  730  (1893). 

7  2  Part  of  opinion  omitted. 


iOO  WITNESSES  (Ch.  2 

of  the  killing  of  the  mule.  In  answer  to  these  questions  he  stated, 
among  other  things,  as  corroborative  of  what  he  had  testified  as  to  his 
presence  at  the  time  of  the  injury,  that  he  left  home,  and  went  to 
town,  for  the  purpose  of  purchasing  some  tobacco ;  that  he  went  to 
Mr.  Copeland's  store,  and  purchased  it  on  credit,  and  on  his  way  home 
he  saw  the  accident.  The  defendant  proposed  to  prove  by  Copeland 
that  Lofton  did  not  go  to  his  store  and  purchase  tobacco  at  the  time 
referred  to.  This  testimony  was  excluded  by  the  court,  and  its  ex- 
clusion was  made  one  of  the  grounds  of  the  defendant's  motion  for  a 
new  trial. 

While  the  fact  which  the  witness  proposed  to  prove  by  Copeland 
was  not  directly  material  on  the  circumstances  of  the  killing,  it  was  in- 
directly material,  because  it  contradicted  the  witness  as  to  the  train 
of  events  which  led  him  to  be  present,  and  thus  tended  to  discredit 
him  as  to  the  fact  of  his  presence.  If  testimony  had  been  offered  by 
the  defendant  to  the  effect  that  this  witness  was  not  present  at  the 
killing;  that  he  was  not  in  town,  or  had  not  left  home,  that  day, — it 
is  clear  that  no  valid  objection  could  have  been  made  to  it.  And  when 
the  witness  undertook  to  corroborate  his  story,  and  show  his  presence 
at  the  killing,  by  stating  all  his  movements  during  the  morning  of  the 
killing,  and  that  his  going  to  Mr.  Copeland's  store  to  buy  tobacco  had 
led  him  to  be  present,  we  think  it  was  proper  for  the  defendant  to 
disprove  the  statement  of  the  witness  on  this  point.  Although  it  was 
a  collateral  issue,  it  was  a  matter  affecting  his  credit,  and  perjury  could 
be  assigned  on  it.  Bishop  says:  "The  credit  of  a  witness  is  always 
an  element  adapted  to  vary  the  result  of  the  trial  of  a  fact.  There- 
fore, it  is  a  collateral  issue  therein.  And  it  is  perjury  to  swear  cor- 
ruptly and  falsely  to  anything  affecting  such  credit  as  that  he  has  not 
made  a  specified  statement  material  in  the  case;  that  he  has  not  ex- 
pressed hostility  to  the  defendant;  that  he  has  never  been  in  prison." 
2  Bish.  Crim.  Law,  (8th  Ed.)  §  1032.  And  again:  "Where  the  evi- 
dence is  simply  to  explain  how  the  witness  knew  the  thing  he  states, 
as  where,  testifying  to  an  alibi,  he  mentions  the  party's  residence  and 
habits  to  show  he  could  not  be  mistaken  on  the  main  point,  since  this 
incidental  matter  may  incline  the  jury  more  to  credit  the  substantial, 
it  will  sustain  a  conviction  for  perjury,  if  false."     Id.  §  1037.    *    *    * 

Judgment  reversed.^" 

T3  In  Scott  V.  U.  S.,  172  U.  S.  343,  19  Sup.  Ct.  269,  43  L.  Ed.  471  (1899), 
where  the  defendant  undertook  to  explain  the  presence  of  certain  marked 
bills  in  his  pocket,  by  saying  that  they  must  have  been  put  tliere  by  his 
enemies,  and  on  cross-examination  named  two  persons  as  hostile  to  him,  it 
was  held  proper  to  show  that  such  perscjus  were  not  in  fact  unfriendly  to  him. 
Rut  see  Chicago  City  Ky.  Co.  v.  Allen,  l(i9  111.  2S7,  48  N.  K.  414  (1^97).  where 
a  witness  explained  his  presence  by  saying  that  he  had  just  voted  at  a  cer- 
tain polling  place,  and  It  was  held  that  the  adverse  party  was  not  entitled  to 
show  that  his  residence  was  not  in  that  precinct. 


Sec.  4)  EXAMINATION   OF  WITNESSES  401 

STATE  V.  TAYLOR. 
(Supreme  Court  of  Missouri,  1889.     98  Mo.  240,  11  S.  W.  570.) 

Defendant  was  convicted  on  a  charge  of  assault  with  intent  to  kill, 
and  appealed,  assigning  a  number  of  errors. 

Brace,  J.^*  *  *  *  3  After  the  defendant  had  testified  in  his 
own  behalf,  the  state  was  permitted,  over  the  objection  of  the  de- 
fendant, to  introduce  in  evidence  the  original  record  of  defendant's 
conviction  of  the  violation  of  a  city  ordinance  in  frequenting  a  bawdy- 
house.  On  the  trial  of  one  for  a  criminal  offense,  it  is  not  permissible 
to  show  in  evidence  that  the  defendant  has  been  guilty  of  another  and 
independent  crime,  totally  disconnected  from  the  one  for  which  he  is 
on  trial.  When,  however,  the  defendant  goes  upon  the  stand  as  a 
witness  in  his  own  behalf,  his  credibility  may  be  impeached  to  the  same 
extent,  and  in  the  same  manner,  as  any  other  witness,  except  that  he 
cannot  be  cross-examined  as  to  any  matter  not  referred  to  by  him  in 
chief.  State  v.  Bulla,  89  Mo.  595,  1  S.  W.  764;  State  v.  Palmer, 
88  Mo.  568;  State  v.  CUnton,  67  Mo.  381,  29  Am.  Rep.  506.  Under 
the  statute,  prior  to  the  Revision  of  1879,  persons  convicted  of  arson, 
burglary,  robbery,  or  larceny  in  any  degree,  or  any  felony,  were  de- 
clared incompetent  to  be  sworn  as  a  witness.  Gen.  St.  1865,  p.  791, 
§  66.  This  disqualification  was  omitted  from  the  Revision  of  1879, 
and  since  conviction  of  an  infamous  crime  did  not  render  a  witness 
incompetent ;  but  in  two  cases  that  have  come  to  this  court  it  has  been 
held  that  such  conviction  (for  larceny)  might  be  given  in  evidence  to 
affect  the  credibility  of  the  witness.  State  v.  Kelsoe,  76  Mo.  507; 
State  V.  Loehr,  93  Mo.  103,  5  S.  W.  696. 

These  cases,  however,  are  not  authority  for  the  introduction  of  evi- 
dence of  a  conviction  of  a  mere  misdemeanor,  not  infamous  at  com- 
mon law  or  ever  declared  to  be  so  by  statute.  The  general  moral 
character  of  one  who  has  been  convicted  of  an  infamous  crime  may 
well  be  considered  so  degraded  as  that  but  little  credit  ought  to  be 
given  to  his  testimony,  but  it  is  not  necessarily  so  of  one  who  has  been 
convicted  of  a  mere  misdemeanor,  or  the  violation  of  a  city  ordinance. 
That  conviction  for  such  offenses  cannot  be  given  in  evidence  to  mi- 
peach  the  credibility  of  a  witness  has  been  held  by  the  courts  of  other 
states,  in  which  the  disqualification  to  testify  arising  from  the  con- 
viction of  an  infamous  offense  has  been  removed  expressly  by  stat- 
ute, but  provision  made  that  such  conviction  might  be  shown  in  or- 
der to  affect  credibility,  (Coble  v.  State,  31  Ohio  St.  100;  Glenn  v. 
Clore,  42  Ind.  60;)  and  it  is  not  perceived  why  the  same  conclusion 
should  not  be  reached  here,  where  the  admissibility  of  such  evidence 
has  been  reached  by  construction.     By  a  long  line  of  decisions  in  tliis 

T4  Part  of  opinion  omitted. 
HiNT.Ev.— 26 


402  WITNESSES  (Ch.  2 

state,  it  is  established  that  evidence  of  bad  general  moral  character 
may  be  given  in  impeachment  of  a  witness.  This  rule  is  invariably 
coupled,  however,  with  the  qualification  that  single  and  particular  in- 
stances of  moral  delinquency  cannot  be  shown.  State  v.  Shields,  13 
Mo.  236,  53  Am.  Dec.  147;  Seymour  v.  Farrell,  51  Mo.  95;  State 
V.  Hamilton,  55  Mo.  520;  State  v.  Breeden,  58  Mo.  507;  State  v. 
Clinton,  supra;  State  v.  Miller,  71  Mo.  590;  State  v.  Grant,  79  Mo. 
133,  49  Am.  Rep.  218;  State  v.  Bulla,  89  Mo.  595,  1  S.  W.  764.  Con- 
viction of  an  infamous  crime  tends  to  show  a  depraved  and  corrupt 
nature,  a  bad  general  moral  character.  Conviction  of  a  penal  offense, 
not  infamous,  may  be  consistent  with  a  character  generally  good  or 
bad.  The  former  is  admissible  in  evidence ;  the  latter  not,  in  im- 
peachment of  a  witness'  credit.  The  court  erred  in  not  sustaining  the 
defendant's  objection  to  the  introduction  of  the  record  of  his  con- 
viction of  a  violation  of  the  city  ordinance.  This  conclusion  renders 
it  unnecessary  to  consider  the  error  assigned  on  the  refusal  of  the 
court  to  permit  the  defendant  to  introduce  the  pardon  of  the  mayor 
for  the  offense.  *  *  * 
Reversed." 


MAWSON  v.  HARTSINK. 
(Nisi  Prius,  1802.     4  Esp.,  102.) 

Assumpsit  against  the  defendants,  on  two  bills  of  exchange  by  the 
plaintiff',  as  indorsee  of  the  defendants,  who  had  been  partners  in  a 
bank,  called  the  Security  Bank. 

One  of  the  defendants,  Playfair,  let  judgment  go  by  default;  the 
two  others  pleaded  bankruptcy,  having  obtained  their  certificates. 

Their  certificates  were  impeached  on  the  grounds  of  the  two  de- 
fendants having  been  guilty  of  concealment;  having  lost  money  by 
gaming  in  the  stocks ;  and  that  money  had  been  given  to  induce  credi- 
tors to  sign  their  certificates. 

The  facts,  upon  the  part  of  the  plaintiff  in  impeaching  the  certificates, 
were  proved  by  a  witness  of  the  name  of  Stanley  Leathes. 

The  defendants  proposed  to  impeach  the  credit  of  this  witness,  as 
a  person  of  infamous  character,  and  not  entitled  to  credit 

7  5  Holt,  C.  J.,  in  Kex  v.  Warden  of  the  Fleet,  12  Mod.  337  (1700):  "And  in 
respect  to  a  person  wlio  had  been  burnt  in  the  hand,  if  it  were  for  man- 
slaughter, and  afterwards  pardoned,  it  were  no  objection  to  ids  credit,  for 
it  was  an  accident  wliich  did  not  denote  an  ill  habit  of  mind;  but  secus  if  it 
were  for  stealni;,',  for  that  would  be  a  Ki'cat  objection  to  Ins  credit,  even  after 
pardon:  but  the  record  of  conviction  ought  to  be  produced,  wliich  here  they 
had  not." 

Under  tlie  present  statute  in  Missouri,  conviction  of  any  offen.se  appears  to 
be  ndiidttr-d  for  this  pnriiose.  State  v.  lilitz,  171  Mo.  5:50,  71  S.  W.  1027 
(1002;.  r.iit  not  a  conviction  for  a  viol;ition  of  a  municipal  ordinance.  State 
V.  MiJls,  li72  Mo.  TjliO,  I'M  H.  W.  l.'U   (i:)17j. 


5eC.  4)  EXAMINATION   OP   WITNESSES  403 

The  first  witness  was  a  person  of  the  name  of  F.  Reeves,  the  chief 
clerk  of  tlie  office  at  Bow  street. 

He  was  asked  as  to  his  knowledge  of  Leathes;  and  whether  he 
would  believe  him  on  oath. 

He  said,  he  had  been  before  the  Justices  at  Bow  street ;  and  from 
what  passed  there,  he  thought  him  a  person  whom  he  should  be  very 
unwilling  to  believe. 

Lord  EllEnborough  interfered,  and  said:  He  could  not  hold 
this  to  be  evidence.  The  transaction  was  ex  parte;  it  was  upon  a 
partial  adduction  of  evidence  on  a  charge  against  him  at  a  public  office, 
from  whence  he  had  received  an  unfavourable  opinion  of  Leathes,  from 
a  story  told  without  an  oath.  If  the  witness  derived  his  information 
from  any  particular  source,  falling  within  his  own  knowledge,  it  might 
be  otherwise. 

Garrow  then  asked.  Whether,  in  consequence  of  what  passed  at 
the  public  office,  he  had  made  particular  enquiries  as  to  the  witness's 
general  character? 

Lord  EllEnborough.  That  cannot  be  evidence.  That  informa- 
tion must  be  from  persons  not  on  their  oaths;  perhaps  not  credible. 
If  this  was  allowed,  when  it  was  known  that  a  witness  was  likely  to  be 
called,  it  would  be  possible  for  the  opposite  party  to  send  round  to 
persons  who  had  prejudices  against  him,  and  from  thence  to  form  an 
opinion,  which  was  afterwards  to  be  told  in  court,  to  destroy  his 
credit. 

Garrow  then  put  his  question  in  this  way:  "Have  you  the  means 
of  knowing  w^hat  the  general  character  of  this  witness  was?  and  from 
such  knowledge  of  his  general  character,  would  you  believe  him  on 

his  oath?" 

Lord  Ellenborough  said:  The  question  might  be  put  in  that 
way,  as  it  would  then  be  open  for  the  opposite  side  to  ask,  as  to  the 
means  of  knowing  the  witness's  character;  so  that  it  could  be  judged 
of  what  degree  of  credit  was  due  to  the  assertion,  from  the  means 
that  the  witness  then  called,  had  of  informing  himself  and  forming 
his  judgment. 

Verdict  for  the  plaintiff.'^ « 

7  8  On  the  trial  of  O'Coiglev  at  bar  on  a  charge  of  high  treason,  27  How- 
ell's State  Trials,  loc.  82  (1798),  the  defense  called  the  Earl  of  Moira,  to  im- 
peach a  witness  named  Button  who  had  testified  for  the  prosecution: 

"Mr.  Dallas:  Does  vour  lordship  know  a  person  of  the  name  of  Dutton,  a 
quartermaster  in  the  artillery?    A.  I  have  heard  of  him,  I  do  not  know  him. 

"Does  your  lordship  know  what  is  his  general  character? 

"Mr.  Garrow:  His  lordship  says  that  all  he  knows  of  Dutton's  character 
is  from  hearsay.  ,.         ,.„ 

"Mr.  Dallas:  I  apprehend,  that  what  Mr.  Garrow  states  as  a  disqualifica- 
tion, upon  the  part  of  the  noble  earl,  to  give  such  evidence,  is  by  no  means 
so,  when  it  comes  to  be  accurately  stated. 

"Mr.  Garrow:  The  constant  practice,  where  character  has  been  inquired 
into,  has  been  to  put  the  question  thus:  Are  you  acquainted  with  surh  a 
person?  From  your  acquaintance  with  him,  what  is  his  general  character? 
But  I  never  heard  that  when  a  witness  says,  I  do  not  know  the  person,  but 


404  WITNESSES  (Ch.  2 

KIMMEL  V.  KIMMEL. 

(Supreme  Court  of  Pennsylvania,  1S17.    3  Serg.  &  R.  336.  8  Am.  Dec.  655.) 

Error  to  the  Court  of  Common  Pleas  of  Somerset  county,  in  which 
a  bill  of  exceptions  was  returned. 

To  impeach  the  character  of  Peter  Kimmel,  a  subscribing  witness 
to  the  note  on  which  the  suit  was  brought,  Jonathan  Boyd  was  called, 
who  testified,  "that  he  had  known  Peter  Kimmel  for  eighteen  or  twen- 
ty years;  that  he  had  lived  at  one  time  within  four  miles  of  him; 
that  he  had  bought  goods  from  him,  and  paid  him,  and  that  he  had  no 
knowledge  of  his  general  character  but  by  report."  The  defendant 
then  proposed  to  ask  the  witness  the  following  question,  "What  is  the 
general  reputation  of  Peter  Kimmel,  in  the  county  of  Somerset,  as  a 
man  of  truth?"  This  question  was  objected  to  on  the  ground  that 
the  witness  was  incompetent  to  speak  of  Peter  Kimmel's  general  char- 
acter, because  he  professed  to  know  nothing  on  the  subject  of  his  own 
knowledge ;  all  his  information  having  been  derived  from  others  ;  and 
that  a  witness  must  be  able,  from  what  he  himself  knows  of  a  person's 

have  heard  of  him,  that  then  it  was  asked,  what  have  you  heard  of  his 
reputation. 

"Mr.  Dallas:  I  admit  that  hearsay  would  not  be  evidence  of  any  particu- 
lar fact.  But  Mr.  Garrow  seems  to  have  forgotten,  that  not  long  since  he 
him-elf  stated  that  character  was  not  fact,  but  a  conclusion  to  be  drawn 
from  a  great  number  of  facts,  which  might  have  happened  in  a  very  long  or 
a  short  life.  Character,  in  my  estimation  of  it,  is  no  more  than  the  reputa- 
tion which  a  man  generally  bears  among  those  to  whom  he  is  known;  when, 
therefore,  a  witness  is  asked  with  respect  to  the  character  of  any  particular 
person,  the  verv  question  shows  that  it  is  not  confined  to  the  fact ;  but  that 
it  goes  bevond'it;  because  he  is  not  asked,  from  his  knowledge  of  the  per- 
son, would  he  believe  him,  but  whether,  from  his  knowledge  of  the  character 
of  that  person,  he  would  believe  him.  If  character  is  therefore  no  more 
than  the  general  opinion  which  is  entertained  of  a  person,  by  those  to  whom 
he  is  well  known,  nothing  can  be  more  clear  than  that  it  is  the  general  es- 
timation in  which  he  stands— that  general  estimation  to  be  collected  from  the 
course  of  his  general  conversation ;  I  take  it  to  be  perfectly  clear,  that  it  is 
no  objection  in  this  case  to  an  account  of  character,  to  say  that  it  amounts 
only  to  hearsay :  because,  when  one  man  gives  the  character  of  another,  it 
must  be  that  which  he  has  heard  from  others,  for  it  extends  beyond  his  own 
knowledge,  and  the  question  is  generally  put  to  an  extent  beyond  his  knowl- 
L'dge.  Upon  these  grounds,  I  submit  that  I  am  entitled  to  ask  the  noble  eai'l 
what  is  the  general  character  which  this  man  bears. 

"Mr.  Justice  Duller:  Did  you  ever  hear  that  asked  when  the  witness  said 
he  knew  nothing  aI)out  the  person?    • 

"Mr.  Justice  Iloath:     It  must  be  founded  in  personal  knowledge. 

'Mr.  Justice  IJuller:  I  must  tell  the  jury  that  the  noble  lord  .says  this 
witness  is  not  to  be  believed  upon  his  oath,  but  he  knows  nothing  of  him. 
Then  thf-y  have  a  right,  on  the  other  side,  to  ask  to  particular  fa(  ts:— then 
my  lord  Molra  give  us  an  instance.  Suppose  his  lordship  mcnlions  his  ap- 
pearance at  some  court  of  justice  in  Ireland;  that  the  evidence  he  gave 
then;  was  not  believed — the  next  question  then  is,  were  you  present,  did  you 
hear  the  trial,  my  lordV    No.     Do  you  know  that  he  swore  it?     No. 

"Mr.  Justice  Lawrence:  The  question  is  always  put  in  this  way — Do  you 
know  the  witness?    Yes.  Then,  what  do  you  know  of  him? 

"Mr.  Dallas:     It  is  my  duty  to  acquiesce;    I  have  submitted  my  reasons." 


Sec.  4)  EXAMINATION   OF   WITNESSES  405 

character,  to  state  what  it  is,  otherwise  his  evidence  will  be  secondary 
and  inadmissible.  And  of  this  opinion  was  the  Court  below,  who  sus- 
tained the  objection,  and  the  defendant  tendered  a  bill  of  exceptions. 
Gibson,  J.  Although  the  very  nice  and  subtle  distinction  taken  be- 
low, cannot  in  this  case  be  sustained,  I  admit  there  may  be  cases  where 
even  evidence  of  character  may  be  excluded,  on  account  of  its  being 
hearsay,  and  not  the  best  of  which  the  nature  of  the  case  is  susceptible ; 
as  where  the  witness  may  have  never  been  in  the  neighborhood  in 
which  the  person,  whose  character  is  to  be  affected,  resides,  and 
where  the  former  may,  in  truth,  have  no  other  knowledge  of  the  ac- 
tual state  of  the  reputation  or  common  report  of  such  neighborhood 
than  what  he  has  gleaned  from  a  single  individual.  The  witness  shall 
not  be  permitted  to  say  he  was  told  that  the  person  had  either  a  good 
or  bad  character  in  his  own  neighborhood.  But  that  is  a  very  differ- 
ent thing  from  a  knowledge  of  common  report  acquired,  as  in  this  case, 
from  common  report  itself.  That  knowledge  of  character  which  is 
gained  from  report,  cannot  be  considered  as  secondary;  for  report 
constitutes  character,  and  is,  itself,  the  very  thing  of  which  the  wit- 
ness is  called  to  speak.  A  competent  knowledge  of  the  subject  can, 
indeed,  be  acquired  through  no  other  medium,  for  particular  instances 
of,  want  of  veracity,  or  private  belief  of  destitution  of  moral  principle, 
arising  from  particular  instances  of  misconduct,  are  always  excluded. 
A  personal  acquaintance  with  the  individual  to  be  affected,  is  unneces- 
sary ;  but  it  will  be  enough  if  the  witness  be  acquainted  with  his  char- 
acter; which  is  a  term  convertible  with  common  report.  The  witness 
is  to  give  not  his  own  judgment  of  the  matter,  but  the  aggregate  result 
of  at  least  a  majority  of  the  voices  he  has  heard;  or  in  other  words, 
(for  after  all  there  is,  perhaps,  no  more  plain  or  practical  exposition 
of  the  matter),  he  must  state  what  the  common  report  is  among  those 
who  have  tlie  best  opportunity  of  judging  of  the  habits  and  in- 
tegrity of  the  person  whose  character  is  under  consideration.  There 
is  danger  from  the  proneness,  so  often  observable  in  witnesses  to  sub- 
stitute their  own  opinion  for  that  of  the  public,  whose  judgment  can- 
not be  so  readily  warped  by  prejudice  or  feeling  as  that  of  an  individ- 
ual; and  hence  the  policy  of  not  requiring  any  intimate  degree  of 
knowledge  respecting  the  person  himself,  or  of  bringing  the  witness 
too  close  to  the  scene.  The  reputation  of  the  neighborhood  is  the 
only  tiling  that  is  competent ;  and  if  the  witness  has  acquired  a  knowl- 
edge of  it  by  the  report  of  the  neighborhood,  he  is  exactly  qualified 
to  be  heard. 

Duncan,  J.  The  bill  of  exceptions  presents  this  case  for  the  con- 
sideration of  the  Court.  Peter  Kimmel  has  been  examined  as  a  wit- 
ness on  behalf  of  George  Kimmel,  the  defendant  in  error.  In  order 
to  affect  his  credibility,  one  Jonathan  Boyd  was  on  examination,  on 
the  part  of  the  plaintiff  in  error,  who  swore  as  follows:  "I  have 
known  Peter  Kimmel  for  eighteen  or  twenty  years.  I  lived  at  one 
time  within  four  miles  of  him.     I  have  bought  goods  from  him,  and 


406  WITNESSES  (Ch.  2 

paid  him.    I  have  no  knowledge  of  his  general  character  except  from 
report." 

This  question  was  then  offered  to  be  put  to  the  witness  on  the  part 
of  the  plaintiff  in  error.  "What  is  the  general  reputation  of  Peter 
Kimmel,  in  the  county  of  Somerset,  as  a  man  of  truth  ?"  The  Court, 
on  objection  to  this  question  by  the  defendant  in  efror,-  sustained  the 
exception,  and  overruled  the  testimony.  This  is  a  question  of  impor- 
tance ;  not  from  any  difficulty  in  its  solution,  but  because  it  is  one  of 
daily  occurrence  in  the  trial  of  causes.  The  adherence  to  rules  of 
evidence  is  said  to  be  one  of  the  first  duties  of  a  Judge.  They  are  fixe;l 
and  certain,  as  rules  of  property,  not  arbitrary  or  discretionary.  Facts 
are  to  be  proved  by  positive  testimony,  or  by  circumstances  from 
which  a  jury  may  fairly  deduce  them.  Character  by  reputation.  Char- 
acter and  reputation  are  the  same.''^  The  reputation  which  a  man 
has  in  society  is  his  character.  Where,  in  judicial  proceedings,  char- 
acter is  made  a  part  of  the  inquiry,  it  never  can  be  proved  by  the 
proof  of  particular  facts.  A  man  who  is  called  on  to  give  testimony, 
is  always  subjected  to  the  investigation  of  his  general  character.  This 
the  law  supposes  he  is  ever  prepared  to  defend.  But  miserable,  indeed, 
would  be  the  situation  of  a  witness,  if  every  transaction  of  his  life 
was  open  to  inquiry.  No  man  could  be  prepared  to  repel  every  pos- 
sible charge,  that  might  be  made  against  him,  or  refute,  the  imputa- 
tion of  every  crime,  that  any  man  might  be  disposed  to  make.  He  is 
not  on  his  trial.  His  general  character  is  the  test,  by  which  his  credit 
is  to  be  adjudged. 

A  witness  called  on  to  impeach  the  credit  of  another,  is  never  per- 
mitted to  speak  of  his  knowledge  of  particular  facts  from  which  he 
draws  an  opinion  of  the  witness  examined.  All  who  are  conversant 
in  courts  of  justice  must  have  observed  the  reluctance  with  which  wit- 
nesses testify  with  regard  to  the  character  of  other  witnesses.  Men 
of  the  strictest  veracity,  and  acting  under  the  strongest  impressions 
of  the  sacred  obligation  of  an  oath,  to  testify  the  whole  truth,  too  fre- 
quently endeavor  to  evade  a  direct  answer.  How  often  do  they,  in  the 
first  instance,  state,  I  know  nothing  of  my  own  knowledge  but  from 
report?  How  often  does  the  inquiry  end  in  the  very  question  put  to 
this  witness, — "What  is  the  general  reputation  of  the  witness  exam- 
ined, as  to  truth,  in  the  county  in  which  he  lives  ?"  If  a  witness  wa.« 
not  permitted  to  state  the  general  reputation,  there  must  be  an  end  of 
all  inquiry  into  character.  Particular  facts  cannot  be  given  in  evidence. 
Opinion  will  not  be  evidence;  for  if  it  were,  no  witness  would  be 
safe  from  the  shafts  of  calumny.  No  man  is  to  be  discredited  by  the 
mere  opinion  of  another;  few  men  live  whom  some  do  not  think  ill  of. 
But  it  is  said,  the  witness  must  speak  of  his  own  knowledge.  So  he 
must.  But  what  is  this  knowledge?  Not  a  personal,  individual  knowl- 
edge of  facts.     He  knows,  by  reputation,  what  is  the  character  of  the 

T7  Compare  Com.  v.  Slcwurt,  1  Serg.  &  U.  (Pa.)  342  (1815),  post,  p.  431. 


Sec.  4)  EXAMINATION  OF   WITNESSES  407 

man.  Again,  it  is  said,  that  in  this  case,  the  person  called  to  impeach 
the  character  of  the  witness  examined,  said  he  had  his  knowledge  of 
him  but  from  report.  General  report  is  general  reputation.  General 
reputation  is  general  character.  But  the  witness  had  known  the  man 
from  eighteen  to  twenty  years;  lived  at  one  time  within  four  miles 
of  him ;  had  dealings ;  testified  his  opportunities  of  having  acquired 
a  knowledge  of  his  general  character  by  a  long  acquaintance  with  him. 
None  so  proper,  then,  to  bear  testimony  as  to  his  character.  No  ques- 
tion could  be  put,  the  answer  to  which  would  so  clearly  establish  his 
character,  his  reputation  for  truth,  or  otherwise,  as  the  one  which  the 
court  decided  could  not  be  put.  This  Court  would,  in  a  case  which 
they  consider  so  clear,  have,  without  any  observations,  directed  the 
reversal  of  the  judgment;  but  as  the  counsel  for  the  defendant  in  er- 
ror, not  from  any  doubts  in  his  own  mind,  but  from  a  desire  that 
the  opinion  of  the  Court,  and  the  reasons  of  the  opinion,  should  be 
given,  to  prevent  misapprehension  on  a  subject  which  so  frequently 
must  occur,  has  requested  the  Court  to  give  not  only  the  opinion,  but 
the  reasons  of  it,  according  to  the  provisions  of  the  law.  This  is  now 
done.'^ 

The    judgment   must   be   reversed,   and   a   venire   facias   de   novo 
awarded. 


COMMONWEALTH  v.  LAWLER. 

(Supreme  Judicial  Court  of  Massachusetts,  1866.     12  Allen,  585.) 

Indictment  for  being  a  common  seller,  and  for  single  sales,  of  in- 
toxicating liquor. 

At  the  trial  in  the  superior  court,  before  Morton,  J.,  the  Common- 
wealth relied  on  the  testimony  of  Patrick  Connell.  In  order  to  im- 
peach him,  the  defendant  called  a  witness  and  asked  him,  "What  is 
the  general  reputation  of  Connell  for  truth  and  veracity?''  The  wit- 
ness replied,  'T  have  not  heard  it  talked  of  a  great  deal."  The  de- 
fendant then  asked  the  several  questions  following;  but  all  were  ex- 
cluded by  the  judge.  "Have  you  heard  his  character  for  truth  and 
veracity  called  in  question?  If  you  have  heard  his  character  for  truth 
and  veracity  called  in  question,  state  what  the  common  speech  of  peo- 
ple is  as  to  his  character  for  truth  and  veracity.  What  is  the  general 
reputation  of  Connell  for  truth  and  veracity,  among  those  who  speak 
of  it  at  all?"  The  judge  ruled  that  the  defendant  might  ask  the  wit- 
ness what  was  the  common  speech  of  people  as  to  Connell's  character 
for  truth  and  veracity,  but  that  the  questions  in  the  form  put  by  the 
defendant  were  inadmissible. 

7  8  See  Wetherbee  v.  Norris,  103  Mass.  565  (1870),  approving  the  following 
course  at  the  trial:  "The  judge  required  of  the  defendant  that  each  of  the 
witnesses  should  be  first  asked  this  question,  'Do  you  know  the  reputation  of 
the  plaintiff  for  truth  and  veracity?'  If  the  witness  said  he  did,  he  was  then 
to  be  asked,  'What  was  that  reputation?'  " 


iOS  WITNESSES  (Ch.  2 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged  ex- 
ceptions. 

BiGELOW,  C.  J.  The  defendant  has  no  valid  ground  of  exception 
to  the  ruling  of  the  court.  He  was  permitted  to  put  to  the  witness  the 
proper  inquiry  as  to  the  general  reputation  for  truth  of  the  person 
whose  character  for  veracity  he  sought  to  impeach.  The  questions 
which  were  ruled  out  were  calculated  to  elicit  testimony  to  the  prej- 
udice of  the  witness  offered  by  the  government,  from  a  person  who 
had  no  actual  knowledge  of  his  general  reputation  for  truth.  If  an- 
swered, tliey  might  have  led  to  the  introduction  of  evidence  of  particu- 
lar instances  of  prevarication  by  the  government  witness,  or  of  doubt 
as  to  his  truthfulness  on  some  special  occasion,  without  touching  his 
general  character  for  veracity.  The  rule  is  perfectly  well  settled  that 
the  evidence  must  be  confined  to  the  general  reputation  of  the  witness, 
and  the  court  did  nothing  more  than  hold  the  party  to  a  strict  observ- 
ance of  it,  by  requiring  his  questions  to  be  restricted  to  that  form  of 
inquiry  solely. 

Exceptions  overruled.'^" 


BAKEMAN  v.  ROSE  et  ux. 
(Court  of  Errors  of  New  York,  1837.    18  Wend.  146.) 

Error  from  the  supreme  court.  The  wife  of  Rose,  previous  to  her 
marriage,  brought  an  action  of  assault,  battery,  and  false  imprison- 
ment against  Bakeman,  in  the  Oswego  common  pleas,  and  established 
her  case  by  the  testimony  of  a  female  of  the  name  of  Sally  Holton. 
The  defendant  proved,  by  a  number  of  witnesses,  that  the  character 
of  Sally  Holton  for  truth  and  veracity  was  bad,  and  the  plaintiff,  by 
a  number  of  witnesses,  proved  her  character  for  truth  and  veracity 
to  be  good.  The  defendant  also  offered  to  prove  that  the  reputation  of 
Sally  Holton  was  that  of  a  public  prostitute.  The  plaintiff  objected  to 
the  evidence,  and  the  court  sustained  the  objection. 


80 


7  0  Eakor,  J.,  in  Gifford  v.  People,  148  111.  173,  35  N.  E.  754  (lS9r5):  "It  is 
not  nei-essary,  as  seems  to  have  been  supposed  by  counsel  on  both  sides  in 
this  case,  that  witness  should  have  heard  any  considerable  number  of  the 
nc.'ighhors  of  the  witness  sou,:^'ht  to  be  inipeaclied  or  sustained,  speak  of  liis 
reputation  for  truth  and  veracity.  It  may  very  well  I)e  that  tbe  reputation 
for  truth  and  veracity,  or  chastity,  or  common  honesty  of  a  person  may  be 
known  among  his  neighbors  and  acquaintances  without  having  hoard  it  gen- 
erally discussed.  Indeed,  one  whose  word  passes  current  anioni:  liis  associ- 
ates and  neighbors,  or  who  is  received  and  accepted  by  society  as  a  virtuous 
man  or  woman,  or  whose  honesty  is  not  questioned  in  a  community  In  which 
he  lives  will  ordinarily  excite  no  discussion  or  conuuent,  and  yet  every  per- 
son in  the  community  knows  tliat  be  or  she  is  accepted,  recognized  and  re- 
puted to  be  a  truthful,  virtuous  or  lionest  person." 

See,  also,  opinion  of  CofUhurn,  C.  .1.,  in  Keg.  v.  Rowton,  10  Cox,  25  (18U5). 

«o  Statement  condensed  and  concurring  opinions  omitted. 


Sec.  4)  EXAMINATION   OF   WITNESSES  409 

By  the  Chancellor."     The  first  and  most  important  question  in 
this  case  is,  whether  the  plaintiff  in  error  should  have  been  permitted, 
in  addition  to  the  usual  inquiries  as  to  the  general  character  of  the 
principal  witness  against  him  for  truth  and  veracity,  to  prove  also 
that  she  had  the  general  character  of  a  prostitute.     As  it  is  not  the 
business  of  this  court  to  make  laws,  but  merely  to  declare  what  the 
existing  law  is,  it  is  only  necessary  to  say  that  it  is  perfectly  well  set- 
tled, both  in  this  state  and  in  England,  that  the  general  character  of 
the  witness  alone  can  be  inquired  into  for  the  purpose  of  impeaching 
credibility ;   that  is,  what  is  his  general  character  for  truth  and  verac- 
ity ;   or  whether  his  general  moral  character  is  such  that  he  is  not  en- 
titled to  credit.     But  you  cannot  prove  that  he  has  been  guilty  of  any 
particular  crime,  or  species  of  crimes,  or  immoralities,  or  that  he  has 
the  reputation  of  being  guilty  of  any  particular  class  of  crimes.    You 
cannot  therefore  inquire  whether  the  witness  has  the  general  reputation 
of   being   a    thief,   prostitute,   murderer,    forger,   adulterer,   gambler, 
swindler,  or  the  like ;   although  each  and  every  of  such  offences,  to  a 
greater  or  less  degree,  impairs  the  moral  character  of  the  witness,  and 
tends  to  impeach  his  or  her  veracity.     And  if  a  party  is  not  permit- 
ted to  impeach  the  witness  by  proving  that  he  has  the  general  charac- 
ter of  a  thief  or  a  swindler,  there  can  be  no  good  reason  why  he 
should  be  permitted  to  impeach  the  witness  by  showing  a  general  repu- 
tation of  being  unchaste.     Indeed,  it  would  be  much  safer  for  a  fe- 
male witness  to  permit  the  adverse  party  to  prove  the  fact  that  she 
was  a  common  prostitute,  than  "to  attempt  to  impeach  her  credit  by 
showing  it  by  general  reputation ;    as  there  would  be  some  chance  of 
refuting  the  charge,  if  it  was  false,  in  the  one  case,  when  there  would 
not  be  any  in  the  other.     Instead,  also,  of  allowing  the  chastity  of 
female  witnesses  to  be  drawn  in  question  in  that  manner,  it  would  be 
much  better  to  resort  at  once  to  the  principles  of  the  Persian,  Gentoo 
and  Mussulman  laws,  to  which  we  were  referred  on  the  argument; 
which  do  not  allow  the  testimony  of  any  female  except  in  special  cases, 
where,  from  the  nature  of  the  facts  to  be  proved,  it  is  presumed  no 
male  witness  could  have  been  present. 

The  question  as  to  the  admissibility  of  such  evidence  to  impeach  the 
character  of  a  witness,  was  distinctly  passed  upon  by  the  supreme  court 
6i  this  state,  more  than  twenty  years  since,  in  the  case  of  Jackson  v. 
Lewis,  13  Johns.  504,  and  I  believe  the  correctness  of  that  decision  has 
never  been  doubted  by  the  profession  here.  The  only  case  I  have  been 
able  to  find,  in  the  courts  of  any  of  our  sister  states,  in  which  a  dift'er- 
ent  rule  has  been  attempted  to  be  adopted,  is  that  of  Commonwealth  v. 
Murphy,  14  Mass.  387,  before  the  supreme  court  of  Massachusetts.  A 
very  loose  note  of  tliis  decision  is  stated  by  Mr.  Tyng  on  the  relation  of 
some  other  person ;  and  which,  if  ever  made,  was  virtually  overruled 
by  the  same  court  in  the  subsequent  case  of  Commonwealth  v.  Moore, 

81  Walworth. 


410  WITNESSES  (Ch.  2 

3  Pick.  (]\Iass.)  194.  But  even  in  Murphy's  Case,  if  the  report  be  cor- 
rect, the  party  was  not  permitted  to  give  evidence  of  general  reputation 
of  unchastity.  He  was  allowed  to  prove  the  actual  fact  that  the  wit- 
ness was  a  prostitute,  and  had  been  the  mother  of  several  bastard  chil- 
dren. The  decision,  in  any  view  of  it,  was  wrong,  and  ought  not  to  be 
followed  as  a  precedent  here.  *  *  * 
Affirmed." 


HOOPER  V.  MOORE. 

(Supreme  Court  of  North  Carolina.  1856.     48  N.  C.  428.) 

Detinue  for  slaves,  tried  before  Dick,  J.,  at  the  last  Caswell  Su- 
perior Court. 

The  plaintiff  read  in  evidence  the  deposition  of  one  Martha  Bailey 
as  to  the  title  of  the  slaves  in  question. 

Another  witness  was  offered,  as  to  the  general  character  of  Martha 
Bailey;  and  having  testified  as  to  that,  he  was  asked  by  the  defend- 
ant's counsel  whether,  if  he  was  a  juror,  from  what  he  knew  of  her 
general  character,  he  would  believe  her  on  oath.  The  question  was 
objected  to,  but  allowed  by  the  Court.     Plaintiff  again  excepted. 

Verdict  for  defendant.    Judgment  and  appeal.®^ 

Battle,  J.  *  *  *  The  third  and  last  objection  raises  a  question 
of  practice,  in  relation  to  the  examination  of  witnesses  called  to  im- 
peach the  characters  of  other  witnesses,  which  we  are  not  sorry  to 
have  an  opportunity  of  attempting  to  settle. 

The  question  is,  whether  an  impeaching  witness,  after  he  has  stated 
that  the  character  of  another  witness  is  bad,  can  be  asked  whether, 
from  his  knowledge  of  that  character,  he  would,  if  he  were  a  juror, 
believe  the  witness  upon  his  oath.  We  are  decidedly  of  opinion  that 
such  an  enquiry,  if  permitted,  gives  occasion,  either  to  improper  re- 
plies, or  makes  the  witness  usurp  the  province  of  the  jury,  and  is, 
therefore,  wrong  in  principle,  as  well  as  embarrassing  in  practice.  We 
are  aware  that  the  rule  to  which  we  object  has  the  sanction  of  the 
English  Courts,  and  has  been  referred  to  without  disapprobation  by 
this  Court.  See  State  v.  Boswell,  13  N.  C.  209,  and  the  authorities 
there  cited.  By  reference  to  the  case  just  referred  to,  it  will  be  seen 
that  what  the  Court  said  upon  this  subject  was  not  necessary  to  the 
decision,  and  that  it  was  a  mere  statement  of  what  was  the  English 
practice,  without  much  reflection  whether  the  rule  was  well  or  ill 
founded  in  principle.  Those  who  have  seen  its  application,  must 
have  observed  that  the  replies  of  the  impeaching  witnesses  were  of  ten- 

82  See  opinion  of  Senator  Tracy,  p.  150,  for  a  good  statement  of  the  con- 
trary view. 

In  several  states  had  reputiition  for  chastity  or  honesty  may  he  shown. 
State  V.  Sibley,  l.'Jl  Mo.  .^.''.1,  .*'..''.  S.  W.  1G7  (1895).  For  a  collection  of  the 
cases,  see  note  to  2  Wif,'mor('.  §  92.3. 

«»a  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  4)  EXAMINATION   OF   WITNESSES  411 

er  prompted  by  their  own  opinion  of  the  witness,  than  by  their  knowl- 
edge of  his  general  character,  that  is,  tlie  estimation  in  which  he  was 
held  by  others.  .The  replies,  too,  are  very  apt  to  be  evasive  and  hypo- 
critical. "The  witness  would  believe  him  if  he  were  disinterested,  or 
had  no  feeling  in  the  matter,  but  otherwise,  he  would  not  believe  him." 
These  and  such  like  replies  are  improper,  because  they  do  not  fairly 
meet  the  inquiry,  whether  the  character  of  the  impeached  witness  is 
so  bad  that  he  ought  not  be  believed,  though  testifying  under  the  sanc- 
tion of  an  oath. 

But  the  great  objection  to  the  rule  is,  that  the  impeaching  witness  is 
called  upon  to  do  that  which  belongs  exclusively  to  the  jury.  It  is, 
or  ought  to  be,  their  province  to  pronounce  whether  a  witness  is  to 
be  believed,  and,  consequently,  whether  a  fact  to  which  he  testifies, 
supposing  him  not  to  be  mistaken,  is  proved.  The  character,  whether 
good  or  bad,  of  a  witness,  is  a  fact,  and,  of  course,  as  to  that,  another 
witness  may  testify.  Whether  that  character,  if  bad,  is  so  bad  that  he 
ought  not  to  be  believed,  is  an  opinion  or  conclusion  which  the  law, 
as  a  general  rule,  forbids  a  witness  to  give,  except  in  certain  cases 
where  he  testifies  as  an  expert.  Our  Legislature  has  been  careful  in 
guarding  and  preserving  the  exclusive  province  of  the  jury  to  decide 
upon  questions  of  fact,  by  prohibiting  the  judge  from  giving  an 
"opinion  whether  a  fact  is  fully  or  sufficiently  proved;"  Rev.  Stat, 
ch.  31,  §  136;  Rev.  Code,  ch.  31,  §  130.  We  ought  to  be  equally 
careful  in  settling  rules  of  practice,  to  protect  the  jury  from  an  im- 
proper invasion  of  their  province  by  the  witnesses.  The  evil  arising 
from  such  an  invasion,  is  thus  ably  and  forcibly  set  forth  by  Shep- 
ley,  J.,  in  the  case  of  Phillips  v.  Kingfield,  19  Me.. 375,  36  Am.  Dec. 
760:  "To  permit  the  opinion  of  a  witness  that  other  witnesses  should 
not  be  believed,  to  be  received  and  acted  upon  by  a  jury,  is  to  allow  the 
prejudices,  passions  and  feelings  of  that  witness  to  form,  in  part  at 
least,  the  elements  of  their  judgment.  To  authorize  the  question  to 
be  put,  whether  the  witness  would  believe  another  witness  on  oath, 
although  sustained  by  no  inconsiderable  weight  of  authority,  is  to 
depart  from  sound  principles  and  establish  rules  of  law  respecting  the 
kind  of  testimony  to  be  admitted  for  the  consideration  of  the  jury,  and 
their  duties  in  deciding  upon  it.  It  would,  moreover,  permit  the  in- 
troduction and  indulgence,  in  courts  of  justice,  of  personal  and  party 
hostilities,  and  of  every  unworthy  motive  by  which  man  can  be  actuat- 
ed to  form  the  basis  of  an  opinion  to  be  expressed  to  a  jury  to  influ- 
ence their  decision."  See,  also,  Greenleaf  on  Ev.  §  461.  Our  con- 
clusion is,  that  the  Judge  erred  in  permitting  tlie  question  to  be  put, 
after  it  was  objected  to  by  the  plaintiff. 

Reversed.^* 

84  Accord:  Eastman  v.  Boston  Elevated  R.  Co.,  200  Mass.  412,  S6  N.  E. 
793  (190S). 

The  Supreme  Court  of  Michigan  apparently  follows  the  English  practice 
Janiilton  v.  People,  29  Mich.  184  [1874]),  which  is  indicated  by  the  follow- 


412  WITNESSES  (Ch.  2 

V.  Corroboration  and  Support 
BISHOP  OF  DURHAM  v.  BEAUMONT. 

(At  Nisi  Prius,  1808.     1  Camp.  207.) 

This  was  an  issue  out  of  Cliancery  to  try  whether  previous  to  an 
agreement  being  entered  into  in  the  year  1792,  between  the  present 
Bishop  of  Durham  and  the  late  Sir  Thomas  Blacl-cett,  Baronet,  lessee 
of  certain  lead  mines,  the  9th  part  of  the  ore  dug  from  which  belongs 
to  the  Bishop,  the  agent  of  Sir  Thomas  Blackett,  had  represented  to 
his  lordship,  that  the  sum  of  £925.  was  the  full  annual  value  of  this 
9th  part,  or  what  other  representation  he  had  made  on  the  occasion. 

A  suit  in  equity  being  instituted  to  set  aside  the  agreement,  this  issue 
was  directed,  to  ascertain  whether  the  plaintiflf  had  been  misled  as  to 
the  value  of  his  portion  of  the  ore  by  the  agent  of  the  person  under 
whom  the  defendant  now  enjoys  the  mines,  in  right  of  his  wife.  The 
conversation,  the  import  of  which  was  questioned,  took  place  on  the 
17th  or  18th  of  August,  1791,  between  the  Bishop  and  one  Erasmus 
Blackett,  acting  on  the  behalf  of  Sir  Thomas,  in  the  presence  of  a  Mr. 
Emme,  the  Bishop's  secretary.  The  only  two  witnesses  called,  there- 
fore, were  Mr.  Emme  on  the  one  side,  and  Mr.  E.  Blackett  on  the 
other. 

The  former  swore  that  in  answer  to  a  question  from  the  Bishop, 
Mr.  E.  Blackett  said,  that  the  sum  of  £925.  was  the  full  annual  value 
of  the  9th  part  of  the  ore  raised  from  the  mines  in  question;  while 
this  gentleman  himself  swore,  that  in  answer  to  the  same  question  he 
said,  the  sum  of  £925.  was  a  full  equivalent  for  the  Bishop's  9th  part, 
meaning  that  this  was  as  much  as  the  lessee,  who  was  at  the  expense 
of  working  the  mines,  could  afford  to  pay,  and  more  than  the  Bishop 
could  make,  by  taking  the  ore  in  kind.  The  cause  thus  hanging  upon 
the  testimony  of  these  two  persons. 

The  Attorney'General,  for  the  defendant,  proposed  to  call  witnesses 
to  the  character  of  Mr.  E.  Blackett.  He  contended  that  where  fraud 
and  falsehood  were  imputed  to  a  witness,  there  his  credit  might  be 
supported  by  evidence  to  his  general  character.  And  he  cited  as  in 
point  the  case  of  Doe  ex  dem.  Stephenson  v.  Walker,  4  Esp.  Cas.  50, 
where  the  question  being  upon  the  validity  of  a  will,  and  one  of  the 
attesting  witnesses  having  sworn  that  when  the  will  was  executed,  the 

Ins  stiiteinfnt  by  Martin.  B.,  In  Rog.  v.  Brown,  10  Cox.  c.  c.  4.'j:{  (18G7):  "In 
Taylor  on  Evidence,  §  i;}24.  it  is  said  evidence  may  be  adduced  impeaching  a 
wituess's  character  for  veracity.  But  here  the  evidence  will  be  confined  to 
general  reputation,  and  will  not  be  permitted  as  to  particular  facts.  The 
regular  mode  of  examining  into  the  character  of  the  jterson  in  (piostlon  is  to 
osU  tlie  witness  whether  he  knows  his  general  reputadou  among  his  nelgh- 
bor.s,  what  that  reputation  Is.  and  whether  from  such  knowledge  he  would 
nelipve  him  on  his  oath.'  That  practice  has  always  prevailed  within  my 
recollection." 


Sec.  4)  EXAMINATION   OF   WITNESSES  41?. 

pen  was  put  into  the  testatrix's  hand,  she  being  then  in  a  state  of 
stupid  insensibility,  and  that  in  signing  her  name  her  hand  was  guided 
without  her  knowing  what  she  did,  Lord  Kenyon  admitted  evidence 
to  the  character  of  the  two  other  subscribing  witnesses ;  and  it  bcmg 
sworn  that  they  were  persons  of  great  respectabiHty,  who  were  deemed 
incapable  of  the  misconduct  imputed  to  them,  the  jury  found  a  verdict 
establishing  the  validity  of  the  will.  Here  a  direct  fraud  was  imputed 
to  the  witness,  in  having  stated  the  9th  part  of  the  ore  to  be  greatly 
under  its  value,  and  in  addition  to  that,  he  was  charged  with  perjury 
in  denying  the  false  representation  he  had  formerly  made.  Therefore 
he  came  within  the  rule  laid  down  by  Lord  Kenyon,  and  to  enable  the 
jury  properly  to  appreciate  his  testimony,  an  opportunity  should  be 
given  to  shew  the  character  for  veracity  and  integrity  which  he  had 
always  borne.  For  this  purpose  he  offered  to  call  Mr.  Baron  Wood, 
who  then  sate  on  the  bench  beside  his  lordship. 

The  counsel  on  the  other  side  said,  they  admitted  Mr.  E.  Blackett 
to  be  a  man  of  respectable  character;  they  did  not  impute  perjury  to 
him,  but  only  imperfection  of  memory;  and  as  they  were  prepared 
with  similar  evidence  in  support  of  their  own  witness,  Mr.  Emme,  in 
case  it  had  been  admissible,  they  declined  arguing  the  point  of  law. 

Lord  Ellenborough.  There  is  here  no  case  laid  for  admitting 
evidence  to  character,  I  fully  accede  to  the  doctrine  laid  down  in 
Doe  on  the  demise  of  Stephenson  v.  Walker.«°  There  the  attesting 
witnesses  whose  character  was  disputed  were  dead,  and  it  was  prop- 
erly held  that  the  party  claiming  under  the  will  should  have  the  same 
advantage  as  if  they  had  been  alive.  In  that  case  they  must  have 
been  personally  adduced  as  witnesses,  when  their  character  would 
have  appeared  on  their  cross-examination,  and  being  dead,  justice  re- 
quired that  an  opportunity  should  be  given  to  shew  what  credit  was 
to  be  attached  to  their  attestation  of  the  will.  In  like  manner,  the  Court 
of  King's  Bench  held  in  the  time  of  Lord  Mansfield,  that  evidence 
of  the  conduct  of  deceased  witnesses  might  be  received,  to  attract 
credit  to  their  testimony,  or  to  destroy  its  effect.  So  in  a  case  upon 
the  northern  circuit,  in  which  I  was  myself  counsel  for  the  defend- 
ant, and  which  turned  upon  the  validity  of  a  false  instrument,  (wheth- 
er a  deed  or  a  will  I  forget,)  Mr.  Justice  Heath  admitted  as  evidence, 
a  confession  of  the  forgery  which  compunction  had  drawn  from  one 
of  the  attesting  witnesses  in  extremis.  This  confession  only  sup- 
plied the  place  of  what  might  have  been  obtained  from  cross-exami- 
nation, had  the  witness  survived ;  and  the  propriety  of  admitting  it  was 
never  questioned.  But  here  neither  is  the  witness  dead,  nor  is  there 
any  shade  cast  over  his  character.  Therefore  in  analogy  to  the  case 
of  Doe  V.  Walker,  or  of  any  other  case  ever  determined  in  Westmin- 
ster-Hall, there  is  no  colour  or  pretence  for  admitting  evidence  to 

88  Accord:     Provls  v.  Reed,  5  Bingham,  435  (1S29). 


414  WITNESSES  (Ch.  2 

the  character  of  the  witness  who  has  just  been  examined  on  the  part 
of  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff,  estabUshing  the  fact, 
that  £925.  had  been  represented  as  the  full  annual  value  of  the  Bish- 
op's part  of  the  lead  ore. 

Verdict  for  plaintiff.*' 


REX  V.  CLARKE. 

(Nisi  Prius,  1817.    2  Starkie,  241.) 

This  was  an  indictment  against  the  defendant  for  an  assault  upon 
Mrs.  Webb,  with  intent  to  commit  a  rape. 

Upon  the  cross-examination  of  the  prosecutrix,  she  was  asked, 
whether  she  had  not  been  sent  twice  to  the  House  of  Correction,  upon 
charges  of  having  stolen  money  from  her  master  several  years  ago. 
She  admitted  that  she  had,  and  stated,  that  she  had  since  been  admitted 
into  the  Refuge  for  the  Destitute,  and  had  remained  there  nearly  two 
years ;  and  that  she  had,  on  going  away,  received  a  box  of  clothes  and 
a  guinea,  as  a  reward  for  her  good  behaviour. 

On  the  part  of  the  prosecution,  the  superintendent  of  the  establish- 
ment, called  the  Refuge  for  the  Destitute,  was  called  and  examined 
as  to  the  conduct  of  the  prosecutrix  while  she  remained  in  that  asylum, 
and  as  to  the  practice  of  conferring  rewards  for  good  conduct. 

Gurney,  for  the  defendant,  objected,  that  evidence  of  the  witness's 
good  character  could  not  be  adduced,  until  her  character  had  been 
impeached  by  evidence  aliunde,  and  that  the  cross-examination  of 
the  prosecutrix  as  to  her  character,  did  not  warrant  the  admission  of 
such  evidence. 

Scarlett  for  the  prosecution,  contended,  that  since  the  witness  had 
been  examined  as  to  particular  facts,  for  the  purpose  of  impeaching 
her  character,  he  had  a  right  to  call  witnesses  to  conHrm  her,  in  the 
account  which  she  had  given  upon  her  cross-examination. 

HoLROYD,  J.*^  The  object  of  the  cross-examination  was  to  impeach 
the  character  of  the  witness,  and  to  show  that  she  was  not  credible. 
It  is  shown  by  this  cross-examination  that  she  has  committed  crimes. 
A  witness  is  then  examined  as  to  her  situation  and  conduct  since,  in 
order  to  repel  the  inference  which  might  be  drawn  from  her  former 
misconduct.  I  do  not  see  why  such  evidence  may  not  be  let  in  for  the 
purpose  of  removing  the  impeachment  of  her  character  upon  cross- 
examination,  as  well  as  if  it  had  arisen  aliunde.  The  circumstances 
which  are  offered,  are  offered  with  a  view  to  show  that  the  witness  is 

88  Accord:  Todons  v.  Schumers,  11-.J  111.  2G3  (1S84) ;  First  Nat.  liaiik  of 
Bartlesvllle  v.  I'.lukeman,  19  Okl.  lOG,  91  I'ac.  8G8,  12  L.  R.  A.  (N.  S.)  364 
(1907),  annotated. 

"T  Opinion  on  other  points  omitted. 


Sec.  4)  EXAMINATION  OF  WITNESSES  415 

not  so  unworthy  of  credit  as  she  might  have  been  considered  to  be,  if 
these  circumstances  had  not  intervened.  It  appears  to  me,  that  the 
evidence  is  admissible.®* 

The  husband  of  the  prosecutrix  being  examined,  as  to  the  com- 
plaint made  by  the  prosecutrix  to  him  soon  after  the  assault  had  taken 
place. 

HoLROYD,  J.,  held,  that  the  fact  of  her  having  made  the  complaint 
was  evidence,  as  also  was  the  description  of  her  state  and  appearance 
at  the  time ;  but  that  the  particulars  of  the  complaint  were  not  evi- 
dence, as  to  the  truth  of  her  statement.*" 


LOUISVILLE  &  N.  R.  CO.  v.  McCLISH 

(Circuit  Court  of  Appeals  of  the  United  States,  1902.    115  Fed.  268,  63 

C.  C.  A.  60.) 

Action  for  damages  for  the  death  of  George  McClish,  alleged  to 
have  been  negligently  run  over  and  killed  by  a  train  operated  by  de- 

fendant."" 

Day,  Circuit  Judge.  *  *  *  The  witness  Henry  Wright,  called  by 
the  plaintiff,  gave  testimony  tending  to  show  that  he  was  at  work  on 
a  telephone  pole  some  distance  south  of  the  place  of  the  injury;  that 
he  saw  McClish,  with  whom  he  was  well  acquainted,  pass  up  along  the 
track  northwardly  shortly  before  the  passenger  train  went  in  the  same 
direction.  Further,  that  shortly  after  the  passenger  train  passed  he 
saw  parties  bringing  the  body  of  McClish  from  the  scene  of  the  in- 
jury. The  company  offered  the  testimony  of  three  witnesses,  tend- 
ing, with  more  or  less  certainty,  to  show  that  Wright  was  not  at  this 
pole  that  day,  but  was  at  a  certain  opera  house  until  the  body  was 
brought  into  town.  Over  the  objection  of  the  defendant  company 
the  plaintiff  was  permitted  to  introduce  the  testimony  of  witnesses 
to  establish  the  general  good  character  of  the  witness  Wright  for 
truth  and  veracity.  The  question  of  the  admissibility  of  this  kind  of 
testimony  has  led  to  no  little  contrariety  of  decision  in  the  courts 
of  this  country.  The  practice  is  not  regulated  by  any  statute  of  Ten- 
nessee, so  far  as  we  are  advised,  and  is  a  question  of  general  law,  not 
controlled  by  state  decisions.  Garrett  v.  Railroad  Co.,  41  C.  C.  A. 
237,  101  Fed.  102,  49  L.  R.  A.  645.  The  question  was  presented  to  this 
court  under  facts  differing  from  those  now  before  us  in  Spurr  v.  U. 
S.,  31  CCA.  202,  87  Fed.  713.     *     *     * 

In  the  present  case  we  perceive  in  the  character  of  Wright's  cross- 
examination  nothing  which  tends  to   impeach  his  general  character 

88  Accord:     People  v.  Gay,  7  N.  T.  378  (1852). 

88  See  Com.  v.  Cleary,  post,  p.  422. 

»o  Statement  condensed  and  part  of  opinion  omitted. 


416  WITNESSES  (Ch.  2 

for  truth.  It  is  true  it  is  searching  and  exhaustive,  but  it  relates 
entirely  to  details  of  his  alleged  conduct  and  observation  of  McClish 
to  which  he  had  testified  in  chief,  and  we  think  the  doctrine  of  the 
Spurr  Case  entirely  applicable  to  the  case  in  hand  so  far  as  that  fea- 
ture is  concerned. 

Did  the  contradiction  of  Wright  by  the  witnesses  who  claim  that 
he  was  not  where  he  says  he  was,  and  consequently  could  not  have  seen 
what  he  attempted  to  describe,  put  in  issue  the  general  character  of 
the  witness  for  truth,  and  thereby  justify  the  introduction  of  witness- 
es to  sustain  it?  Greenleaf,  who  goes  farther  upon  this  subject 
than  many  of  the  authorities  are  willing  to  follow  in  admitting  this 
class  of  testimony,  supports  the  doctrine  that  the  contradiction  of  a 
witness  by  other  testimony  does  not  lay  the  foundation  for  the  intro- 
duction of  other  testimony  supporting  his  general  reputation  for 
truth.  Greenl.  Ev.  §  469,  and  notes.  What  more  is  there  in  this  case 
than  the  contradiction  of  Wright  by  other  testimony?  It  is  true  that 
the  contradiction  is  of  that  character  that  admits  of  no  reconciliation 
of  the  testimony  upon  any  theory  of  honest  mistake  or  failure  of 
memory.  This  is  often  true  of  witnesses  whose  general  character  for 
.  truth  is  unassailable.  If,  in  every  case  where  the  witnesses  are  in 
direct  and  irreconcilable  conflict,  general  character  proof  can  be  in- 
troduced, the  disputed  issues  of  fact  will  be  lost  sight  of  in  a  mass  of 
testimony  sustaining  or  impeaching  the  various  witnesses  in  the  case. 
The  present  case  affords  a  striking  illustration  of  the  effect  of  the  in- 
troduction of  this  class  of  testimony,  for  we  find  no  less  than  six  other 
witnesses  at  the  trial  whom  it  was  deemed  necessary  to  sustain  by 
proof  of  general  reputation.  If  this  practice  is  to  be  followed,  as  is 
said  in  Russell  v.  Coffin,  8  Pick.  142,  "great  delay  and  confusion  would 
rise;  and,  as  almost  all  cases  are  tried  upon  controverted  testimony, 
each  witness  must  bring  his  compurgators  to  support  him  when  he 
is  contradicted,  and,  indeed,  it  would  be  a  trial  of  the  witnesses,  and 
not  of  the  action." 

An  attentive  consideration  of  the  cases  and  of  the  reasons  upon 
which  they  are  founded  leads  us  to  the  conclusion  that  the  introduction 
of  this  class  of  testimony  should  be  confined  to  cases  where  an  attack 
has  been  made  upon  the  character  of  the  witness  by  some  method 
which  tends  to  impeach  his  general  character  for  truth.  It  is  true 
that  contradicting  testimony  may  have  an  effect  indirectly  to  im- 
peach in  the  mind  of  the  trior  the  character  of  the  witness  contra- 
dicted, but  that  is  not  the  purpose  of  the  testimony.  It  does  not 
matter  how  much  a  witness  may  be  contradicted,  his  general  char- 
acter is  presumed  good  until  it  is  assailed  by  some  recognized  method 
of  impeachment.  This  may  be  undertaken  by  showing  that  the  gen- 
eral reputation  of  the  witness  for  truth  is  bad,  by  showing  by  direct 
proof  or  upon  cross-examination  that  he  has  been  convicted  of  an 
infamous  crime.    In  these  instances  the  attack  is  made  upon  his  char- 


* 


Sec.  4)  EXAMINATION   OF   WITNESSES  417 

acter,  and  is  not  so  much  upon  his  testimony  in  the  particular  case 
as  upon  his  unreliability  as  a  witness.  When  his  character  is  thus 
assailed,  the  attack  may  be  repelled  by  proof  of  general  good  rep- 
utation for  truth.  Until  it  is  impeached  it  is  not  in  issue,  and  we 
think  the  ends  of  justice  will  be  subserved  by  confining  the  testimony 
to  the  issues  of  fact  essential  to  the  determination  of  the  controversy 
before  the  court.  While,  as  we  have  said,  the  cases  are  by  no  means 
uniform  upon  this  subject,  the  conclusion  reached  is  sustained  by  many 
well  considered  cases;  among  others:  Wertz  v.  May,  21  Pa.  274; 
Brann  v.  Campbell,  86  Ind.  516;  State  v.  Ward,  49  Conn.  429;  Webb 
V.  State,  29  Ohio  St.  351 ;  State  v.  Archer,  73  Iowa,  320,  35  N.  W. 
241;  Russell  v.  Coffin,  8  Pick.  (Mass.)  142;  Brown  v.  Mooers,  6 
Gray  (Mass.)  451 ;  Gertz  v.  Railroad,  137  Mass.  77,  50  Am.  Rep.  285; 
Stevenson  v.  Gunning's  Estate,  64  Vt.  609,  25  Atl.  697;  People  v. 
Gay,  7  N.  Y.  378;  Tedens  v.  Schumers,  112  111.  263.  ♦  ♦  ^ 
Judgment  reversed. 


RUSSELL  et  al.  v.  COFFIN. 
(Supreme  Judicial  Court  of  Massachusetts,  1829.     8  Pick.  143.) 

This  was  a  writ  of  entry,  dated  the  19th  of  April,  1825,  wherein  the 
demandant  counted  on  his  own  seisin  and  a  disseisin  by  James  Bigelow, 
who  aliened  to  the  tenant.    The  plea  was,  that  Bigelow  never  disseised. 

And  the  demandant  was  permitted  to  cross-examine  Hedge  as  to  the 
testimony  he  had  given  in  a  certain  deposition  then  in  the  counsel's 
hands,  which  had  not  been  read  to  the  witness,  nor  in  evidence,  and 
the  witness  having  given  testimony  in  some  particulars  different  from 
such  deposition,  and  having  testified  to  some  things  material  in  tlie 
cause,  not  stated  in  his  deposition,  the  counsel  were  permitted  to  give 
the  deposition  in  evidence  to  impeach  his  testimony.  Whereupon  the 
tenant  proposed  to  call  witnesses  to  prove  the  general  character  of  the 
witness  for  truth.  But  this  evidence  was  ruled  out,  and  the  counsel 
for  the  defendant  were  permitted,  in  argument  to  the  jury,  to  treat 
the  testimony  of  tliis  witness  as  having  been  given  falsely,  with  a  view 
to  benefit  the  tenant;  and  the  jury  were  instructed,  that  this  was  a 
subject  proper  for  their  consideration;  to  all  which  the  tenant  ex- 
cepted. 

The  jury  found  a  verdict  for  the  demandant.^* 

Parker,  C.  J.  *  *  *  In  regard  to  the  objection,  that  the  tenant 
was  not  allowed  to  give  evidence  of  the  general  character  of  Hedge, 
one  of  the  witnesses,  we  think  it  cannot  prevail.  Hedge  was  a  subscrib- 
ing witness  to  the  deed  from  Winslow  to  William  Coffin,  but  was  not 
examined  by  the  demandants,  from  an  apprehension  that  his  testimony 

»i  Statement  condensed  and  part  of  opinion  omitted. 
HiNT.Ev.— 27 


418  WITNESSES  (Ch.  2 

would  be  adverse.  He  was  then  introduced  by  the  tenant,  and  was 
cross-examined  by  the  demandants,  who  afterwards  read  Hedge's  dep- 
osition, to  contradict  his  testimony  on  the  stand.  There  was  nothing 
irregular  in  this  course;  nor  was  there  a  right  to  go  into  evidence  of 
his  general  character,  notwithstanding  the  attempt  to  impeach  him  by 
contrasting  his  testimony  given  at  a  different  time. 

The  position,  as  laid  down  by  Starkie,  cannot  be  carried  to  the  ex- 
tent contended  for.  He  probably  meant  only,  that  where  the  questions 
put  in  the  cross-examination  and  the  answers  did  impeach  his  gener- 
al character,  the  other  party  might  rebut  by  proving  a  good  general 
character.  And  so  far  we  do  not  object  to  the  principle.  As  in  the  case 
stated  by  Starkie,  the  witness  was  asked,  whether  she  had  not  been 
twice  committed  to  Bridewell,  and  aliswered  that  she  had.  This  went 
to  affect  her  general  reputation;  and  the  party  who  called  her,  was 
allowed  to  prove,  that  since  those  commitments  her  character  had  been 
fair  and  good. 

But  it  never  was  decided,  that  if  a  witness  was  contradicted  as  to 
any  fact  of  his  testimony,  either  by  his  own  .declarations  at  other 
times,  or  by  other  witnesses,  evidence  might  be  admitted  to  prove  his 
general  good  character.  If  this  were  the  practice,  great  delay  and 
confusion  would  arise,  and  as  almost  all  cases  are  tried  upon  contro- 
verted testimony,  each  witness  must  bring  his  compurgators  to  sup- 
port him  when  he  is  contradicted;  and  indeed  it  would  be  a  trial  of 
the  witnesses  and  not  of  the  action. 

None  of  the  objections  prevailing,  the  judgment  must  be  upon  the 
verdict."* 


DERRICK  V.  WALLACE. 

(Court  of  Appeals  of  New  York,  1916.    217  N.  Y.  520,  112  N.  E.  440.) 

Pound,  J.**^  The  plaintiff,  called  as  a  witness  in  his  own  behalf,  on 
his  cross-examination  testified  that  on  the  31st  day  of  October,  1896, 
he  had  been  convicted  of  the  crime  of  forgery  in  the  second  degree 
and  sentenced  to  Auburn  State  Prison  for  a  term  of  5  years  and  8 
months.  He  thereafter  oft'ered  evidence  of  witnesses  of  his  general 
reputation  in  the  community  in  which  he  lived.  This  was  objected  to  as 
incompetent,  on  the  ground  that  his  reputation  had  not  been  impeach- 
ed, except  by  cross-examination,  and  was  excluded,  subject  to  his  ex- 
ception. 

Although  opposite  views  have  been  taken  of  this  question,  we  think 
that  evidence  of  general  good  reputation  should  have  been  admitted. 
The  authorities  on  both  sides  arc  collected  by  Professor  Wigmore  in 
his  work  on  Evidence  (section  1106),  and  the  cases  and  text-books  sup- 

8  2  See  elaborate  opinion  to  same  effect  in  Cbapman  v.  Cooley,  12  Rich.  (S. 
C.)  054  (ISOO). 

93  r.'iTf  of  oi)lnlon  omlttfd. 


Sec.  4)  EXAMINATION  OF   WITNESSES  419 

porting  the  rule  are  cited  by  Burford,  C.  J.,  in  First  National  Bank 
of  BartlesviUe  v.  Blakeman  (1907)  19  Okl.  106,  91  Pac.  868,  12  L.  R. 
A.  (N.  S.)  364.  It  would  be  an  affectation  of  research  to  appropriate 
the  result  of  their  labors  by  extended  citations.  Enough  to  say  that 
such  evidence  has  been  admitted  almost  invariably  in  the  jurisdictions 
where  the  question  has  arisen.  It  seems,  however,  to  have  been  as- 
sumed that  the  courts  in  this  state  are  against  its  admissibility,  and  a 
brief  review  of  the  cases  may  prove  helpful.     *     *     * 

The  main  question,  therefore,  remains  an  open  one  in  this  state. 
Against  the  admissibility  of  the  evidence  it  is  urged  that  as  a  practical 
proposition  tlie  calling  of  witnesses  to  general  good  reputation  must 
be  limited  to  cases  where  witnesses  are  first  called  to  impeach  the 
general  character  of  the  witness;  otherwise,  the  trial  of  the  main  is- 
sue would  be  obscured  and  delayed  for  the  trial  of  collateral  issues  of 
character,  which  would  distract  the  attention  of  the  jury.  Tedens  v. 
Schumers,  112  111.  263,  267.  But  the  instances  when  conviction  of 
crime  is  followed  by  reform  and  re-established  good  character  are  not 
so  numerous  that  the  convenience  of  the  courts  will  not  permit  the 
former  convict  to  show  his  good  reputation.  Here  the  witness  was 
called  in  the  year  1913  and  discredited  by  a  conviction  in  the  year  1896. 
Is  he  to  be  discredited  for  life  rather  than  permitted  to  call  witnesses 
to  his  present  good  character?  Certainly  not,  unless  for  a  better  rea- 
son than  the  application  of  a  rule  of  mere  expediency. 

It  is  further  urged  that  "records  of  convictions  of  crime  exhibit  the 
bad  character  directly,  and  cannot  be  explained  away  by  testimony  as 
to  good  repute."  Wigmore,  §  1106.  In  other  words,  the  proof  of  con- 
viction is  proof  of  a  particular  circumstance  and  not  of  general  bad 
character,  and,  therefore,  it  does  not  logically  open  the  door  to  rebut- 
ting proof  of  general  good  character.  But  Holmes,  J.,  in  Gertz  v. 
Fitchburg  R.  R.  Co.,  137  Mass.  17,  50  Am.  Rep.  285,  holding  that  an 
impeaching  conviction  may  be  rebutted  by  evidence  of  good  character 
says:  "When  it  is  proved  that  a  witness  has  been  convicted  of  a 
crime,  the  only  ground  for  disbelieving  him  which  such  proof  affords 
is  the  general  readiness  to  do  evil,  which  the  conviction  may  be  dis- 
posed to  show.  It  is  from  that  general  disposition  alone  that  the 
jury  is  asked  to  infer  a  readiness  to  lie  in  the  particular  case."  He  is 
speaking  of  proof  by  the  record  of  conviction,  but  it  is  not  apparent 
that  any  different  rule  should  apply  when  the  fact  of  conviction  is  prov- 
ed on  cross-examination. 

In  general  the  credibility  of  a  witness  is  not  to  be  impeached  by  proof 
of  a  particular  offense,  such  as  the  commission  of  a  crime,  except  from 
the  mouth  of  the  witness  himself  on  cross-examination  (Jackson  v. 
Osborn,  2  Wend.  555,  558,  20  Am.  Dec.  649 ;  Sims  v.  Sims,  75  N.  Y. 
466,  472) ;  but  conviction  of  a  crime  may  be  proved  by  the  record  for 
the  purpose  of  affecting  the  weight  of  testimony.  By  tlie  Code  of  Civil 
Procedure  (section  832)  it  may  also  be  proved  by  cross-examination 
but,  if  proved  at  all,  it  must  be  proved  either  by  the  record  or  by  cross- 


420  WITNESSES  (Ch.  2 

examination.  Newcomb  v.  Griswold,  24  N.  Y.  298 ;  People  v.  Cardillo, 
207  N.  Y.  70,  100  N.  E.  715,  Ann.  Cas.  1914C,  255.  Anciently  an 
outlawed  felon  was  said  to  have  a  wolf's  head  (caput  lupinum),  so  that 
any  one  might  kill  him  as  he  would  a  wolf.  1  P.  &  M.  Hist.  Eng.  Law, 
459.  Later  and  until  recently  the  convicted  felon  was  disqualified  as 
a  witness.  Persons  convicted  of  crime  are  now  competent  witnesses, 
and  the  only  purpose  for  which  conviction  can  be  shown  is  to  affect 
credibility  by  suggesting  general  bad  reputation.  Evidence  of  convic- 
tion thus  impeaches  the  general  character  for  truth  and  veracity,  and 
may  be  met  by  evidence  of  general  good  character.  Mere  self-incrimi- 
nation on  cross-examination  never  disqualified  the  witness,  and  miscon- 
duct thus  confessed  cannot  be  said  to  discredit  character  generally  in 
the  community,  in  the  sense  that  proof  of  conviction  discredits  it. 

The  judgment  should  be  reversed,  and  a  new  trial  granted,  with  costs 
to  abide  the  event. 

WiLLARD  BartlETT,  C.  J.,  and  CuAsn,  Collin,  Cuddeback,  Car- 
Dozo,  and  Searury,  JJ.,  concur. 

Judgment  reversed,  etc. 


ELLICOTT  et  al.  v.  PEARL. 
(Supreme  Court  of  the  United  States,  1836.    10  Pet.  412,  9  I*  Ed.  475.) 

Mr.  Justice  Story  **  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  judgment  of  the  circuit  court  for  the 
district  of  Kentucky,  upon  a  writ  of  right,  sued  forth  on  the  17th  of 
January  1831 ;  in  which  the  plaintiffs  in  error  were  the  demand- 
ants.    *     *     * 

The  next  exception  is  founded  upon  the  refusal  of  the  court  to  permit 
testimony  to  be  given  of  the  declarations  of  one  Kincaid  (the  sur- 
veyor of  Remey's  survey)  under  the  following  circumstances:  Kin- 
caid had  been  examined  as  a  witness  for  the  demandants,  (by  way  of 
deposition),  and  the  tenants,  thereupon,  gave  in  evidence  the  conver- 
sations and  declarations  of  Kincaid,  to  certain  witnesses,  in  order 
to  discredit  his  (Kincaid's)  testimony,  and  to  show  that  he  had  stated 
that  the  survey  was  made  by  him,  at  the  mouth  of  Raccoon  Creek,  for 
Remey,  when  it  was  his  interest  to  place  it  at  Pond  Creek.  The 
demandants  then,  with  a  view  to  sustain  Kincaid,  and  to  support  the 
statements  going  to  his  interest,  offered  witnesses  to  prove  the  state- 
ments and  conversations  of  Kincaid  at  other  times,  corresponding  with 
the  statements  made  in  his  deposition,  relative  to  his  making  the  sur- 
veys of  Thompson  and  Remey ;  and  it  being  suggested  by  the  demand- 
ants, upon  an  incjuiry  from  the  court,  that  these  statements  and  con- 
versations were  subsequent  to  tliose  testified  to  by  the  tenants'  wit- 

•4  Part  of  opinion  omitted. 


Sec.  4)  EXAMINATION  OF  WITNESSES  421 

nesses;    the  court,  upon  an  objection  taken  by  the  tenants,  excluded 
the  evidence.    In  our  opinion,  the  evidence  was  rightly  excluded. 

Where  witness  proof  has  been  offered  against  the  testimony  of  a 
-witness  under  oath,  in  order  to  impeach  his  veracity,  establishing  that 
he  has  given  a  different  account  at  another  time,  we  are  of  opinion  that, 
in  general,  evidence  is  not  admissible,  in  order  to  confirm  his  testimony, 
to  prove  that  at  other  times  he  has  given  the  same  account  as  he  has 
under  oath ;  for  it  is  but  his  mere  declaration  of  the  fact ;  and  that  is 
not  evidence.  His  testimony  under  oath  is  better  evidence  than  his 
confirmatory  declarations  not  under  oath ;  and  the  repetition  of  his 
assertions  does  not  carry  his  credibility  further,  if  so  far  as  his  oath. 
We  say  in  general,  because  there  are  exceptions ;  but  they  are  of  a 
peculiar  nature,  not  applicable  to  the  circumstances  of  the  present  case ; 
as  where  the  testimony  is  assailed  as  a  fabrication  of  a  recent  date,  or 
a  complaint  recently  made ;  for  there,  in  order  to  repel  such  imputation, 
proof  of  the  antecedent  declaration  of  the  party  may  be  admitted. 

It  is  true  that  in  Lutterel  v.  Reynell,  1  Mod.  Rep.  282,^^  it  was 
held,  that  though  hearsay  be  not  allowed  as  direct  evidence,  yet  it 
may  be  admitted  in  corroboration  of  a  witness's  testimony  to  show 
that  he  affirmed  the  same  thing  upon  other  occasions,  and  that  he  is 
still  constant  to  himself.  Lord  Chief  Baron  Gilbert  has  asserted  the 
same  opinion  in  his  Treatise  on  Evidence,  p.  135.  But  Mr.  Justice 
BuUer,  in  his  Nisi  Prius  Treatise,  p.  294,  says:  "But  clearly  it  is 
not  evidence  in  chief;  and  it  seems  doubtful  whether  it  is  so  in  reply 
or  not."  The  same  question  came  before  the  house  of  lords,  in  the 
Berkeley  Peerage  Case,  4  Camp.  401 ;  and  it  was  there  said  by  Lord 
Redesdale,  that  he  had  always  understood  that  for  the  purpose  of  im- 
pugning the  testimony  of  a  witness,  his  declarations  at  another  time 
might  be  inquired  into ;  but  not  for  the  purpose  of  confirming  his 
evidence.  Lord  Eldon  expressed  his  decided  opinion,  that  this  was  the 
true  rule  to  be  observed  by  the  counsel  in  the  cause.  Lord  Chief  Jus- 
tice Eyre  is  also  represented  to  have  rejected  such  evidence,  when 
offered  on  behalf  of  the  defendant  in  a  prosecution  for  forgery.    We 

95  In  this  case,  where  a  cotrespasser,  who  had  not  been  joined  as  a  de- 
fendant, testified  for  the  plaintiff,  the  Lord  Chief  Baron  "also  declared  it 
was  agreed,  that  whereas  William  Maynard,  one  of  the  witnesses  for  the 
plaintiff,  was  guilty,  as  appeared  by  his  own  evidence,  together  with  the  de- 
fendants, but  was  left  out  of  the  declaration,  that  he  might  be  a  witness  for 
the  plaintiff,  that  he  was  a  good  and  legal  witness ;  but  his  credit  was  les- 
sened by  it,  foe  that  he  swore  in  his  own  discharge ;  for  that  when  these 
defendants  should  be  convicted,  and  have  satisfied  the  condemnation,  he 
might  plead  the  same  in  bar  of  an  action  brought  against  himself.  But 
those  in  the  simul  cum  were  no  witnesses.  Several  witnesses  were  received, 
and  allowed,  to  prove,  Tliat  William  Maynard  did  at  several  times  discourse 
and  declare  the  same  things,  and  to  the  like  purpose,  that  he  testified  now. 
And  the  Lord  Chief  Baron  said,  though  a  hearsay  was  not  to  be  allowed  as  a 
direct  evidence,  yet  it  might  be  made  use  of  to  this  purpose,  viz.,  to  prove 
that  William  Maynard  was  constant  to  himself,  whereby  his  testimony  was 
corroborated." 

See  opinion  of  BuUer.  J.,  in  Rex  v.  Parl^er,  3  Douglas,  242  (1780),  disap- 
proving the  broad  rule  for  which  Lutterel  v.  Reynell  was  supposed  to  stand. 


422  WITNESSES  "         (Ch.  2 

think  this  is  not  only  the  better,  but  the  true  opinion ;  and  well  found- 
ed on  the  general  principles  of  evidence.  There  is  this  additional 
objection  to  the  admission  of  the  confirmatory  evidence  in  the  present 
case,  that  it  is  of  subsequent  declarations ;  which  would  enable  the  wit- 
ness at  any  time  to  control  the  effect  of  the  former  declarations,  which 
he  was  conscious  that  he  had  made,  and  which  he  might  now  have  a 
motive  to  qualify  or  weaken  or  destroy.  *  *  ♦ 
Judgment  affirmed. °° 


COMMONWEALTH  v.  CLEARY. 
SAME  V.  GUIHEEN. 

(Supreme  Judicial  C5ourt  of  Massacliusetts,  1S9S.    172  ISIass.  175,  51  N.  E.  746.) 

Holmes,  J.  These  are  indictments  for  unlawfully  abusing  a  female 
child  under  the  age  of  16  years.  St.  1893,  c.  466,  §  2.  They  come  here 
on  exceptions  to  evidence  that  the  child  "made  complaint  to  her  [moth- 
er] the  next  morning  after  the  occurrence  as  to  what  had  been  done 
to  her  by  the  defendants  the  night  before."  It  does  not  appear  that 
more  was  admitted  than  the  fact  that  the  child  made  complaint,  with 
sufficient  to  identify  the  subject-matter,  and  therefore  it  is  not  neces- 
sary to  consider  whether  the  whole  statement  would  have  been  admis- 
sible if  offered,  as  the  district  attorney  asks  us  to  decide.  The  only 
question  argued  for  the  defendants  is  whether  the  statement  appears, 
as  matter  of  law,  to  have  been  too  remote  in  point  of  time  to  be  admis- 
sible. It  is  not  argued  that  the  common  law  in  cases  of  rape  does  not 
apply.  See  Com.  v.  Roosnell,  143  Mass.  32,  8  N.  E.  747;  Com.  v. 
Hackett,  170  Mass.  194,  196,  48  N.  E.  1087. 

The  rule  that,  in  trials  for  rape,  the  government  may  or  must  prove 
that  the  woman  concerned  made  complaint  soon  after  the  commission 
of  the  offense,  is  a  perverted  survival  of  the  ancient  requirement  that 
she  should  make  hue  and  cry  as  a  preliminary  to  bringing  her  appeal. 
GlanviUe,  14,  6;  Bract.  147a;  Fleta,  1,  c.  25,  §  14;  St.  4  Edw.  I. 
Stat.  2.  Appeals  became  obsolete,  and  left  rape  to  be  dealt  with  by  in- 
dictment before  the  development  of  the  modern  law  of  evidence.  Lord 
Hale,  after  stating  the  old  law  as  to  appeals,  quoting  Bracton,  went 
on  to  deal  with  the  evidence  upon  an  indictment  for  rape.  Having 
stated  that  the  party  ravished  might  give  evidence  upon  oath,  the  value 
of  which  would  be  affected  by  corroborative  facts,  he  recurred  to  the 
matter  of  fresh  complaint,  and  said  that,  if  she  "presently  discovered 
the  offense,  made  pursuit  after  the  offender,"  etc.,  "these  and  the  like 
are  concurring  evidences,  to  give  greater  probability  to  her  testimony." 
1  Hale,  P.  C.  632,  633. 

»9And  so  In  Com.  v.  Jenkins,  10  Gray  (Mass.)  487  (185S).  But  see  opin- 
ion by  Coolcy,  J.,  in  Stewart  v.  People,  23  Mich.  63,  9  Am.  Rep.  78  (1862). 


Sec.  4)  EXAMINATION   OF   WITNESSES  423 

Obviously,  this  was  suggested  by,  and  merely  echoed,  the  require- 
ment in  appeals,  but  it  gave  tliat  requirement  a  more  or  less  new  turn. 
If  it  means,  what  it  has  been  taken  to  mean,  that  the  government  can 
prove  fresh  complaint  as  part  of  its  original  case,  it  cannot  be  justified 
by  the  general  principles  of  evidence  which  now  prevail.  In  general, 
you  cannot  corroborate  the  testimony  of  a  witness  by  proof  that  he 
has  said  the  same  thing  before,  when  not  under  oath.  But  Lord  Hale's 
statement  of  the  law  has  survived  as  an  arbitrary  rule  in  the  particular 
case,  notwithstanding  the  later-developed  principles  of  evidence ;  and, 
although  nowadays  recognized  as  an  exception  attempted  to  be  fortified 
by  exceptional  reasons,  still  it  is  put  upon  the  ground  upon  which  it 
was  placed  by  his  words.  The  evidence  is  not  admitted  as  part  of  the 
res  gestae,  or  as  evidence  of  the  truth  of  the  things  alleged,  or  solely 
for  the  purpose  of  disproving  consent,  but  for  the  more  general  pur- 
pose of  confirming  the  testimony  of  the  ravished  woman.  Reg.  v.  Lilly- 
man  [1896]  2  Q.  B.  167,  170^  177;  3  Russ.  Crimes  (6th  Ed.)  387, 
see  Grave's  note  (m) ;  State  v.  Kinney,  44  Conn.  153,  155,  26  Am. 
Rep.  436;  Haynes  v.  Com.,  28  Grat.  (Va.)  942,  947,  948;  Hornbeck 
v.  State,  35  Ohio  St.  277,  280.  35  Am.  Rep.  608 ;  People  v.  O'Sullivan, 
104  N.  Y.  481,  486,  10  N.  E.  880,  58  Am.  Rep.  530;  Bedingfield's  Case, 
14  Am.  Law  Rev.  830,  838;  3  Greenl.  Ev.  §  213;  1  McClain,  Cr. 
Law,  §§  455,  456. 

It  tollows  that  the  complaint  could  not  be  rejected  because  it  was 
no  part  of  the  res  gestae,  or  because,  under  our  statute,  the  child  was 
too  young  to  consent.  The  former  point  was  argued  by  both  sides, 
seemingly  under  the  mistaken  notion  that  the  complaint  is  substantive 
evidence  of  the  facts  charged.  The  test  is  whether,  according  to  the 
principles  of  the  exception,  her  having  made  the  complaint  tends  to 
corroborate  testimony  given  by  the  child  at  the  trial.  It  does  not  appear 
whether  the  child  testified  or  not,  but  it  would  seem  that  she  did,  and, 
on  the  bill  of  exceptions,  it  must  be  assumed  that  she  did.  The  only 
question  open,  therefore,  is  whether  it  can  be  said,  as  matter  of  law, 
that  the  complaint  was  made  too  late.  This  depends  upon  a  preliminary 
finding  by  the  judge.  Com.  v.  Bond,  170  Mass.  41,  43,  48  N.  E.  756. 
We  cannot  say  that  the  admission  of  the  evidence  was  not  justified. 
The  alleged  rape  was  between  9  and  10  o'clock  in  the  evening.  The 
girl  was  not  out  of  the  alleged  ravisher's  company  until  half  past  10, 
when  she  entered  a  friend's  house,  crying,  excited,  and  frightened. 
The  friend  took  her  to  her  home  at  12.  She  was  still  frightened  and 
trembling,  and  her  mother  put  her  to  bed.  She  made  the  complaint  the 
next  morning.  It  might  have  been  found  on  this  evidence  that  she  was 
not  in  a  condition  to  speak  until  she  had  rested,  and  that  she  was 
dealt  with  accordingly.  Hill  v.  State,  5  Lea  (Tenn.)  725,  732;  State 
V.  Knapp,  45  N.  H.  148,  155. 

Some  cases  have  cut  free  from  the  original  ground,  and  intimate 
that  lapse  of  time  before  making  complaint  goes  only  to  its  weight, 
not  to  its  competency.     State  v.  Mulkern,  85  Me.  106,  26  Atl.  1017; 


424  WITNESSES  (Ch.  2 

State  V.  Niles,  47  Vt.  82,  86.    But  it  is  not  necessary  to  lay  down  so 
broad  a  rule.    In  extreme  cases  the  evidence  has  been  ruled  out.    People 
V.  O'Sullivan,  1(H  N.  Y.  481,  490,  10  N.  E.  880,  58  Am.  Rep.  530. 
Exceptions  overruled.®^ 


MERCER  et  al.  v.  STATE. 

(Supreme  Court  of  Florida,  1898.     40  Fla.  216,  24  South.  154,  74  Am.  St. 

Rep.  135.) 

Taylor,  C.  J.®'  *  *  ♦  Several  witnesses  were  introduced  in  re- 
buttal by  the  state  for  the  purpose  of  sustaining  the  general  reputation 
and  character  for  truth  and  veracity  of  several  other  state  witnesses. 
This  evidence  was  objected  to  by  the  defendants  on  the  ground  that 
the  witnesses  for  the  state,  whose  characters  were  sought  by  it  to  be 
sustained,  had  not  been  impeached  by  the  defendants,  and  because  their 
reputation  for  truth  and  veracity  had  not  been  attacked,  and  was  not  at 
issue.  These  objections  were  overruled,  and  the  testimony  admitted, 
and  this  ruling  is  assigned  as  the  tenth  and  twelfth  errors.  There  was 
no  error  here.  The  general  characters  of  the  state's  witnesses  whose 
reputation  for  truth  and  veracity  in  the  communities  in  which  they 
Hved  was  sought  to  be  estabHshed  and  sustained  by  the  challenged  evi- 
dence had  not  been  attempted  to  be  impeached  by  any  direct  general 
assault  thereon,  it  is  true ;  but  the  defendants,  as  to  each  of  said  wit- 
nesses, had  not  only,  on  cross-examination,  and  by  tlieir  own  witnesses, 
undertaken  to  cast  discredit  upon  them  for  truth  and  veracity,  but  in- 
troduced various  witnesses  who  testified  to  contradictory  statements 
alleged  to  have  been  made  by  them  on  other  occasions  respecting  the 
subject-matter  of  their  testimony  conflicting  with  the  evidence  at  the 

trial. 

The  rule  governing  the  admissibility  of  evidence  to  sustain  the  gen- 
eral character  of  a  party's  witness  for  truth  and  veracity  is  very  well 
settled,  and  is  accurately  stated  by  Judge  Redfield  in  Paine  v.  Tilden,  20 
Vt.  554,  as  follows :  "It  is  now  well  settled  that,  whenever  the  charac- 
ter of  a  witness  for  truth  is  attacked  in  any  way,  it  is  competent  for 
the  party  calling  him  to  give  general  evidence  in  support  of  the  good 
character  of  the  witness.  And  we  do  not  think  it  important  whether 
the  character  of  the  witness  is  attacked  by  showing  that  he  has  given 
contradictory  accounts  of  the  matter  out  of  court,  and  different  from 

»7  Apparently  the  earlier  practice  limited  the  evidence  to  the  bare  fact 
that  a  complaint  had  been  made,  excluding  what  was  said  in  making  such 
complaint.  .State  v.  Jones,  01  Mo.  2:i-J  (1S75) ;  People  v.  Hamilton,  2G8  111. 
yjO,  109  N.  E.  .'^.29  (1915). 

In  Keg.  V.  Lillvrnan,  2  Q.  B.  107  (1890),  the  question  was  elaborately  con^ 
sidercd,  and  the  conclusion  reached  that  the  details  of  the  complaint  should 
be  admitted.  See  same  result  In  State  v.  De  Wolf,  8  Conn.  93,  20  Am.  Dec. 
90  (1S.';0).  For  a  discussion  of  the  time  element,  see  State  v.  Patricia,  107 
Mo.  147,  17  S.  W.  000  (1891). 

»8  Part  of  opinion  omitt(!d. 


Sec.  4)  EXAMINATION   OF   WITNESSES  425 

that  sworn  to,  or  by  cross-examination,  or  by  general  evidence  of 
want  of  character  for  truth."  In  Stevenson  v.  Gunning's  Estate,  64 
Vt.  601,  25  Atl.  697,  it  is  said:  "It  is  observable  that  a  distinction  i» 
taken  between  an  attack  upon  the  character  of  the  witness,  as  such, 
for  credibility,  and  the  character  of  the  testimony  given,  for  belief.  1/ 
is  only  when  the  character  of  the  witness  for  credibiUty  is  directly  at- 
tacked by  general  evidence  regarding  his  standing  and  character  for 
truth  and  veracity,  or  by  showing  that  he  has  made  contradictory  oi 
inconsistent  statements  either  out  of  court  or  in  court,  or  that  he  haa 
been  convicted  of  some  crime,  or  engaged  in  some  act  affecting  his 
credibility,  like  suborning  or  attempting  to  suborn  a  witness  or  suppresa 
testimony  in  the  case  on  trial,  that  sustaining  evidence  can  be  used." 
Phillips  V.  State,  19  Tex.  App.  158;  Glaze  v.  Whitley,  5  Or.  164;  Clarh 
v.  Bond,  29  Ind.  555  ;  Harris  v.  State,  30  Ind.  131 ;  State  v.  Cooper,  71 
Mo.  436;  Burrell  v.  State,  18  Tex.  713;  George  v.  Pilcher,  28  Grat 
(Va.)  299,  26  Am.  Rep.  350;  Isler  v.  Dewey,  71  N.  C.  14;  Holley  n. 
State,  105  Ala.  100,  17  South.  102;   1  Greenl.  Ev.  §  462. 

In  addition  to  the  proof  by  the  state  to  sustain  the  general  character 
of  its  witnesses  for  truth  and  veracity,  the  state  attorney  was  allowed, 
over  the  objection  of  the  defendants,  to  go  further  in  its  sustaining 
proof,  and  to  interrogate  the  supporting  witnesses  by  independent  ques-  ■ 
tions  as  to  the  character  for  honesty  of  its  sustained  witnesses ;  and 
this  ruling  is  assigned  as  the  eleventh  error.  The  majority  of  the  courf 
are  of  the  opinion  that  this  ruling  is  reversible  error.  The  general, 
well-settled  rule  of  law  is  that,  when  the  character  of  a  witness  is  gone 
into,  the  only  proper  object  of  inquiry  is  as  to  his  reputation  for  truth 
and  veracity.  1  Tayl.  Ev.  p.  257  et  seq.,  and  cases  cited.  Neither  hi? 
general  character,  nor  particular  phases  or  traits  of  character,  can  bft 
gone  into,  but  the  inquiry  must  be  confined  to  his  reputation  or  charac- 
ter for  truth  and  veracity.  The  writer  of  this  opinion,  while  concur- 
ring in  the  correctness  of  the  rule  announced,  cannot  agree  with  the 
majority  of  the  court  that  the  inquiry  into  the  honesty  of  the  state'< 
witnesses    permitted    in    this    case    is    sufficient    cause    for    reversal 

S)f  ^  >{c 

Judgment  reversed. 


COMMONWEALTH  v.  RETKOVITZ. 

(Supreme  Judicial  Court  of  Massachusetts,  1915.    222  Mass.  245,  110  N.  E.  208.) 

RuGG,  C.  J.®®  *  *  *  Two  witnesses  called  by  the  commonwealth 
testified  that  they  saw  the  defendant  near  the  house  of  Domka  Pereme- 
bida  a  short  time  before  her  death.  The  counsel  for  the  defendant  stat- 
ed, after  cross-examination,  in  substance  that  he  intended  to  show, 
if  he  could,  that  these  witnesses  had  concealed  the  facts,  or  that  they 

o»  Statement  and  part  of  opinion  omitted. 


426  WITNESSES  (Ch.  2 

were  unduly  influenced  to  testify  as  they  did,  or  that  their  testimony 
was  a  recent  contrivance.  Thereupon,  the  commonwealth  was  per- 
mitted, without  objection,  to  call  a  witness,  Violette,  to  show  that  these 
two  witnesses  had  made  statements  soon  after  the  homicide  similar 
to  those  given  by  them  in  testimony.  Upon  this  posture  of  the  case 
such  testimony  was  com.petent. 

The  mere  fact  that  a  witness  has  made  statements  on  other  occasions 
at  variance  with  testimony  given  in  court  does  not  warrant  the  intro- 
ducing of  confirmatory  evidence  to  the  eflfect  that  he  has  given  an  ac- 
count of  the  transaction  at  still  other  times  in  harmony  with  his  sworn 
testimony.  A  party  may,  for  the  purpose  of  discrediting  an  opponent's 
witness,  show  that  he  has  given  two  inconsistent  narrations  of  the  same 
alTair,  one  of  which  was  necessarily  untrue.  As  is  pointed  out  with 
clearness  by  Bigelow,  J.,  in  Commonwealth  v.  Jenkins,  10  Gray,  485. 
488,  when  this  is  the  state  of  the  evidence  it  by  no  means  relieves  the 
witness  of  the  distrust  thus  cast  upon  him  to  prove  that  the  story  last 
told  was  similar  to  an  earlier  version  given  by  the  witness.  The  two 
inconsistent  statements  still  remain.  Hence,  under  these  circumstanc- 
es, such  corroborating  evidence  is  inadmissible. 

This  is  the  general  rule.  But  there  is  an  exception  where  the  con- 
tention is  made  that  the  testimony  of  a  witness  is  given  under  a  bias  or 
undue  influence,  arising  from  some  late  occurrence  subsequent  to  the 
main  event,  is  a  recent  contrivance,  or  that  the  facts  described  in  tes- 
timony previously  have  been  concealed  under  conditions  which  war- 
rant the  belief  that,  if  they  were  true,  the  witness  would  have  been 
likely  to  have  revealed  them.  In  such  a  situation,  evidence  that  the  wit- 
ness at  earlier  times  before  the  intervention  of  these  pernicious  im- 
pulses had  made  statements  like  those  given  in  court  has  a  legitimate 
tendency  to  impugn  the  existence  of  these  factors  as  operating  causes 
to  produce  the  testimony  and  thus  to  fortify  his  testimony,  and  there- 
fore should  be  admitted.  The  exception  to  the  general  rule  is  a  narrow 
one  and  is  not  to  be  extended ;  but  when  the  contentions  of  the  parties 
give  rise  to  its  application,  it  is  well  established.  Grifiin  v.  Boston,  188 
Mass.  475,  74  N.  E.  687;  Brown  v.  Brown,  208  Mass.  290,  94  N.  E. 
465  See '  for  a  full  discussion  of  all  the  principles.  Com.  v.  Tucker, 
189  Mass.  457,  479-485,  76  N.  E.   127,  7  U  R.  A.  (N.  S.)   1056. 


*   100 


100  And  so  in  Ferris  v.  Sterling,  214  N.  Y.  240.  lOS  N.  E.  40G,  Ann.  Cas. 
1916D,  llGl  (1915). 


Sec.  1)  HEARSAY  427 


CHAPTER  III 
HEARSAY 


SECTION  1.— THE  GENERAL  RULE^ 


"The  Attestation  of  the  Witness  must  be  to  what  he  knows,  and  not 
to  that  only  which  he  hath  heard,  for,  mere  Hearsay  is  no  Evidence ; 
for  it  is  his  Knowledge  that  must  direct  the  Court  and  Jury  in  the 
Judgment  of  the  Fact,  and  not  his  mere  Credulity,  which  is  very  un- 
certain and  various  in  several  Persons;  for  Testimony  being  but  an 
Appeal  to  the  Knowledge  of  another,  if  indeed  he  doth  not  know,  he 
can  be  no  Evidence.  Besides  though  a  Person  testify  to  what  he 
hath  heard  upon  Oath,  yet  the  Person  who  spake  it  was  not  upon 
Oath;  and  if  a  Man  had  been  in  Court  and  said  the  same  Thing  and 
had  not  Sworn  ^  it,  he  had  not  been  believed  in  a  Court  of  Justice; 
for  all  Credit  being  derived  from  Attestation  and  Evidence,  it  can 
rise  no  higher  than  the  Fountain  from  whence  it  flows,  and  if  the 
first  Speech  was  without  Oath,  an  Oath  that  there  was  such  a  Speech 
makes  it  no  more  than  a  bare  Speaking,  and  so  of  no  value  in  a  Court 

1  Mansfield,  C.  J.,  in  the  Berkeley  Peerage  Case,  4  Campbell  401  (1811): 
"By  the  general  rule  of  law,  nothing  that  is  said  by  any  person  can  be  used 
as  evidence  between  contending  parties,  unless  it  is  delivered  upon  oath  in 
the  presence  of  those  parties.  With  two  exceptions,  this  rule  is  adhered  to  in 
all  civil  cases.  Some  inconvenience  no  doubt  arises  from  such  rigor.  If  ma- 
terial witnesses  happen  to  die  before  the  trial,  the  person  whose  case  they 
would  have  established,  may  fail  in  the  suit.  But  although  all  the  Bishops 
on  the  bench  should  be  ready  to  swear  to  what  they  heard  these  witnesses 
declare,  and  add  their  own  implicit  belief  of  the  truth  of  the  declarations, 
the  evidence  could  not  be  received.  Upon  this  subject,  the  laws  of  other 
countries  are  quite  different ;  they  admit  evidence  of  hearsay  without  scruple. 
There  is  not  an  appeal  from  the  neighboring  kingdom  of  Scotland  in  which 
you  will  not  find  a  great  deal  of  hearsay  evidence  upon  every  fact  brought 
into  dispute.  This  has  struck  many  persons  as  a  great  absurdity  and  de- 
fect in  the  law  of  that  coxmtry.  But  the  different  rules  which  prevail  there 
and  with  us  seem  to  me  to  have  a  reasonable  foundation  in  the  different  man- 
ner in  which  justice  is  administered  in  the  two  countries.  In  Scotland,  and 
most  of  the  continental  states,  the  judges  determine  upon  the  facts  in  dis- 
pute as  well  as  upon  the  law;  and  they  think  there  is  no  danger  in  their 
listening  to  evidence  of  hearsay,  because  when  they  come  to  consider  of  their 
judgment  on  the  merits  of  the  case,  they  can  trust  themselves  entirely  to 
disregard  the  hearsay  evidence,  or  to  give  it  any  little  weight  which  it  may 
seem  to  deserve.  But  in  England,  where  the  jury  are  the  sole  judges  of  the 
fact,  hearsay  evidence  is  properly  excluded,  because  no  man  can  tell  what 
effect  it  might  have  upon  their  minds." 

2  See  Brazier's  Case,  ante,  p.  130,  where  a  child  was  examined  without  hav- 
ing been  sworn. 


428  HEARSAY  (Ch.  ^ 

of  Justice,  where  all  Things  were  determined  under  the  Solemnities 
of  an  Oath ;  Besides,  nothing  can  be  more  uncertain  than  the  loose 
and  wandering  witnesses  that  are  taken  upon  the  uncertain  Reports 
of  the  Talk  and  Discourse  of  others."  Chief  Baron  Gilbert,  Law  of 
Evidence  (4th  Ed.  1777)  p.  149. 


THE  KING  V.  PAINE. 

;Court  of  King's  Bench,  1696.    5  Mod.  163.) 

Information '  tried  at  the  bar  by  a  Bristol  jury,  against  one  Samuel 
Paine,  a  minister  there,  setting  forth,  that  the  defendant  was  the  com- 
poser, author,  and  publisher,  of  a  most  malicious  and  wicked  libel 
against  the  late  Queen  Mary,  which  was  styled  "Her  Epitaph." 

Upon  not  guilty  pleaded,  the  case,  upon  the  evidence,  appeared  to 
be  thus : 

Paine  wrote  the  libel,  it  being  dictated  to  him  by  another.  He  aft- 
erwards put  it  into  his  study,  and,  by  mistake,  delivered  it  to  one 
Brereton  instead  of  another  paper,  who  transmitted  a  copy  thereof, 
through  several  hands  to  the  Mayor  of  Bristol,  which  occasioned  the 
mayor  to  send  for  Brereton  to  examine  him,  which  he  did  upon 
oath,  but  not  in  the  presence  of  Paine.  The  defendant  Paine  was 
afterwards  examined  by  the  mayor,  and  confessed,  that  he  wrote  the 
libel,  but  that  he  did  neither  compose  or  publish  it,  but  only  delivered 
it,  instead  of  another  paper,  to  Brereton ;  but  it  was  proved,  by  his 
servant,  that  he  sent  him  to  his  study  for  a  writing,  and  that  he  not 
bringing  the  paper  sent  for,  the  said  Paine  fetched  it  himself,  and 
being  in  a  room  only  with  Dr.  Hoyle  the  libel  was  repeated,  but  he 
could  not  tell  by  whom ;  but  he  remembered  the  first  verse.  Brereton 
was  now  dead. 

The  question  was,  whether  his  depositions  taken  before  the  mayor 
should  be  given  in  evidence  at  this  trial  ? 

The  counsel  for  the  defendant  insisted,  that  it  could  not  be  done 
by  law,  because  Brereton  being  dead  the  defendant  had  lost  all  op- 
portunity of  cross-examining  him;  that  this  case  was  not  like  an  in- 
formation before  a  coroner,*  or  an  examination  by  justices  of  peace 

«  Part  of  case  omitted. 

*  Bromwlch's  Case,  1  Levlnz,  ISO  (1667) :  "The  Tvord  Morly  and  Broniwich 
heing  indicted  for  the  murther  of  llasthigs,  the  rx)rd  Morly  was  tried  hy  liis 
peers  before  the  Lord  High  Steward,  and  found  guilty  of  Manslaughter,  and 
was  dismissed  without  heing  put  to  his  Book,  or  burnt  in  the  Hand,  accord- 
ing to  the  Statute  of  1  E.  6,  c.  12.  And  now  Broniwich  being  brought  to  his 
trial  at  the  Bar  of  the  King's  Bench,  the  Indictment  was  against  the  Lord 
Morly  for  the  icilling  of  Hastings,  and  against  Bromwich  for  being  present, 
aiding  and  assisting;  and  'twas  proved  by  one  Witness,  That  the  Lord  Morly 
killed  Hastings,  but  that  at  the  same  time  they  were  lighting,  Bromwicii 
made  a  Thrust  at  Hastings,  and  thereupon  the  Lord  Morly  closed  with  him 
and  killed  him  ;  and  the  Depositions  of  two  other  WItnes.ses  taken  before  the 


Sec.  1)  THE   GENERAL   RULE  429 

of  persons  accused,  and  afterwards  committed  for  felony,  because 
they  have  power  by  a  particular  statute  ^  to  take  such  examination 
both  of  the  fact  and  circumstances,  and  to  put  it  in  writing  and  cer- 
tify it  at  the  next  general  gaol  deHvery.  But  depositions  of  this  nature 
are  never  allowed  to  be  read  as  evidence  in  a  civil  cause,  and  much  less 
in  a  criminal  case.®     *     *     ♦ 

The  Court  thereupon  sent  the  Puisne  Judge  to  confer  with  the 
Justices  of  the  Common  Pleas ;  who  returning,  the  Chief  Justice 
declared,  that  it  was  the  opinion  of  both  Courts  that  these  depositions 
should  not  be  given  in  evidence,  the  defendant  not  being  present  when 
they  were  taken  before  the  mayor,  and  so  had  lost  the  benefit  of  a 
cross-examination.^ 


BREEDON  V.  GILL. 

(Court  of  King's  Bench,  1697.     5  Mod.  272.) 

The  plaintiff  Breedon  suggests,  for  a  prohibition,  that  by  the  laws 
of  England,  when  an  issue  is  joined  between  the  parties  it  ought  to  be 
tried  by  the  evidence  of  witnesses  viva  voce,  and  not  by  notes  or  min- 
utes of  their  testimony  ;  that  an  information  was  exliibited  against  him, 
before  the  Commissioners  of  Excise,  setting  forth,  that  he  was  a 
common  brewer,  and  did  keep  a  private  storehouse  without  acquaint- 
ing the  said  commissioners  therewith ;  that  he  was  found  guilty ; 
and  that  he  appealed  from  their  sentence  to  the  Commissioners  of 
Appeals,  before  whom  the  informer  produced  as  evidence  the  minutes 
taken  before  the  Commissioners  of  Excise,  and  that  the  witnesses  who 
gave  evidence  there  were  still  alive ;  which  minutes  were  allowed  as 
evidence  by  the  Commissioners  of  Appeals,  etc. 

The  question  now  was.  Whether  a  prohibition  should  be  granted,  di- 
rected to  them,  not  to  admit  such  evidence  ?  ® 

Curia.  The  common  law  does  not  require,  that  witnesses  shall  be 
examined  viva  voce,  except  where  the  trial  is  by  jury.  These  dep- 
ositions were  taken  in  Court,  where  the  evidence  is  entered ;  and  when 
that  is  done,  the  party  has  nothing  to  do  but  to  appeal  from  an  injury 
supposed  to  be  done  by  an  Inferior  Court ;  and  it  is  very  fair  to  trans- 
mit that  evidence  which  was  given  before  them,  and  upon  which  they 
gave  their  judgment.     It  is  true,  they  would  have  the  Commissioners 

Coroner,  which  were  now  dead,  were  read  to  the  same  Effect,  as  they  were 
read  before  the  Lords  on  the  Trial  of  the  Lord  Morly,  by  the  Opinion  of  all 
the  Judges  of  England." 

B  1  &  2  P.  &  M.  c.  13 ;  2  &  3  P.  &  M.  c.  10. 

8  For  the  general  use  of  hearsay  in  criminal  trials  at  an  earlier  period,  see 
2  Wigmore,  §  1364. 

T  Ex  parte  affidavits  have  always   been  used  in  support  of  motions  and 
similar  applications.     Rex  v.  Joliffe,  4  Term  R.  292  (1791). 
s  Statement  condensed. 


430  HEARSAY  (Ch.  3 

of  Appeals  try  the  cause  de  novo,  which  is  contrary  to  the  very  nature 
of  an  appeal.  This  statute  directs,  "that  the  commissioners  shall  pro- 
ceed by  the  oath  of  witnesses,  or  the  confession  of  the  party."  And 
the  last  resort  is  in  the  Commissioners  of  Appeals,  if  they  do  not  med- 
dle with  what  is  out  of  their  jurisdiction;  which  is  not  the  complaint 
now,  but  only  of  the  course  and  method  of  the  proceedings.  The  case 
of  Shotter  v.  Friend,  1  Show.  172,  which  was  lately  adjudged  in  the 
Court  of  King's  Bench,  comes  near  this  case;  for  there  a  prohibition 
was  granted  to  the  Consistory  Court  of  the  Bishop  of  Winton  after 
sentence,  because  they  refused  to  allow  the  proof  of  a  payment  of  a 
legacy  by  one  witness.  But  a  prohibition  was  never  yet  granted  to 
any  Ecclesiastical  Court  for  proceeding  according  to  such  evidence  as 
is  allowed  by  the  common  law. 

For  which  reasons  nothing  was  done  at  this  time. 

But  after,  in  Easter  Term,  in  the  ninth  year  of  William  the  Third, 
upon  further  consideration,  a  prohibition  was  granted  quoad  the  ad- 
mitting of  the  depositions  taken  in  writing  before  the  Commissioners 
of  Excise,  for  the  Commissioners  of  Appeal  ought  to  examine  the 
witnesses  de  novo  on  the  appeal.* 


THE  OUEEN  v.  INHABITANTS  OF  LYDEARD  ST.  LAW- 
.  '^  RENCE. 

(Court  of  Queen's  Bench,  1841.    1  Gale  &  D.  191.) 

On  appeal  to  the  Somersetshire  sessions  against  an  order  for  the 
removal  of  Elizabeth  Winter  and  Emma  her  child,  from  the  parish  of 
Spaxton  in  the  county  of  Somerset,  to  the  parish  of  Lydeard  St.  Law- 
rence in  the  same  county,  as  the  place  of  the  last  legal  settlement  of 
William  Winter,  the  husband  of  the  said  Elizabeth,  the  sessions  con- 
firmed the  order  subject  to  the  opinion  of  this  Court  upon  the  following 
case : 

The  examination  of  William  Winter  the  younger,  the  husband  of 
the  pauper,  and  William  Winter,  the  father  of  the  pauper's  husband, 
upon  which  the  order  of  removal  was  made,  were  as  follows : 

"The  examination  of  William  Winter,  now  confined  in  Wilton  gaol 
in  the  said  county  for  felony,  taken  on  oath  before  me,  one  of  her 
Majesty's  justices  of  the  peace  acting  in  and  for  the  said  county,  this 
15th  day  of  July,  1840,  who  saith,  that  I  am  now  about  twenty-five 
years  old;  I  was  born  in  the  parish  of  Lydeard  St.  Lawrence,  as  I 
have  heard  and  believe ;  I  have  done  no  act  whereby  to  gain  a  legal 
settlement  on  my  own  account ;  about  January  last  I  was  removed  by 
an  order  of  removal  from  the  parish  of  North  Cadbury  in  the  said 
county  to  the  parish  of  Lydeard  St.  Lawrence  in  the  said  county,  the 

»  For  the  use  of  such  evidence,  where  the  witness  is  unavailnl)le  in  person, 
Bee  cases  in  the  next  section. 


Sec.  1)  THE   GENERAL   RULE  431 

last  legal  place  of  settlement  of  my  father  William  Winter,  as  I  have 
heard  and  believe ;  I  have  a  wife  named  Elizabeth,  and  one  child  named 
Emma,  aged  about  three  years  and  a  half. 

"Sworn  before  me,  F.  Warre.  William  Winter."  ^^ 

Lord  Denman,  C.  J.  *  *  *  The  second  question  is  to  the  suffi- 
ciency of  the  examination  in  setting  forth  the  place  of  the  pauper's 
birth-place.  It  is  said  that  the  only  objection  made,  and  intended  to 
be  made,  to  the  examination  in  this  respect,  is  that,  with  reference  to 
the  pauper,  who  speaks  as  to  his  birth-place,  being  a  felon  convict,  and 
so  incompetent  from  infamy,  the  fact  in  question  is  not  proved  on  cred- 
ible testimony,  and  that  the  objection,  therefore,  to  the  evidence,  as 
being  in  itself  hearsay,  comes  by  surprise  upon  the  respondents.  I 
think  the  word  "credible"  by  no  means  confines  the  notice  of  objection 
to  the  competency  of  the  pauper,  and  that  the  appellants  were  entitled 
to  go  into  the  objection,  that  the  evidence  as  to  the  birth  settlement  is 
entirely  hearsay.  That  objection  also  must  prevail,  and  the  nature  of 
the  iact  to  be  proved  does  not  make  this  an  excepted  case.  Early  recol- 
lection may  be  evidence  of  the  place  of  birth,  but  early  recollection  is 
not  the  evidence  set  forth,  but  merely  hearsay  and  belief.  *  *  * 
Order  quashed. 


COMMONWEALTH  v.  STEWART. 

(Supreme  Court  of  Pennsylvania,  1S15.     1  Serg.  &  R.  342.) 

The  questions  involved  in  this  case  arose  from  an  indictment  against 
the  defendant,  for  keeping  a  disorderly  house.  It  charged  him  with 
"keeping  a  disorderly  and  ill-governed  house,  and  unlawfully  causing 
and  procuring  for  his  own  lucre  and  gain,  certain  persons,  as  well  men 
as  women,  of  evil  name  and  fame,  and  of  dishonest  conversation,  to 
frequent  and  come  together  in  his  said  house,  at  unlawful  times,  as 
well  in  the  night  as  in  the  day,  permitting  them  there  to  be  and  remain, 
drinking,  tippling,  and  misbehaving  themselves  to  the  great  damage 
and  common  nuisance  of  all  the  leige  citizens  of  the  commonwealth 
there  inhabiting,  residing,  and  passing,  to  the  evil  example,  &c." 

On  the  trial  at  Nisi  Prius  before  Judge  Yeates,  in  January  last, 
Sarah  Bond,  a  witness  produced  on  the  part  of  the  prosecution,  after 
having  stated  several  matters  tending  to  show  that  the  defendant  kept 
a  disorderly  house,  was  asked  by  the  counsel  for  the  commonwealth, 
"whether  the  house  was  not  a  matter  of  general  complaint  by  the 
neighbours,  as  disturbing  them?"  The  counsel  for  the  defendant  ob- 
jected to  the  question,  but  the  court  permitted  it  to  be  put,  and  .reserved 
the  point. ^^ 

10  Statement  condensed  and  part  of  opinion  of  Lord  Denman,  C.  J.,  and 
concurring  opinions  of  Patteson,  Williams,  and  Coleridge,  JJ.,  omitted. 

11  Statement  condensed,  part  of  opinion  of  Tilgbman,  C.  J.,  and  pa*-!  of  dis- 
senting opinion  of  Yeates,  J.,  omitted. 


432  HEARSAY  (Ch.  3 

TiLGHMAN,  C.  J.  *  *  *  There  is  another  exception  to  be  consid- 
ered, relating  to  certain  evidence  admitted  on  tlie  trial.  Sarah  Bond, 
a  witness  for  the  commonwealth,  having  proved  several  facts,  tending 
to  show,  that  Stewart  kept  a  disorderly  house,  was  permitted  to  testify, 
"that  the  house  was  a  matter  of  general  complaint  by  the  neighbours, 
as  disturbing  them."  It  seems  that  the  gentlemen  who  prosecute  for 
the  commonwealth  have  been  in  the  habit  of  asking  questions  of  this 
kind.  But  the  practice  has  not  been  acquiesced  in,  and  is  now  brought 
before  this  court  for  decision.  It  is  agreed  on  all  hands,  that  this  is  not 
one  of  those  cases  in  which  hearsay  evidence  can  be  admitted.  But  it 
is  contended,  that  the  complaint  of  the  neighbourhood  is  a  matter  of 
fact,  and  therefore,  when  the  witness  proves  the  complaint,  she  only 
proves  a  fact  within  her  own  knowledge.  I  am  not  satisfied  with  this 
ingenious  distinction,  which  gets  round  and  avoids  an  important  rule 
of  evidence.  In  the  same  way  all  hearsay  evidence  may  be  introduced, 
for  it  is  always  a  fact,  that  die  witness  hears  the  other  person  speak, 
and  it  is  a  fact  that  the  words  spoken  by  that  person  were  heard  by 
che  witness.  But  what  is  the  consequence  of  receiving  testimony  of 
this  kind?  The  jury  are  influenced  by  declarations  not  made  upon  oath, 
and  the  adverse  party  is  deprived  of  the  benefit  of  cross-examining 
the  person  making  those  declarations.  Let  us  analyze  Mrs.  Bond's 
testimony.  "The  house  was  a  matter  of  general  complaint;"  that  is, 
'.lie  neighbours  said,  that  they  heard  noises  in  that  house  which  dis- 
turbed them.  But  we  have  only  their  words  for  that,  and  perhaps  they 
would  have  spoken  differently  upon  oath.  It  was  important  to  the 
defendant  to  be  permitted  to  ask  what  those  noises  were,  and  when 
they  were  heard,  that  he  might  have  an  opportunity  of  contradicting 
the  evidence,  or  explaining  the  nature  of  the  noise.  It  v/_as  important 
too,  to  know  who  those  neighbours  were,  that  their  character  might  be 
inquired  into.  And  why  should  they  not  be  produced  and  examined 
on  oath  ?  They  were  close  at  hand.  It  appears  to  me,  that  the  evidence 
amounted  to  no  more  than  the  general  reputation  of  a  disorderly  house, 
and  certainly  that  is  not  one  of  the  cases  in  which  general  reputation 
is  evidence.  I  am  of  opinion,  therefore,  that  a  new  trial  should  be 
granted. 

YeaTES,  J.  (dissenting).  The  principle  on  which  the  keeping  of  a 
disorderly  tippling  house  is  punishable  by  a  criminal  prosecution,  is, 
that  it  disturbs  the  peace  and  quiet  of  the  neighbourhood,  and  thereby 
becomes  a  common  nuisance.  In  the  course  of  this  trial,  Sarah  Bond, 
who  lived  across  the  street,  opposite  to  the  defendant's  house,  swore 
to  specific  disorderly  acts  committed  therein,  and  that  persons  of  bad 
repute,  old  and  young,  male  and  female,  black  and  white,  frequented 
it  both  by  night  and  day.  She  heard  fighting  no  less  than  nine  or  ten 
times  within  the  period  of  four  or  five  months,  the  cry  of  murder  is- 
sued from  the  house,  and  many  persons  were  collected  there.  She 
hcr.self  was  often  dislurbcd  by  these  noises.  On  the  part  of  the  prosecu- 
tion, she  was  asked,  whether  the  neighbours  did  not  generally  complain 


Sec.  1)  THE   GENERAL  RULE  433 

of  these  disturbances,  and  the  defendant's  counsel  objected  thereto. 
I  had  no  hesitation  in  permitting  the  question  to  be  asked,  considering 
these  complaints  as  independent  facts,  the  effects  springing  from  the 
causes  specially  detailed  by  the  witness.  No  hearsay  evidence,  of  any 
particular  disorders  committed  in  the  house,  was  admitted,  but  the 
effects  and  consequences  of  these  disorders  on  the  feelings  of  others, 
according  with  the  feelings  of  the  witness,  were  deemed  by  me  to  be 
proper  and  legal  testimony.  Expressions  of  general  uneasiness  at  the 
moment,  are  distinct  from  hearsay  evidence,  for  "out  of  the  abundance 
of  the  heart  the  mouth  speaketh."  I  do  not  view  these  general  com- 
plaints in  the  light  of  reputation  of  the  gross  irregularities  permitted 
by  the  defendant  in  his  house.  These  disorders  were  established  by  the 
oaths  of  eight  several  witnesses.  *  *  * 
New  trial  granted. 


BOYDEN  V.  MOORE. 

(Supreme  Judicial  Court  of  Massachusetts,  1831.     11  Plcli.  362.) 

Trespass  against  a  deputy  sheriff  for  taking  and  carrying  away  four 
horses,  a  wagon,  &c.  The  defendant  pleaded  the  general  issue,  and 
filed  a  brief  statement. 

At  the  trial  before  Putnam,  J.,  it  appeared,  that  the  chattels  were 
once  the  property  of  Charles  Boyden,  the  plaintiff's  son.  Both  parties 
claimed  under  Charles, — the  plaintiff',  by  virtue  of  a  transfer  from  him 
in  January,  1831,  and  the  defendant,  by  virtue  of  an  attachment  on 
mesne  process  in  favor  of  John  D.  Miles  against  Charles,  made  about 
a  week  after  the  transfer. 

To  prove  the  transfer  and  delivery  of  the  chattels,  the  plaintiff  in- 
troduced two  witnesses,  who  testified  that  they  were  called  to  witness 
the  sale  and  delivery,  and  that  Charles  said  to  the  plaintiff,  "take  the 
property,  do  the  best  you  can  with  it,  pay  yourself  and  pay  the  rest  to 
my  creditors." 

The  defendant  proved,  that  after  the  transfer,  and  on  the  same  eve- 
ning and  the  morning  following,  Charles  was  at  Brooks's  inn  in  Tem- 
pleton,  in  possession  of  the  property. 

The  plaintiff  then  offered  to  prove,  that  within  one  hour  after  the 
transfer,  he  directed  Charles  to  take  the  property  to  Brooks's  and  get 
Brooks  to  keep  it  at  the  plaintift*'s  expense,  and  that  the  next  morning 
the  plaintiff  went  to  Brooks  and  told  him  that  he  owned  the  property 
by  virtue  of  a  bill  of  sale,  and  that  he  would  pay  him  for  keeping  it. 
To  these  declarations  of  the  plaintiff  the  defendant  objected,  but  the 
judge  admitted  them  as  part  of  the  res  gestae. 

[A  verdict  was  found  for  the  plaintiff.  If  these  declarations  ought 
to  have  been  rejected  a  new  trial  was  to  be  granted.]  ^* 

12  Statement  condensed  and  part  of  opinion  omitted. 
HiNT.Ev.— 28 


434  HEARSAY  (Ch.  3 

Shaw,  C.  J.,  delivered  the  opinion  of  the  Court. 

The  horses,  the  property  in  controversy,  having  been  attached  as  the 
property  of  Charles  Boyden,  son  of  the  plaintiff,  by  a  process,  valid  as 
against  the  son,  by  the  defendant,  and  being  claimed  by  the  plaintiff 
under  an  assignment  prior  in  point  of  time,  the  question  is  upon  the 
validity  of  this  assignment.  The  fact  that  the  vendor  was  in  the  pos- 
session of  the  property,  after  the  assignment,  was  proper  evidence  to 
the  jury,  of  fraud  in  the  sale.  To  repel  the  conclusion  arising  from 
this  fact,  the  plaintiff  offered  evidence  to  show,  that  after  the  sale  he 
directed  his  son  to  take  the  horses  to  Brooks's  inn,  in  Templeton,  and 
get  the  horses  kept  at  his  expense,  and  that  he  himself  went  to  Brooks's 
the  next  day,  and  told  him  that  he  owned  the  horses,  by  virtue  of  a 
bill  of  sale,  and  would  pay  for  the  keeping  of  them.  This  was  ob- 
jected to  as  being  the  plaintiff's  own  declarations;  but  we  are  of  opin- 
ion, that  it  was  rightly  admitted,  not  as  proof  of  the  facts  alleged,  but 
as  part  of  the  res  gestae.^^  It  showed  that  he  was  incurring  expense, 
and  charging  himself  with  a  debt,  and  that  as  owner  and  principal,  in 
which  character  a  mere  parol  promise  was  binding,  not  as  a  surety  or 
guarantor  for  his  son,  which  would  have  required  a  promise  in  writing. 
It  tended  to  show  that  the  possession  and  acts  of  the  son,  were  those 
of  an  agent.  That  part  of  the  declarations,  in  which  he  said  that  he 
owned  the  horses  under  a  bill  of  sale,  was  made  immediately  after  the 
sale,  before  any  attachment  or  other  adverse  claim  intervened,  to  a 
person  having  the  custody  of  the  horses,  and  who  might  be  called  up- 
on for  information,  and  was  we  think  competent,  as  proof  of  notoriety, 
and  to  repel  the  suggestion  of  secrecy,  arising  from  the  fact  relied  up- 
on, that  notwithstanding  the  supposed  sale,  the  property  remained  in 
the  custody  of  the  vendor.  In  all  in  these  respects,  those  declarations 
were  acts  done,  and  were  competent  evidence  to  repel  the  charge  of 
fraud.     *     *     * 

Judgment  on  the  verdict. 

18  Bradley,  J.,  in  Bunk  v.  Kennedy,  17  Wall.  19,  21  L.  Ed.  554  (1S72): 
"  *  *  *  Like  tlie  loan,  the  purchase  of  the  stock  was  a  fact  accomplislied 
by  converi^ations  and  acts.  In  proving  this  fact  these  conversations  and  acts 
were  competent  evidence.  Conversations,  in  such  cases,  are  not  adduced  so 
much  to  prove  ulterior  facts  stated  therein  as  to  prove  the  conversations 
themselves  as  facts  constituting  part  of  the  transaction.  Hence  they  are  not 
hearsay,  but  original  evidence." 

The  above  quotation  Illustrates  one  of  the  many  meanings  or  uses  of  the 
unfortunate  phrase,  "res  gestae."  It  is  frequently  applied  to  hearsay  state- 
ments receivaiile  under  some  exception  to  the  hearsay  rule. — Ed. 


Sec.  1)  THE   GENERAL   RULB  435 

WRIGHT  V.  DOE  dem.  TATHAM. 
(Court  of  Exchequer  Chamber,  1837.     7  xVdol.  &  E.  313.) 

Error  from  the  Court  of  King's  Bench. 

Ejectment  for  the  manors  of  Hornby  and  Tatham,  (containing  re- 
spectively certain  lands,  which  were  described),  for  the  rectory,  &c.,  of 
Hornby,  and  for  other  lands  and  premises,  all  in  the  county  of  Lancas- 
ter. The  lessor  of  the  plaintiff  below  claimed  as  heir  at  law,  the  de- 
fendant below  as  devisee,  of  John  Marsden.  The  material  questions 
were,  whether  the  will  had  in  fact  been  executed,  and  whether,  assum- 
ing the  execution  to  be  proved,  John  Marsden  was,  at  the  time,  com- 
petent, in  point  of  understanding,  to  make  the  will. 

[The  objections  taken  on  behalf  of  the  defendant  relate  to  the  ad- 
missibility in  evidence  of  three  letters  ^*  addressed  to  the  testator  by 
persons  now  deceased,  well  acquainted  with  him  during  their  lives.] 

Parke,  B.^^  *  *  *  First,  then,  were  all  or  any  of  these  letters 
admissible  on  the  issue  in  the  cause  as  acts  done  by  the  writers,  assum- 
ing, for  the  sake  of  argument,  that  there  was  no  proof  of  any  act  done 
by  the  testator  upon  or  relating  to  these  letters  or  any  of  them, — that  is, 
would  such  letters  or  any  of  them  be  evidence  of  the  testator's  compe- 
tence at  the  time  of  writing  them,  if  sent  to  the  testator's  house  and 
not  opened  or  read  by  him? 

Indeed  this  question  is  just  the  same  as  if  the  letters  had  been  inter- 
cepted before  their  arrival  at  his  house ;  for,  in  so  far  as  the  writmg 
and  sending  the  letters  by  their  respective  writers  were  acts  done  by 
them  towards  the  testator,  those  acts  would  in  the  two  supposed  cases 
be  actually  complete.  It  is  argued  that  the  letters  would  be  admissible 
because  they  are  evidence  of  the  treatment  of  the  testator  as  a  compe- 
tent person  by  individuals  acquainted  with  his  habits  and  personal  char- 
acter, not  using  the  word  treatment  in  a  sense  involving  any  conduct 
of  the  testator  himself ;  that  they  are  more  than  mere  statements  to  a 
third  person  indicating  an  opinion  of  his  competence  by  those  persons ; 
they  are  acts  done  towards  the  testator  by  them,  which  would  not  have 
been  done  if  he  had  been  incompetent,  and  from  which,  tlierefore,  a  le- 
gitimate inference  may,  it  is  argued,  be  derived  that  he  was  so. 

Each  of  the  three  letters,  no  doubt,  indicates  that  in  the  opinion  of 
the  writer  the  testator  was  a  rational  person.  He  is  spoken  of  in  re- 
spectful terms  in  all.  Air.  Ellershaw  describes  him  as  possessing  hospi- 
tality and  benevolent  politeness ;  and  Mr.  Marton  addresses  him  as 
competent  to  do  business  to  the  limited  extent  to  which  his  letter  calls 
upon  him  to  act ;  and  there  is  no  question  but  that,  if  any  one  of  those 
writers  had  been  living,  his  evidence,  founded  on  personal  observation, 
that  the  testator  possessed  the  qualities  which  justified  the  opinion  ex- 
pressed or  implied  in  his  letters,  would  be  admissible  on  tliis  issue.    But 

1*  These  letters  were  excluded  at  the  trial. 
16  Part  of  opinion  omitted. 


436  HEARSAY  (Ch.  3 

the  point  to  be  determined  is,  whether  tliese  letters  are  admissible  as 
proof  that  he  did  possess  these  qualities? 

I  am  of  opinion  that,  according  to  the  established  principles  of  the 
law  of  evidence,  the  letters  are  all  inadmissible  for  such  a  purpose. 
One  great  principle  in  this  law  is,  that  all  facts  which  are  relevant  to 
the  issue  may  be  proved;  another  is,  that  all  such  facts  as  have  not 
been  admitted  by  the  party  against  whom  they  are  offered,  or  some 
one  under  whom  he  claims,  ought  to  be  proved  under  the  sanction  of 
an  oath,  (or  its  equivalent  introduced  by  statute,  a  solemn  affirmation,) 
either  on  the  trial  of  the  issue  or  some  other  issue  involving  the  same 
question  between  the  same  parties  or  those  to  whom  they  are  privy.  To 
this  rule  certain  exceptions  have  been  recognized;  some  from  very 
early  times,  on  the  ground  of  necessity  or  convenience ;  such  as  the 
proof  of  the  quality  and  intention  of  acts  by  declarations  accompany- 
ing them;  of  pedigrees,  and  of  public  rights  by  the  statement  of  de- 
ceased persons  presumably  well  acquainted  with  the  subject,  as  inhabit- 
ants of  the  district  in  the  one  case,  or  relations  within  certain  limits 
in  the  other.  Such  also  is  the  proof  of  possession  by  entries  of  de- 
ceased stewards  or  receivers  charging  themselves,  or  of  facts  of  a 
public  nature  by  public  documents ;  within  none  of  which  exceptions  is 
it  contended  that  the  present  case  can  be  classed. 

That  the  three  letters  were  each  of  them  written  by  the  persons 
whose  names  they  bear,  and  sent,  at  some  time  before  they  were  found, 
to  the  testator's  house,  no  doubt  are  facts,  and  those  facts  are  proved 
on  oath ;  and  the  letters  are  without  doubt  admissible  on  an  issue  in 
which  the  fact  of  sending  such  letters  by  those  persons,  and  within  that 
limit  of  time,  is  relevant  to  the  matter  in  dispute ;  as,  for  instance,  on 
a  feigned  issue  to  try  the  question  whether  such  letters  were  sent  to  the 
testator's  house,  or  on  any  issue  in  which  it  is  the  material  question 
whether  such  letters  or  any  of  them  had  been  sent.  Verbal  declara- 
tions of  the  same  parties  are  also  facts,  and  in  like  manner  admissible 
under  the  same  circumstances ;  and  so  would  letters  or  declarations  to 
third  persons  upon  the  like  supposition. 

But  the  question  is,  whether  the  contents  of  these  letters  are  evidence 
of  the  fact  to  be  proved  upon  this  issue, — that  is,  the  actual  existence 
of  the  qualities  which  the  testator  is,  in  those  letters,  by  implication, 
stated  to  possess:  and  those  letters  may  be  considered  in  this  respect 
to  be  on  the  same  footing  as  if  they  had  contained  a  direct  and  positive 
/Statement  that  he  was  competent.  For  this  purpose  they  are  mere  hear- 
say evidence,  statements  of  the  writers,  not  on  oath,^®  of  the  truth  of 

loColtrnan,  .7.,  in  same  case:  "Now,  admitting  tliat  this  is  a  question  of 
opinion  and  judKinent,  we  may  aslt,  how  is  niattcr  of  opinion  required  I).v  tho 
law  of  England  to  l)e  proved?  Tlie  general  rule  is,  tliat  it  is  to  be  proved  by  the 
examination  of  witnesses  upon  oath.  The  administt-ring  of  an  oiilh  furnislii's 
I  some  guarantee  for  the  sincerity  of  the  opinion;  and  tlie  power  of  cross- 
i  e.xandnation  gives  an  opportunity  of  testing  the  foundation  and  the  value  of 
It.  Such  Iteing  the  general  rule,  it  is  necessary  for  the  party  who  brings 
forward  evidence  not  on  oath  to  sliow  some  recognized  exception  to  the  gen- 
eral rule,  within  which  it  fall.s." 


Sec.  1)  THE   GENERAL   RULE  437 

the  matter  in  question,  with  this  addition,  that  they  have  acted  upon  the 
statements  on  the  faith  of  their  being  true,  by  their  sending  the  letters 
to  the  testator.  That  the  so  acting  cannot  give  a  sufficient  sanction  for 
the  truth  of  the  statement,  is  perfectly  plain ;  for  it  is  clear  that,  if  the 
same  statements  had  been  made  by  parol  or  in  writing  to  a  third  per- 
son, that  would  have  been  insufficient;  and  this  is  conceded  by  the 
learned  counsel  for  the  plaintiff  in  error.  Yet  in  both  cases  there  has 
been  an  acting  on  the  belief  of  the  truth,  by  making  the  statement,  or 
writing  and  sending  a  letter  to  a  third  person ;  and  what  difference  can 
it  possibly  make  that  this  is  an  acting  of  the  same  nature  by  writing 
and  sending  the  letter  to  the  testator  ?  It  is  admitted,  and  most  proper- 
ly, that  you  have  no  right  to  use  in  evidence  the  fact  of  writing  and 
sending  a  letter  to  a  third  person  containing  a  statement  of  competence, 
on  the  ground  that  it  affords  an  inference  that  such  an  act  would  not 
have  been  done  unless  the  statement  was  true,  or  believed  to  be  true, 
although  such  an  inference  no  doubt  would  be  raised  in  the  conduct 
of  the  ordinary  affairs  of  life,  if  the  statement  were  made  by  a  man 
of  veracity.  But  it  cannot  be  raised  in  a  judicial  inquiry;  and,  if  such 
an  argument  were  admissible,  it  would  lead  to  the  indiscriminate  ad- 
mission of  hearsay  evidence  of  all  manner  of  facts. 

Further,  it  is  clear  that  an  acting  to  a  much  greater  extent  and  de- 
gree upon  such  statements  to  a  third  person  would  not  make  the 
statements  admissible.  For  example,  if  a  wager  to  a  large  amount 
had  been  made  as  to  the  matter  in  issue  by  two  third  persons,  the 
payment  of  that  wager,  however  large  the  sum,  would  not  be  admissi- 
ble to  prove  the  truth  of  the  matter  in  issue.  You  would  not  have  had 
any  right  to  present  it  to  the  jury  as  raising  an  inference  of  the  truth 
of  the  fact,  on  the  ground  that  otherwise  the  debt  would  not  have 
been  paid.  It  is,  after  all,  nothing  but  the  mere  statement  of  that  fact, 
with  strong  evidence  of  the  belief  of  it  by  the  party  making  it.  Could 
it  make  any  difference  that  the  wager  was  between  the  third  person 
and  one  of  the  parties  to  the  suit?  Certainly  not.  The  payment  by 
other  underwriters  on  the  same  policy  to  the  plaintiff  could  not  be  giv- 
en in  evidence  to  prove  that  the  subject  insured  had  been  lost.  Yet 
there  is  an  act  done,  a  payment  strongly  attesting  the  truth  of  the  state- 
ment, which  it  implies,  that  there  had  been  a  loss.  To  illustrate  this 
point  still  further,  let  us  suppose  a  third  person  h^d  betted  a  wager 
with  Mr.  Marsden  that  he  could  not  solve  some  mathematical  problem, 
the  solution  of  which  required  a  high  degree  of  capacity ;  would  pay- 
ment of  that  wager  to  Mr.  Marsden's  banker  be  admissible  evidence 
that  he  possessed  that  capacity  ?  The  answer  is  certain ;  it  would  not. 
It  would  be  evidence'  of  the  fact  of  competence  given  by  a  third  party 
not  upon  oath. 

Let  us  suppose  the  parties  who  wrote  these  letters  to  have  stated  the 
matter  therein  contained,  that  is,  their  knowledge  of  his  personal  qual- 
ities and  capacity  for  business,  on  oath  before  a  magistrate,  or  in  some 
judicial  proceeding  to  which  the  plaintiff'  and  defendant  were  not  par- 


438  HEARSAY  '      (Ch.  3 

ties.  No  one  could  contend  that  such  statement  would  be  admissible 
on  this  issue ;  and  yet  there  would  have  been  an  act  done  on  the  faith 
of  the  statement  being  true,  and  a  very  solemn  one,  which  would  raise 
in  the  ordinary  conduct  of  affairs  a  strong  belief  in  the  truth  of  the 
statement,  if  the  writers  were  faith-worthy.  The  acting  in  this  case  is 
of  much  less  importance,  and  certainly  is  not  equal  to  the  sanction  of 
an  extra  judicial  oath. 

Many  other  instances  of  a  similar  nature,  by  way  of  illustration, 
were  suggested  by  the  learned  counsel  for  the  defendant  in  error, 
which,  on  the  most  cursory  consideration,  any  one  would  at  once  de- 
clare to  be  inadmissible  in  evidence.  Others  were  supposed  on  the 
part  of  the  plaintiff  in  error,  which,  at  first  sight,  have  the  appearance 
of  being  mere  facts,  and  therefore  admissible,  though  on  further  con- 
sideration they  are  open  to  precisely  the  same  objection.  Of  the  first 
description  are  the  supposed  cases  of  a  letter  by  a  third  person  to  any 
one  demanding  a  debt,  which  may  be  said  to  be  a  treatment  of  him  as 
a  debtor,  being  offered  as  proof  that  the  debt  was  really  due ;  a  note 
congratulating  him  on  his  high  state  of  bodily  vigour,  being  proposed 
as  evidence  of  his  being  in  good  health ;  both  of  which  are  manifestly 
at  first  sight  objectionable.  To  the  latter  class  belong  the  supposed 
conduct  of  the  family  or  relations  of  a  testator,  taking  the  same  pre- 
cautions in  his  absence  as  if  he  were  a  lunatic;  his  election,  in  his  ab-' 
sence,  to  some  high  and  responsible  ofiice ;  the  conduct  of  a  physician 
who  permitted  a  will  to  be  executed  by  a  sick  testator;  the  conduct 
of  a  deceased  captain  on  a  question  of  seaworthiness,  who  after  ex- 
amining every  part  of  the  vessel,  embarked  in  it  with  his  family;  all 
these,  when  deliberately  considered,  are,  with  reference  to  the  matter 
m  issue  in  each  case,  mere  instances  of  hearsay  evidence,  mere  state- 
ments, not  on  oath,  but  implied  in  or  vouched  by  the  actual  conduct  of 
persons  by  whose  acts  the  litigant  parties  are  not  to  be  bound. 
I  The  conclusion  at  which  I  have  arrived,  is,  that  proof  of  a  particu- 
lar fact,  which  is  not  of  itself  a  matter  in  issue,  but  which  is  relevant 
only  as  implying  a  statement  or  opinion  of  a  third  person  on  the  mat- 
ter in  issue,  is  inadmissible  in  all  cases  where  such  a  statement  or  opin- 
ion, not  on  oath,  would  be  of  itself  inadmissible ;  and,  therefore,  in 
this  case  the  letters  which  are  offered  only  to  prove  the  competence  of 
the  testator,  that  is,  the  truth  of  the  implied  statements  therein  con- 
tained, were  properly  rejected,  as  the  mere  statement  or  opinion  of 
the  writer  would  certainly  have  been  inadmissible.  It  is  true  that  evi- 
dence of  this  description  has  been  received  in  the  Ecclesiastical  Courts. 
But  their  rules  of  evidence  are  not  the  same  in  -all  respects  as  ours. 
Some  greater  laxity  may  be  permitted  in  a  Court  which  adjudicates 
both  on  the  law  and  on  the  fact,  and  may  be  more  safely  trusted  with 
the  consideration  of  such  evidence  than  a  jury;  and  I  would  observe, 
also,  that  in  no  instance  has  the  propriety  of  the  reception  of  it  even 
in  the  spiritual  Courts  been  confirmed  by  the  Court  of  Delegates.     I 


Sec.  1)  THE   GENERAL   RULE  439 

do  not  think,  therefore,  that  we  are  bound  by  the  authority  of  the  cases 
referred  to  in  the  Ecclesiastical  Courts. 

The  next  question  is,  whether  there  is  any  evidence  of  an  act  done 
with  reference  to  these  three  letters,  or  any  of  them,  to  render  their  con- 
tents admissible  by  way  of  explaining  that  act.  I  am  clearly  of  opinion 
that  none  of  them  were  admissible  on  this  ground.     *     *     * 

Affirmed. 


PARRIS  V.  JENKINS. 
(Court  of  Appeals  of  South  Carolina,  1845.    2  Rich.  106.) 

This  was  an  action  of  trover  for  a  negro  woman,  Emily,  and  her 
three  children.    The  question  was  as  to  the  title. 

The  negroes  originally  belonged  to  the  plaintiff.  In  1837  the  de- 
fendant married  the  plaintiff's  daughter,  and  in  1838  Emily  and  her 
children  went,  in  some  way  unexplained,  into  his  possession.  The 
plaintiff'  and  defendant  lived  fourteen  miles  apart.  In  March,  1841, 
Emily,  with  her  children,  was  brought  by  a  servant  of  the  plaintiff 
in  a  wagon  from  the  defendant's  to  the  plaintiff's.  They  remained 
at  the  plaintiff's  about  two  months,  and  then  returned  to  the  defend- 
ant's. A  witness  for  the  defendant  testified  that,  in  the  spring  of  1841, 
when  the  wagon  of  the  plaintiff  was  brought  to  the  defendant's  for 
Emily,  the  driver,  a  negro  of  the  plaintiff,  told  the  defendant  that  his 
master  had  sent  for  Emily  to  help  a  little  while  about  his  crop,  as  he 
was  backward.  This  statement  of  the  negro  was  objected  to,  but  his 
Honor  held  that  it  was  admissible,  as  a  part  of  the  res  gestae,  explan- 
atory of  the  defendant's  act  in  sending  Emily  when  she  was  sent  for. 

A  good  deal  of  other  testimony  was  introduced  on  both  sides,  which 
left  it  very  doubtful  whether  the  negroes  went  into  the  defendant's 
possession  as  a  gift,  or  as  a  loan.  The  case  was  submitted  to  the  jury, 
who  found  for  the  defendant. 

The  plaintiff  appealed,  on  the  ground,  inter  alia,  that  the  declarations 
of  the  negro  who  went  for  Emily  were  incompetent  as  evidence  of  the 
message  actually  sent  by  the  plaintiff. 

Curia,  per  Wardlaw,  J.  Evidence  of  the  message  delivered  by  the 
negro  driver  was  received,  not  to  shew  that  such  message  was  sent, 
but  to  explain  the  defendant's  act  in  sending  the  woman,  and  rebut  the 
presumption  unfavorable  to  his  rights  that  might  have  arisen  from 
that  act  unexplained.  Parris  may  have  not  put  those  words  into  the 
negro's  mouth,  but  the  negro  used  them ;  and  were  they  not  calculated 
to  produce  an  effect  upon  Jenkins?  It  is  just  as  if  Jenkins,  adopting 
the  words  of  the  negro,  had  said,  when  he  sent  the  woman — "I  send 
her  to  help  a  little  while,  because  my  father-in-law  is  backward ;"  and 
so  these  words  are  part  of  the  res  gestae — an  explanation  by  contem- 
poraneous acts  or  declarations  of  the  motives  or  objects  of  the  principal 
act,  which  would  otherwise  be  of  ambiguous  or  contrary  import.    The 


440  HEARSAY  (Ch.  3 

jWords  of  a  negro  are  at  least  as  significant  as  the  cry  of  a  brute  ani- 
mal, or  any  sound  proceeding  from  inanimate  substances ;  and  if  any 
'sound  whatever,  cotemporaneous  with  an  act,  or  nearly  connected  with 
flt,  might  serve  to  give  meaning  to  the  act,  it  would  be  admissible,  not 
bnly  to  shew  that  there  was  such  sound,  but,  if  important,  as  nearly 
'as  possible  to  describe  it.  We  all  daily  begin  and  quit  and  change  oc- 
cupation, command  and  countermand,  resolve  and  act,  according  to  in- 
formation received  from  negroes ;  it  would  be  impossible  for  us  to  ex- 
plain our  conduct  without  reference  to  the  fact  that  such  information 
was  given;  and  it  would  be  often  unjust,  if  an  act  should  be  proved 
against  us,  and  we  should  not  be  permitted  to  shew,  by  the  same  or 
some  other  witness,  what  was  said  which  would  explain  the  act.  The 
jury  were  distinctly  told  that  the  words  of  the  negro  were  not  to  be 
taken  as  evidence  of  the  truth  of  what  he  said,  but  only  as  a  circum- 
stance to  be  considered  in  weighing  the  effect  to  be  given  to  the  act 
immediately  following  them.  If  the  jury  have  given  to  the  evidence  an 
influence  it  should  not  have  had,  that  is  but  an  ordinary  misfortune 
necessarily  incident  to  jury  trials.  We  cannot  know  the  process  by 
which  the  jury  have  attained  their  conclusion,  but  must  suppose  that, 
being  properly  instructed,  they  have  done  their  duty.  Motion  dis- 
missed. 
O'Neall,  Evans,  ButlSR  and  Frost,  JJ-,  concurred.^' 

17  See,  also,  People  v.  Wood,  126  N.  Y.  249,  27  N.  E.  362  (1891),  to  the  ef- 
fect that  it  was  competent  for  the  defendant  to  prove  that  his  wife  told  him 
that  an  outrage  had  been  perpetrated  upon  her,  upon  the  theory  of  a  shock 
producing  mental  derangement. 

In  Hurst  v.  State,  101  Miss.  402,  58  South.  206  (1912),  it  was  held  that  a 
defendant,  charged  with  carrying  concealed  weapons,  might  prove  that  it  had 
been  reported  to  him  that  a  third  person  had  threatened  his  life,  though  the 
party  communicating  the  information  had  no  personal  knowledge  that  the 
threat  had  actually  been  made.     See  also  dissenting  opinion  in  same  case. 

Quite  a  distinct  problem  may  arise  as  to  whether  one  may  reasonably  act 
upon  information  which  does  not  come  to  him  at  first  hand.  rx>rd  Chancel- 
lor Hatherly  in  Lister  v.  Ferryman,  (L.  R.)  4  Eng.  &  Ir.  App.  Cases  521  (1870): 
"I  think  he  was  justified  in  acting  upon  that  information  so  given ;  for  un- 
less that  was  so  there  would  arise  this  inconvenience,  that  you  could  not 
trust  to  the  information  you  derived  from  your  own  attorney,  when,  for 
example,  you  employ  him  to  go  down  into  the  country  and  inquire  into  a 
matter;  and  unless  your  own  attorney  had  brought  to  you  the  witnesses 
whom  he  went  down  to  see,  in  order  to  ascertain  and  examine  into  the  state 
of  the  case,  you  could  hardly  justify  yourself  as  having  acted  upon  reason- 
able and  probable  cause.  In  this  particular  case  the  information  was  given 
by  the  coachman,  who  appears  to  have  had  charge  of  the  gun  to  a  certain 
extent,  for  it  was  kept  in  the  part  of  the  premises  that  he  had  to  deal  with ; 
it  was  given  after  inquiry  by  him  into  the  subject  matter,  and  after  a  delib- 
erate Interview  In  order  to  justify  him  in  judging  how  far  Rol)inson  was  a 
trustworthy  person.  I  think,  after  that,  if  we  were  to  say  tliat  the  master 
was  not  justified  in  acting  upon  such  information  because  he  might  have  gone 
farther.  It  would  be  very  diflicult  to  draw  the  line  so  that  it  would  not  apply 
to  a  case  where  a  person  was  endeavoring  to  act  simply  upon  such  informa- 
tion as  others,  whether  his  attorney  or  a  friend,  could  collect  for  him,  prob- 
ably better  than  he  was  able  to  collect  it  himself." 


Sec.  1)  THE   GENERAL  RULE  441 

STATE  V.  WENTWORTH  et  al. 
(Supreme  Judicial  Court  of  New  Hampsliire,  1858.     37  N.  H,  196.) 

Indictment  for  placing  obstructions  upon  the  track  of  a  rail- 
road.    *     *     * 

The  State  introduced  evidence  of  the  declarations  of  (the  defend- 
ant) Wentworth,  as  to  where  he  was  and  how  he  was  employed  on 
said  evening,  and  then  introduced  evidence  tending  to  show  the  falsity 
of  said  declarations;  among  which  was  the  statement  of  Wentworth, 
that  he  went  to  Salmon  Falls  nn  that  evening,  in  company  with  a  man 
named  William  Hasty,  who,  as  he,  Wentworth,  stated,  lived  at  Salmon 
Falls,  and  that  he  did  business  with  him  there  on  that  evening.  •  The 
State  then  proved  by  William  Drury,  that  he,  Drury,  went  to  Salmon 
Falls  after  Wentworth  had  so  stated,  and  made  inquiries  in  various 
places,  and  of  many  persons  there,  for  a  man  of  that  name,  and  could 
obtain  no  information  of  such  person.  To  this  the  defendants  object- 
ed, but  it  was  admitted.^* 

Eastman,  j.  *  *  *  The  next  question  raised  was  as  to  the  ad- 
missibility of  the  testimony  of  the  witness  Drury. 

There  is  no  rule  of  evidence  better  established  than  that  hearsay 
is  not  competent  testimony.  But  it  does  not  follow  that,  because  the 
words  in  question  are  those  of  a  third  person,  they  are  necessarily 
hearsay.  On  the  contrary,  it  happens,  in  many  cases,  that  the  very 
fact  in  controversy  is,  whether  such  things  were  spoken,  and  not  wheth- 
er they  are  true.  Thus,  replies  given  to  inquiries  made  at  the  residence 
of  an  absent  witness,  or  at  the  dwelling-house  of  a  bankrupt,  denying 
that  he  was  at  home,  are  original  evidence.  So  to  establish  the  death 
of  a  party,  inquiries  at  the  place  of  his  last  residence  or  among  his 
relatives,  and  the  answers  are  competent.  2  Greenl.  on  Ev.  §  278; 
Emerson  v.  White,  29  N.  H.  (9  Fost.)  482.  In  these  and  the  like  cases 
it  is  not  necessary  to  call  the  persons  to  whom  the  inquiries  were  ad- 
dressed, since  their  testimony  could  add  nothing  to  the  credibility  of 
the  fact  of  the  denial.  Wherever  the  fact  that  such  communications 
were  made  is  the  point  in  controversy,  the  evidence  is  admissible.  1 
Greenl.  on  Ev.  §§  100,  101. 

Drury  did  not  pretend  to  testify  what  the  persons  of  whom  he  made 
inquiries  said  to  him,  but  simply  stated  the  fact  of  his  ineffectual  effort 
to  obtain  information.  That  was  all  that  was  attempted  to  be  proved 
by  him ;  and  had  the  persons  of  whom  he  sought  to  obtain  the  infor- 
mation been  called  as  witnesses,  they  could,  upon  this  point — the  point 
of  his  seeking  information— only  have  testified  that  Drury  made  the 
inquiries  and  failed  to  obtain  information,  which  is  all  he  has  testi- 
fied to.  They  might  have  gone  further,  and  testified  that  they  never 
knew  or  heard  of  such  a  man  as  flasty.     The  evidence  in  both  in- 

18  Statement  condensed  and  part  of  opinion  omitted. 


442  HEARSAY  (Ch,  3 

stances  would  be  similar,  and  negative  in  its  character,  and  entitled  to 
more  or  less  weight  according  to  the  means  of  observation  and  knowl- 
edge that  the  witnesses  might  have.  In  both  instances  it  would  be  the 
evidence  of  a  fact,  the  result  of  more  or  less  of  knowledge,  but  not  the 
rehearsal  of  what  others  had  said.  And  upon  this  view,  which  was  the 
one  taken  by  the  court  at  the  trial,  we  think  the  evidence  was  adinis- 
sible.     *     *     * 

Judgment  on  the  verdict.^' 


HAYES  V.  PITTS-KIMBALL  CO. 
(Supreme  Judicial  Court  of  Massachusetts,  1903.    183  Mass.  262,  67  N.  E.  249.) 

Knowlton,  C.  J.^°  This  is  an  action  to  recover  for  an  injury  to 
the  plaintiff's  intestate,  a  boy  five  years  of  age,  which  caused  his  death 
a  few  hours  afterwards.  The  declaration  is  in  two  counts — ^ne,  to  re- 
cover the  damages  of  the  deceased  from  conscious  suffering  before 
his  death ;  and  the  other,  to  recover,  under  St.  1898,  p.  724,  c.  565 
(Rev.  Laws,  c.  171,  §  2),  for  his  death. 

The  first  exception  relates  to  the  admission  of  evidence.  The  plain- 
tiff was  allowed  to  introduce  the  statements  of  the  deceased  in  conver- 
sation at  different  times  after  the  accident,  for  the  purpose  of  showing 
that  he  was  conscious.  We  have  no  doubt  that  this  testimony  was 
competent.  His  remarks  were  verbal  acts  which  tended  to  show  his 
condition.  The  evidence  was  limited  by  the  judge  strictly  to  this  pur- 
pose, and  it  was  not  of  a  kind  that  bore  upon  other  issues  in  the  case. 
The  principle  on  which  its  admission  rests  is  well  established.  Hatch 
V.  Fuller,  131  Mass.  574;  Com.  v.  Jardine,  143  Mass.  567,  10  N.  E. 
250;  Lane  v.  Moore,  151  Mass.  87,  23  N.  E.  828,  21  Am.  St.  Rep. 
430;  Shailer  v.  Bumstead,  99  Mass.  112;  Earle  v.  Earle,  11  Allen, 
2      *     *     * 

Exceptions  overruled. 

18  See.  also,  Atty.  Gen.  v.  Good,  McCleland  &  Younge  286  (1825). 
2  0  Statement  and  part  of  opinion  omitted. 


Sec.  2)  EECOGMZED   EXCEPTIONS  443 

SECTION  2.— RECOGNIZED  EXCEPTIONS  " 
I.  Reported  Testimony  "^"^ 


FRAUNCES  V.  SHOTBOLT. 

(Court  of  King's  Bench,  1631.     2  Rolle,  211.) 

Fraunces  brought  an  action  of  debt  for  tithes,  upon  which  they  were 
at  issue,  and  the  case  was  this : 

The  tithes  were  let  to  one  Fraunces  for  life,  with  remainder  for 
life  to  the  plaintiff ;  upon  a  trial  for  tithes  by  the  first  lessee  for  life, 
divers  witnesses  were  examined,  who  had  since  died. 

And  now  upon  this  trial.  Sir  Lawrence  Hyde  prayed  that  those  \yit- 
nesses,  who  were  examined  on  the  trial  of  the  first  tenant  for  life, 
might  be  witnesses  for  him  in  remainder. 

It  was  agreed  by  all  the  judges,  except  Dodridge,  that  the  witnesses 
who  had  been  examined  by  the  tenant  for  life  were  not  witnesses  for 
him  in  remainder,  because  he  should  have  been  made  a  party  to  it, 
otherwise  his  interest  should  not  be  prejudiced,  not  being  a  party. 
And  Chamberlain,  J.,  said  that  Chancellor  Egerton  held  this  as  a  con- 
stant rule,  Dodridge,  J.,  agreeing,  that  the  tenant  for  life  and  the  re- 
mainderman have  all  one  estate,  and  therefore  it  seemed  that  these 
witnesses  who  were  examined  for  the  first  lessee  for  life,  as  it  was  the 
same  title,  might  be  witnesses  for  the  remainderman. 


MAYOR  OF  DONCASTER  v.  DAY. 

(Court  of  Common  Pleas,  1810.    3  Taunt.  262.) 

This  was  an  action  of  trespass,  brought  by  the  mayor  and  corporation 
of  Doncaster,  to  try  whether  the  public  had  a  right  to  pass  with  goods 
from  ships  lying  in  their  river,  over  a  bank  at  a  place  called  Docking- 
Hill,  which  the  plaintiffs  claimed  to  be  their  soil  and  freehold,  in  order* 

21  For  certain  statutory  exceptions  to  the  hearsay  rule  in  proceedings  un-  / 
der  Workmen's  Compensation  Acts,  see  Carroll  v.  Knickerbocker  Ice  Co.,  218 
N.  Y.  435,  113  N.  E.  507,  Ann.  Cas.  1918B,  540  (1916). 

2  2  Whether  the  admission  of  former  testimony  or  of  depositions  is  to  be  re- 
garded as  a  true  exception  to  the  hearsay  rule  seems  to  depend  on  whether 
the  normal  requirement  that  testimony  be  given  viva  voce  in  open  court  is 
an  essential  part  of  the  rule,  a  matter  impossible  to  settle.  At  any  rate, 
there  is  no  controversy  about  the  fact  that  in  common-law  courts  the  personal 
presence  of  the  wituess  was  required,  but  if  that  could  not  be  had  because  of 
death  or  insanity,  his  former  testimony  might  be  received  under  certain  con- 
ditions. 


444  HEARSAY  (Ch.  3 

to  cart  the  goods  upon  a  highway  lying  beyond  the  bank,  and  parallel 
to  the  river:  the  same  plaintiffs  had  commenced  other  actions  for  the 
like  cause,  against  other  defendants.  They  had  proceeded  to  trial  in 
this  cause;  and  the  verdict  being  adverse  to  the  corporation,  and  re- 
pugnant to  the  weight  of  the  evidence,  upon  an  application  for  a  new 
trial,  the  court  had  directed  that  this  cause  should  abide  the  event  of 
the  verdict  in  another  of  the  causes,  which  was  in  progress  for  trial. 

Clayton,  Serjt.,  on  this  day  prayed,  on  behalf  of  the  plaintiffs,  that 
if  any  of  the  witnesses,  many  of  whom  were  very  aged,  should  die,  or 
become  unable  to  attend  in  the  mean  time,  their  evidences  given  upon 
the  former  occasion  might  be  read  at  the  next  trial. 

Mansfield,  C.  J.  You  do  not  want  a  rule  of  court  for  that  pur- 
pose :  what  a  witness,  since  dead,  has  sworn  upon  a  trial  between  the 
same  parties,  may,  without  any  order  of  the  court,  be  given  in  evidence, 
either  from  the  judge's  notes,  or  from  notes  that  have  been  taken  by 
any  other  person,  who  will  swear  to  their  accuracy;  or  the  former 
evidence  may  be  proved  by  any  person  who  will  swear  from  his  mem- 
ory to  its  having  been  given. 

Heath,  J.,  concurred  in  refusing  the  application.^' 

2  3  Prentice,  C.  J.,  in  Atwood  v.  Atwood,  86  Conn.  579,  86  Atl.  29,  Ann.  Cas. 
1914B,  281  (1913):  "The  plaintiffs  assign  as  error  tlie  admission  upon  the  of- 
fer of  the  defendant  of  a  deposition  used  upon  the  former  trial  of  the  de- 
fendant Mary  J.  Atwood,  who,  it  appeared,  was  living  and  within  the  juris- 
diction of  the  court,  but  mentally  incompetent.  There  is  no  distinction  be- 
tween a  deposition,  and  former  testimony  given  in  court,  as  to  the  principles 
to  be  applied.  2  Wigmore  on  Evidence,  §  1408.  In  each  case  the  controlling 
test  is:  Can  the  witness'  knowledge  be  utilized  by  other  means?  If  not,  the 
use  of  the  former  testimony,  other  conditions  in  respect  to  it  being  met,  is 
justified  in  the  interest  of  justice  by  the  necessity  of  the  situation.  It  is  the 
best  evidence  of  which  the  case  admits.  The  death  or  absence  from  the  ju- 
risdiction of  the  witness  has  frequently  furnished  the  occasion  for  the  intro- 
duction of  his  former  testimony.  Situations  where  the  knowledge  of  the 
witness  has  liecome  unavailable  by  reason  of  his  mental  incompetency  have 
been  less  frequont ;  but  the  authorities  are  in  general  accoi-d  in  taking  the 
only  logical  and  just  position  that  they  come  under  the  sanae  rule.  2  Wig- 
more  on  Evidence,  §§  1402,  1408;  1  Greenleaf  on  Evidence,  §  163;  Regiua  v. 
Marshall,  Carr.  &  M.  147,  148  [1841] ;  Whitaker  v.  Marsh,  62  N.  H.  477,  478 
L1883];  Howard  v.  Patrick,  38  Mich.  795,  799  [1878];  Rothrock  v.  Gallaher, 
91  Pa.  lOS,  112  [1879].  'There  is  no  real  or  practical  difEerence  between  the 
death  of  the  mind  and  the  death  of  the  body.'  Marler  v.  State,  67  Ala.  55, 
65  [42  Am.  Rep.  95  (1880)]." 

The  statement  of  Justice  Prentice  that  there  is  no  difference  in  principle 
between  a  deposition  and  testimony  on  a  former  trial  must  Ix^  understood 
with  this  qualitiiation:  TTiat  modern  statutes  frequently  authorize  the  read- 
ing of  a  deposition  under  conditions  which  would  not  have  admitted  former 
testimony  at  common  law. 

llie  courts  have  refused  to  extend  the  analogy  of  death  or  insanity  to  the 
case  of  a  witness  who  has  simply  forgotten  the  facts  to  which  he  formmiy 
testified.  Robiu.son  v.  Oilman,  43  N.  H.  295  (1861) ;  Drayton  v.  Wells,  1  Nott 
&  McC.  (S.  C.)  409,  9  Am.  Dec.  718  (1819). 

There  is  some  difference  of  opinion  as  to  other  situations  rendering  tlie 
witness  unavailable,  such  as  the  sickness  or  alisence  of  the  witness  from  the 
jurisdiction,  or  tlie  Inability  of  the  party  to  find  the  witness. 

Marston,  J.,  in  Howard  v.  Put  rick,  :',s  Mich.  795   (1878): 

"A  large  number  of  questions  have  been  raised  in  this  case.     We  do  not. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  445 

JUNEAU  BANK  v.  McSPEDON. 
(Supreme  Court  of  Wisconsin,  1862.     15  Wis.  629.) 

By  the  Court,  PainE,  J.^*  We  think  the  defendant  should  have 
been  allowed  to  use  the  deposition  of  Mrs.  Bartlett  on  the  trial.  There 
is  nothing  on  the  face  of  the  papers  showing  that  it  was  taken  on  the 
part  of  the  plaintiff.  But  even  if  there  was,  our  conclusion  would  be 
the  same.  It  is  true  the  plaintiff  had  not  offered  to  use  it ;  and  there 
are  cases  which  have  held  that  a  party  could  not  use  a  deposition  taken 
on  the  part  of  the  other,  unless  it  was  first  used  by  the  party  taking  it. 
But  the  opposite  rule  seems  to  us  to  be  sustained  by  the  weight  of 
authority  and  argument.  The  only  objection  urged  against  it  is,  that 
if  either  party  is  allowed  first  to  use  a  deposition  taken  by  the  other, 
the  party  taking  it  is  deprived  of  the  right  of  cross-examination.  But 
the  general  presumption  is,  that  the  testimony  of  a  witness  will  be  in 
favor  of  the  party  calling  him,  and  therefore  the  right  of  cross- 
examination  ordinarily  belongs  to  the  opposite  party.  But  if  a  witness 
should  unexpectedly  state  facts  against  the  party  calling  him,  it  would 
undoubtedly  be  within  the  discretion  of  the  court  to  allow  him,  by 
questions  in  the  nature  of  a  cross-examination,  to  call  out  whatever  he 
might  be  able  in  explanation  or  avoidance  of  such  facts,  just  as  a 
party  is  allowed  to  put  leading  questions  to  his  own  witness,  where  the 
latter  appears  evidently  hostile  to  the  party  calling  him.  At  all  events, 
it  would  seem  much  more  convenient  that  this  practice  should  prevail 
in  respect  to  depositions,  than  that  a  party  who  has  called  out  from  a 
witness,  in  a  deposition  taken  by  the  other,  all  the  facts  material  for 
him  to  prove,  should  be  obliged  to  retake  the  deposition  on  his  own 
behalf,  or  be  prohibited  from  using  the  evidence  in  case  his  adversary 
was  able  to  dispense  with  it.  And  this  rule  being  estabHshed,  the  ob- 
jection for  want  of  cross-examination  would  fail.  For  either  party 
would  then  be  allowed  to  examine  the  witness  fully,  both  to  prove 

however,  consider  it  necessary  to  refer  to  all,  but  only  such  of  thera  as  are 
likely  to  become  important  upon  a  new  trial  of  the  case. 

"I.  The  evidence  of  James  Evans  should  have  been  admitted.  The  authori- 
ties are  all  agreed  that  where  a  witness  has  been  sworn  upon  a  former  trial 
between  the  same  parties  and  upon  the  same  issue,  and  since  the  trial,  has 
deceased,  his  testimony  as  given  upon  the  former  trial  is  admissible.  And 
while  there  is  a  couUict  as  to  whethei'  this  i-ule  may  be  extended  to  cases 
where  the  witness  is  sick  or  insane,  or  beyond  the  jurisdiction  of  the  court, 
yet  we  are  of  opinion  that  upon,  principle  the  evidence  should  be  admitted, 
and  that  there  is  no  good  ground  for  any  such  distinction.  In  a  case  like 
the  present  the  witness  is,  to  all  intents  and  purposes,  so  far  as  these  par- 
ties are  concerned,  legally  dead.  They  can  no  more  avail  themselves  of  his 
personal  presence  in  court  than  though  he  were  in  fact  dead.  The  reason  of 
the  rule  admitting  his  testimony  in  the  one  case  is  equally  strong  in  the 
other,  and  we  can  see  no  good  reason  for  recognizing  any  such  distinction." 

In  this  case  the  witness  was  absent,  but  the  report  does  not  state  whether 
it  was  due  to  sickness  or  absence  from  the  jurisdiction. 

2  4  Statement  omitted. 


446  HEARSAY  (Ch.  3 

facts  in  his  own  favor,  and  in  explanation  of  facts  stated  in  favor  of 
the  opposite  party.  And  the  statute  evidently  contemplates  this. 
It  provides  that  the  party  producing  the  deponent  may  first  "examine 
him  on  all  points  which  he  shall  deem  material,  and  then  the  ad- 
verse party  may  examine  the  deponent  in  like  manner,  after  which 
either  party  may  propose  such  further  interrogatories  as  the  case  may 
require."  Chapter  137,  §  15,  R.  S.  This  was  clearly  designed  to  en- 
able the  whole  testimony  of  a  witness  to  be  secured  for  the  benefit 
of  both  parties  in  one  deposition,  and  must  be  construed  as  giving  both 
the  corresponding  rights  of  examination  and  cross-examination  at  the 
taking.  Though  perhaps  it  ought  not  to  be  held  to  allow  the  party  pro- 
ducing the  witness  to  cross-examine  with  a  direct  view  of  impeaching 
his  credibility.  There  are  obvious  considerations  against  this  which 
would  not  apply  to  cross-examination  for  any  other  purpose. 

The  whole  deposition  should  therefore  have  been  admitted.  For  it 
is  impracticable  and  inconvenient  to  divide  a  deposition,  so  as  to  ad- 
mit that  which  was  given  only  in  answer  to  one  party.  The  answers 
on  cross-examination  are  frequently  intelligible  only  in  connection  with 
the  examination  in  chief.  And  it  seems  useless  to  require  either  party 
to  have  repeated  in  answer  to  his  own  questions,  what  the  witness  has 
clearly  stated  in  answer  to  the  other,  as  a  condition  precedent  to  his 
right  to  use  it. 

As  this  makes  the  reversal  of  the  judgment  necessary,  we  shall  not 
express  any  opinion  upon  the  other  questions  argued,  as  a  retrial  may 
present  the  case  in  a  different  aspect. 

The  judgment  is  reversed,  with  costs,  and  a  new  trial  ordered.^* 


PITTSBURGH,  C.  &  ST.  L.  RY.  CO.  v.  McGRATH. 
(Supreme  Court  of  Illinois,  1SS5.    115  111.  172,  3  N.  E.  4:39.) 

Sheldon,  J."  This  was  an  action  against  the  railway  company  to 
recover  damages  for  the  killing  of  plaintiff's  intestate  through  the 
alleged  negligence  of  the  defendant,  wherein  the  plaintiff  recovered; 
the  judgment  was  affirmed  by  the  appellate  court  for  the  First  district, 
and  defendant  took  this  appeal.  Error  is  assigned  in  the  excluding  of 
the  deposition  of  a  witness  taken  before  the  coroner's  inquest  upon  the 
body  of  the  deceased,  the  witness  being  dead.  English  cases  are  cited 
where  such  depositions  have  been  held  admissible  in  evidence.  Starkie, 
in  remarking  upon  this  subject,  observes:  "It  has  been  said  that  depo- 
sitions taken  by  a  coroner  are  evidence  although  the  prisoner  was  not 
present,  because  the  coroner  is  a  public  officer  appointed  to  inquire  of 
such  matters,  and  therefore  it  is  to  be  presumed  that  such  depositions 

2.'.  liiit  see  Dana  v.  Undorwood,  19  Tick.  (Mass.)  99  (1S37). 
20  I'art  of  oitinioii  onilttcd. 


Sec.  2)  RECOGNIZED  EXCErXIOXS  447 

were  fairly  and  impartially  taken;  yet  it  seems  the  admissibility  of 
these  depositions  stands  altogether  upon  the  statutes,"  etc.  2  Starkie, 
Ev.  490,  marg. 

As  quoted  from  2  Phil.  Ev.  224,  marg.,  Cow.  &  H.  notes  (5th  Amer. 
Ed.) :  "The  fourth  section  of  the  7  Geo.  IV,  c.  64.  enacts  that  every 
coroner,  upon  any  inquisition  before  him  taken,  whereby  any  person 
shall  be  indicted  for  manslaughter  or  murder,  *  *  *  and  shall 
certify  and  subscribe  the  same  evidence,  and  all  such  recognizances, 
and  also  the  inquisition  before  him  taken,  and  deliver  the  same  to  the 
proper  officer  of  the  court  in  which  the  trial  is  to  be,  before  or  at  the 
opening  of  the  court.  *  *  *  It  has  been  held  in  the  construction 
of  the  statute  of  Philip  and  Mary,  under  which  depositions  before 
coroners  used  to  be  taken,  (and  the  same  decisions  seem  to  apply  equal- 
ly to  cases  under  the  new  statute  above  cited),  that  in  case  of  any  of 
the  witnesses  *  *  *  are  dead,  *  *  *  their  depositions  may  be 
read  on  the  trial  of  the  prisoner." 

The  provision  of  our  statute  simply  is,  "which  testimony  (before  cor- 
oner) shall  be  filed  with  said  coroner  in  his  office  and  carefully  pre- 
served." There  being  no  implication,  as  in  the  English  statute,  that 
the  deposition  is  for  use  in  court,  there  is  such  difference  between  the 
statutes  as  to  afford  room  for  question  whether  the  English  decisions 
fully  apply.  The  cases  in  which  such  depositions  have  been  received 
are  mostly  criminal  cases,  but  they  have  been  received  in  a  civil  case. 
Sills  V.  Brown,  9  Car.  &  P.  601.  The  plaintiff  was  not  a  party  to  the 
proceeding  before  the  coroner,  was  not  present,  had  no  opportunity  for 
the  cross-examination  of  the  witness,  and  any  question  of  negligence, 
the  vital  question  in  this  case,  was  not  the  very  matter  of  inquirv'  before 
the  coroner.  The  legitimate  object  of  the  inquest  would  have  been 
fulfilled  in  finding  simply  that  the  death  of  deceased  was  caused  by 
his  being  run  over  by  a  railroad  train,  without  inquiry  whether  it  was 
through  any  one's,  or  whose,  negligence.  We  are  of  opinion  the  depo- 
sition was  rightly  excluded.  In  the  case  of  Cook  v.  New  York  Cent. 
R.  Co.,  5  Lans.  (N.  Y.)  401,  it  was  so  ruled,  and  see  State  v.  Turner, 
Wright  (Ohio).  21,  and  note  to  above  citation  from  Phillips.     *     *     * 

Affirmed.^^ 

27  In  Clement  v.  Blunt,  2  Rolle,  460  (1B25),  in  a  trial  at  bar  of  an  appeal 
of  felonv,  a  deposition  taken  at  the  coroner's  inquest  was  rejected ;  the  case 
is  badly  reported  and  the  reasons  are  not  clear ;  one  or  more  of  the  judges 
put  it  on  the  ground  that  this  action  was  between  private  parties,  but  sug- 
gested that  it  might  be  allowed  in  the  case  of  the  king. 

Samson  V.  Yardley,  2  Keble,  223  (1668):   "In  an  appeal  of  murther,     •     •     • 

Wild,  the  King's  Sergeant  pro  defendant  offered  evidence  of  what  a  witness, 
sworn  on  the  trial  in  the  indictment,  then  said,  being  now  dead;  also  what 
the  now  appellant  then  confest,  which  Keeling  and  Moreton  denied,  because 
at  common  law  the  appeal  preceded  the  indictment ;  therefore  since  the  stat- 
ute that  ordains  the  indictment  first,  the  appeal  remains  as  res  Integra, 
wherein  on  neither  side  the  former  proceedings  cannot  avail  either  party; 
but  Twisden  and  Windham  conceived  it  should  be  admitted,  but  all  admitted 
proof  of  what  the  appellant  had  said  at  any  time  before  generally,  but  not 
what  she  swore  at  the  trial ;  (but  what  the  witnesses  dead  had  said  general- 


448  HEAUSAT  (Ch.  3 


LIETROPOLITAN  ST.  RY.  CO.  v.  GUMBY. 

(Circuit  Court  of  Appeals  of   the  United   States,   Second   Circuit,   190O.     99 

Fed.  192,  39  C.  C.  A.  455.) 

This  is  a  writ  of  error  to  review  a  judgment  of  the  circuit  court, 
Southern  district  of  New  York,  in  favor  of  Anne  Gumby,  defendant 
in  error,  who  was  plaintiff  below.  The  judgment  was  based  upon  a 
verdict  against  defendant  below  awarding  damages  for  loss  of  serv- 
ices of  plaintiff's  son  George  Gumby,  a  child  5  years  of  age  at  the 
time  of  the  accident,  who  was  injured  by  one  of  defendant's  cars 
May  22,  1897.    The  facts  sufficiently  appear  in  the  opinion. 

Lacombe,  Circuit  Judge. ^*  All  assignments  of  error,  save  one,  were 
abandoned  by  plaintiff  in  error  upon  the  argument,  and  that  one  only 
need  be  discussed.  One  of  the  eyewitnesses  of  the  accident  was 
Macon  Lyons.  He  was  dead  at  the  time  of  the  trial  of  the  cause  at 
bar,  but  had  testified  with  great  fullness  to  what  he  saw  of  the  acci- 
dent, upon  the  trial  of  an  action  brought  by  Elizabeth  Clayton, 
grandmother  of  George  Gumby,  as  guardian  ad  litem,  against  the 
same  defendant,  to  recover  for  pain  and  suffering,  and  for  any  per- 
manent loss  of  ability  to  work,  caused  by  the  accident.  After  intro- 
ducing some  testimony  which  is  not  especially  persuasive,  plain- 
tiff's counsel  offered  to  read  the  testimony  of  Lyons  taken  in  the  son's 
action.  It  would  appear  from  the  record  that  the  attention  of 
the  trial  judge  was  not  at  the  time  called  to  the  circumstance  that  the 
guardian  ad  litem  who  prosecuted  the  former  action  was  not  the 
infant's  mother  (the  present  plaintiff),  but  his  grandmother.  De- 
fendant objected  that  he  knew  of  no  rule  of  law  that  made  it  com- 
petent testimony.  The  objection  was  overruled,  and  the  testimony 
read,  defendant  reserving  an  exception.  The  objection  is  not  for- 
mulated in  specific  terms,  to  the  effect  that  what  was  offered  was 
hearsay,  and  not  within  any  of  the  exceptions  which  are  recognized 
to  the  rule  that  hearsay  is  incompetent.  Nevertheless,  since  the  ob- 
jection urged  here  is  of  such  sort  that  nothing  could  have  been  done  by 
the  party  offering  the  evidence  to  overcome  such  objection,  we  may 
with  entire  propriety  dispose  of  the  question  raised  here. 

The  statutes  of  New  York  (section  830,  Code  Civ.  Proc.)  provide 
that :  "Where  a  party  or  a  witness  has  died  or  become  insane  since 
the  trial  of  an  action  ♦  ♦  ♦  the  testimony  of  the  deceased  or  in- 
sane person  *  *  ♦  taken  or  read  in  evidence  at  me  former  trial 
♦     *     *     may  be  given  or  read  in  evidence  at  a  new  trial     *     *     * 

ly,  bfinK  but  lioarsay  of  a  stranger,  and  not  of  party  Interest  they  would 
not  admit,  which  might  he  true  or  false)." 

In  Kex  V.  Thatcher,  T.  Jones,  53  (11177),  the  depo.sitlon  of  a  witness  taken 
by  the  coroner  was  road  on  the  trial  of  an  iiidictmout  for  innrdcr,  the  court 
hiving  great  stress  on  the  authority  of  tlie  coroner.  And  nv  in  Bromwich's 
Case,  ante,  p.  41*8. 

20  Tart  of  (jpiiihm  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  449 

subject  to  any  other  legal  objections  to  the  competency  of  the  witness, 
or  to  any  legal  objection  to  testimony  or  any  question  put  to  him." 

It  is  manifest  that  this  does  not  touch  the  point  at  issue.  It  pro- 
vides only  for  new  trials  of  the  same  action  in  which  the  deceased 
witness  testified.  We  find  no  other  section  of  the  Code  author- 
izing the  admission  of  such  testimony,  and  the  question  raised  here 
will  have  to  be  disposed  of  under  the  principles  of  the  common  law. 

The  entire  reliance  of  the  plaintiff  seems  to  be  upon  a  paragraph 
in  the  sixteenth  edition  of  Greenleaf  on  Evidence,  enlarged  and  an- 
notated by  Prof.  Wigmore,  published  in  1899.  The  paragraph  (which 
is  the  annotator's)  is  section  163a,  and  reads  as  follows : 

"As  to  the  parties,  all  that  is  essential  is  that  the  present  opponent 
should  have  had  a  fair  opportunity  of  cross-examination.  Conse- 
quently a  change  of  parties  which  does  not  effect  such  a  loss  does 
not  prevent  the  use  of  the  testimony, — as,  for  example,  a  change  by 
which  one  of  the  opponents  is  omitted,  or  by  which  a  merely  nominal 
party  is  added.  And  the  principle  also  admits  the  testimony  where 
the  parties,  though  not  the  same,  are  so  privy  in  interest — as  where 
one  was  an  executor,  or  perhaps  a  grantor — that  the  same  motive  and 
need  for  cross-examination  existed." 

A  very  large  number  of  cases  are  cited  by  the  annotator,  all  of 
which  have  been  examined  by  the  court.  If  the  propositions  above 
quoted  are  read  with  the  qualifications  which  are  indicated  by  the 
illustrative  examples  given  in  the  paragraph,  they  are  sound,  and 
abundantly  supported  by  authority.  If  they  are  to  be  read,  how- 
ever, as  plaintiff  reads  them,  namely,  as  asserting  that  evidence  of 
a  deceased  witness  may  be  read  in  any  subsequent  suit  when  it  ap- 
pears that  the  same  issue  is  involved,  that  the  witness  testified  un- 
der the  sanction  of  an  oath,  that  he  was  confronted  with  the  person 
against  whom  the  testimony  is  offered,  and  that  the  latter  had  the  op- 
portunity of  cross-examination,  then  it  is  not  supported  by  the  au- 
thorities to  which  our  attention  has  been  called,  or  which  we  have 
been  able  to  discover.  Stated  thus  baldly,  the  proposition  imports  that 
when,  for  example,  the  derailment  of  a  train  because  of  a  misplaced 
switch  has  caused  injury  to  a  score  of  passengers,  and  a  witness 
has  testified  to  the  circumstances  of  the  accident  in  an  action  brought 
by  A.  to  recover  for  his  injuries,  and  has  since  died,  the  evidence 
of  such  witness  may  be  read  by  any  other  injured  passenger  upon 
the  subsequent  trial  of  his  action  for  damages.  No  case  has  beer> 
found  which  lends  the  slightest  support  to  any  such  proposition.  In 
all  of  them  it  is  postulated  that  the  parties  must  be  substantially  the 
same,  or,  if  they  are  not,  that  the  newcomer  must  be  a  privy  with  the 
former  party  in  blood,  in  estate,  or  in  law.     *     *     * 

Morgan  v.  Nicholl,  L.  R.  2  C.  P.  117,  was  an  action  of  ejectment. 
Morgan  offered  the  testimony  of  a  deceased  witness  on  the  trial  of 
HiNT.Ev.— 29 


450  HEARSAY  (Ch.  3 

a  former  action  in  ejectment  against  NichoH's  father  brought  by 
Morgan's  son,  claiming  as  his  heir  at  law,  under  the  supposition 
that  he  was  dead,  to  recover  the  same  premises.  It  was  held  that 
there  was  no  privity  of  estate  between  Morgan  and  his  son,  and 
that  the  evidence,  not  being  admissible  against  Morgan,  was  not  ad- 
missible for  him.     *     *     * 

This  case  is  on  all  fours  with  the  one  at  bar.  Anne  Gumby  could 
have  successfully  objected  to  the  reading  in  evidence  against  her  of  the 
testimony  of  the  witness  who  testified  in  the  suit  of  Clayton,  guardian 
ad  litem  of  George  Gumby  against  defendant,  and  therefore  she  can- 
not read  the  same  testimony  in  evidence  against  defendant. 

The  judgment  of  the  circuit  court  is  reversed,  and  a  new  trial  or- 
dered.^" 


SHAW  et  al.  v.  NEW  YORK  ELEVATED  R.  CO.  et  al. 
(Court  of  Appeals  of  New  York,  1907.    1S7  N.  Y.  186,  79  N.  E.  9S4.) 

HiscocK,  J.^°  *  *  *  This  action  was  commenced  and  once  tried 
before  the  Interborough  Rapid  Transit  Company  had  become  a  lessee, 
and  therefore  an  appropriate  party.  Upon  the  second  trial  such  com- 
pany was  by  stipulation  brought  in  as  a  defendant,  and  appeared  by 
the  same  attorney  who  had  already  appeared  in  the  action  for  the 
other  defendants.  One  of  plaintiffs'  witnesses  upon  the  first  trial 
(Flock)  died  pending  the  second  trial,  and  when  plaintiffs'  counsel 
attempted  to  read  his  evidence  the  same  was  objected  to  by  the  Inter- 
borough Company  as  inadmissible  under  the  Code;  the  objection, 
however,  being  overruled.  Section  830  of  the  Code,  as  amended  by 
chapter  595  of  the  Laws  of  1893  (Laws  1893,  p.  1375),  provided  that 
'•the  testimony  of  any  witness  who  has  died  or  become  insane  after  a 
former  trial  or  hearing  of  *  *  *  an  action,  may  be  read  upon  a 
subsequent  trial  or  hearing,  by  any  party  to  such  action  or  proceeding, 
subject  to  legal  objections."  There  is  no  doubt  that  the  term  "party," 
in  this  connection,  included  a  privy  such  as  would  be  a  lessee  in  respect 
to  his  lessor.  Jackson  v.  Crissey,  3  Wend.  251,  252;  O'Donnell  v. 
Mclntvre,  118  N.  Y.  156,  162,  23  N.  E.  455;  Bennett  v.  Couchman, 
48  Barb.  73,  81.  By  chapter  352,  p.  762,  Laws  1899,  said  section  830 
was  again  amended  so  as  to  provide  that  the  testimony  upon  a  former 

2  8  In  the  omitted  part  of  the  opinion  a  large  number  of  the  cases  are  col- 
lectcd  and  reviewed. 

See.  also,  Hooper  v.  Southern  Ry.  Co.,  112  Ga.  96,  37  S.  E.  165  (1900),  ex- 
cluding tf'Stimony  Kivon  in  anotlior  aftion.  whore  the  plaintiff  In  the  last  ac- 
tion had  appeared  as  the  next  friend  of  tlio  plaintiff  in  the  first  action. 

In  Wi.scousin  the  rule  appears  to  have  been  extended  hy  statute  to  In- 
clude any  case  where  there  was  fair  cros.s-examination.  Illinois  Steel  Co.  v. 
Muza,  104  Wis.  217,  159  N.  W.  908  (1916). 

■If  Part  of  opinion  of  lliscock,  J.,  and  dissenting  opinion  of  Gray,  J.,  are 
omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  451 

trial  of  such  a  deceased  witness  might  be  read  upon  a  subsequent  trial 
of  the  same  action  "between  the  same  parties  who  were  parties  to  such 
former  trial  or  hearing,  or  their  legal  representatives." 

It  is  urged  that  the  employment  of  the  words  "legal  representatives" 
has  modified  the  application  of  this  provision  as  it  formerly  existed, 
and  that  such  words  do  not  include  a  privy  such  as  a  lessee.  It  is  un- 
necessary to  spend  time  in  considering  how  well  founded  may  be  ap- 
pellants' contention  in  this  regard,  for  a  complete  answer  to  the  ex- 
ception here  urged  is  found  elsewhere  than  in  the  construction  of  this 
section.  Independent  of  statute  the  common  law  permitted  the  evi- 
dence of  a  deceased  witness  to  be  read  as  between  the  original  parties 
or  their  privies.  Jackson  v.  Bailey,  2  Johns.  17,  19 ;  Bradley  v.  Mirick, 
91  N.  Y.  293,  295.  And  there  is  no  such  conflict  between  the  Code 
and  this  rule  as  works  the  abrogation  of  the  latter  in  the  absence  of 
express  repeal.  Am.  &  Eng.  Ency.  of  Law,  vol.  26,  p.  662,  and  cases 
there  cited.  Therefore  the  evidence  was  competent  under  the  com- 
mon law,  even  if  not  so  under  the  statute.     ♦     ♦     * 

Affirmed." 


REX  V.  SMITH. 
(Court  for  Crown  Cases  Reserved,  1817.     Russ.  &  R.  339.) 

The  prisoner  was  tried  and  convicted  before  Lord  Chief  Baron 
Richards,  at  the  summer  assizes  for  the  town  of  Newcastle-upon- 
Tyne,  in  the  year  1817,  of  the  murder  of  Charles  Stewart  on  the 
night  of  3d  of  September,  1816. 

The  only  question  which  the  learned  Chief  Baron  thought  it  neces- 
sary to  submit  for  the  consideration  of  the  judges  was,  whether  the  dep- 
osition after  mentioned  ought  to  have  been  admitted  in  evidence.  If 
it  was  properly  admitted,  it  was  conclusive  as  to  the  guilt  of  the  pris- 
oner. 

The  prisoner  it  appeared  had  been  brought  before  two  magistrates 
on  the  4th  of  September,  1816,  upon  a  charge  of  an  assault  upon  the 
deceased,  and  also  upon  a  charge  of  robbing  a  manufactory,  which  the 
deceased  had  been  employed  to  guard. 

The  clerk  of  the  magistrates  produced  the  deposition  of  the  deceas- 
ed taken  before  the  magistrates  at  the  time  the  above  mentioned  com- 
plaints were  preferred,  and  then  reduced  into  writing  by  the  witness 
who  produced  it.  It  appeared  the  oath  was  administered  to  the  de- 
ceased before  any  part  of  his  evidence  was  reduced  into  writing. 

The  prisoner  was  not  present  when  the  examination  commenced,  but 
was  brought  into  the  room  before  it  was  finished,  and  before  the  three 
last  lines  of  the  deposition  were  taken  down.    The  prisoner  was  inform- 
al And  so  in  Stephens  v.  Hoffman,  263  111.  197,  104  N.  E.  1090  (1914) ;  Yale 
V.  Comstock,  112  Mass.  267  (1873) ;  Adams  Y.  Raigner,  69  Mo.  363  (1879). 


452  HEARSAY  (Ch.  3 

ad,  that  the  magistrates  were  taking  the  examination  of  the  deceased, 
and  he  was  desired  to  attend.  The  oath  was  again  administered  to  the 
deceased  in  the  prisoner's  presence,  and  the  whole  of  what  had  been 
written  down  from  the  mouth  of  the  deceased  was,  in  the  presence  and 
hearing  of  the  deceased,  read  over  to  the  prisoner  very  distinctly  and 
slowly.  After  this  was  done  the  deceased  was  asked  in  the  presence 
and  hearing  of  the  prisoner,  whether  what  had  been  written  was  true, 
and  what  he  meant  to  say;  and  the  deceased  answered  that  it  was 
perfectly  correct.  The  magistrates  then  proceeded  to  examine  the 
deceased  further,  in  the  presence  and  hearing  of  the  prisoner,  when  the 
deceased  stated  what  was  contained  in  the  three  last  lines  of  the  depo- 
sition. During  the  whole  of  the  examination  the  deceased  appeared 
perfectly  collected. 

After  this,  the  prisoner  was  asked  whether  he  chose  to  put  any 
questions  to  the  deceased ;  he  did  not  ask  any  question,  but  only  said 
"God  forgive  you,  Charles."  The  deceased  then  signed  the  deposition 
in  the  presence  of  the  magistrates  and  the  prisoner,  and  after  he  had 
signed,  the  magistrates  signed  it  in  the  presence  of  the  deceased  and 
the  prisoner. 

Alderson,  on  behalf  of  the  prisoner,  objected  to  the  admissibility  of 
this  deposition  in  evidence : 

First,  because  the  prisoner  did  not  hear  the  questions  put,  or  the 
answers  given,  except  as  to  the  last  three  lines ;  and  therefore  he  con- 
tended, the  case  was  not  brought  within  the  statutes  1  &  2  P.  &  M.  c. 
13,  and  2  &  3  P.  &  M.  c.  10,  which  made  depositions  evidence  in  any 
case. 

Secondly,  because  under  these  statutes,  the  examination  is  confined 
to  the  offence  with  which  the  defendant  is  charged  at  the  time.  Here 
the  defendant  was  charged  with  an  assault  and  robbery;  the  deposi- 
tion, if  properly  taken,  might  have  been  applied  to  an  indictment  for 
the  assault  or  robbery ;  but  could  not  apply  to  murder,  the  offence  here 
inquired  into;  for  no  murder  had  taken  place  when  the  deposition  was 
taken. 

The  learned  judge  overruled  these  objections,  and  admitted  the  dep- 
osition to  be  read  in  evidence;  and  the  jury  found  the  prisoner  guilty, 
but  the  learned  judge  reserved  the  case  for  tlie  consideration  of  the 
judges. 

In  Michaelmas  term,  1817,  eleven  of  the  judges  met,  and  considered 
this  case  (Gibbs,  C.  J.,  being  absent).  Ten  of  the  learned  judges 
thought  the  conviction  right ;  and  that  the  deposition  had  been  proper- 
ly received  in  evidence.  Abbott,  J.,  thought  the  evidence  ought  not 
to  have  been  received.  Dallas,  J.,  Graham,  B.,  Richards,  C.  B.,  and 
Lord  Ellenborough,  stated  that  they  should  have  doubted  the  admis- 
sibility of  the  evidence,  but  for  the  case  of  Rex  v.  Radbourne,  1  Leach, 
C.  0.457. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  453 

STATE  V.  McO'BLENIS. 
(Supreme  Court  of  Missouri,  1S57.    24  Mo.  402,  69  Am.  Dec.  435.) 

On  appeal  from  a  conviction  of  murder. 

Leonard,  J.,^^  delivered  the  opinion  of  the  court. 

The  main  question  that  has  been  discussed  before  us  in  this  case  is 
the  competency  of  Nievergelder's  deposition,  which  was  regularly  tak- 
en before  the  committing  magistrate  upon  the  preliminary  examination 
in  the  presence  of  the  accused,  and  read  on  the  trial  upon  proof  of  the 
deponent's  death.  Before  we  dispose  of  it,  however,  we  will  remark 
that  on  a  careful  examination  of  the  record  and  consideration  of  other 
points  presented,  we  have  not  found  any  ground  for  reversing  the  judg- 
ment, in  the  impaneling  of  the  jury,  in  the  admission  or  exclusion  of 
evidence,  in  the  instructions  under  which  the  cause  was  tried,  or  in 
the  verdict,  either  as  to  form  or  substance,  and,  dismissing  with  these 
remarks  the  minor  points,  we  proceed  at  once  to  the  question  that  was 
mainly  relied  upon  in  argument  before  us. 

The  proud  answer  of  the  Roman  governor  to  the  Jews,  when  they 
demanded  of  him  the  condemnation  of  Paul,  was :  "It  is  not  the  man- 
ner of  the  Romans  to  deliver  any  man  to  die  before  that  he  which  is 
accused  have  the  accusers  face  to  face,  and  have  license  to  answer  for 
himself  concerning  the  crime  laid  against  him."  *  *  ■'  Our  own 
bill  of  rights  secures  to  the  accused,  among  other  things,  the  right  "to 
be  heard  by  himself  and  his  counsel,"  "to  demand  the  nature  and  cause 
of  accusation,"  "to  have  compulsory  process  to  compel  the  attendance 
of  witnesses  in  his  favor,"  "to  meet  the  witnesses  against  him  face  to 
face,"  and  "to  a  speedy  trial  by  an  impartial  jury  of  the  vicinage,"  and 
to  an  exemption  from  "being  compelled  to  give  evidence  against  him- 
self," and  the  admission  upon  the  present  trial  of  Nievergelder's  depo- 
sition is  supposed  to  have  violated  the  clause  which  secures  to  the 
accused  "in  all  criminal  prosecutions  the  right  to  meet  witnesses  against 
him  face  to  face."  The  great  security  of  the  accused,  however,  after 
all,  is  in  the  fundamental  principle  of  the  common  law,  that  legal  evi- 
dence consists  in  facts  testified  to  by  some  person  who  has  personal 
knowledge  of  them ;  thus  excluding  all  suspicions,  public  rumors,  sec- 
ond-hand statements,  and  generally  all  mere  hearsay  testimony,  wheth- 
er oral  or  written,  from  the  consideration  of  the  jury — the  usual  test 
of  this  hearsay  evidence  being  that  it  does  not  derive  its  value  solely 
from  the  credit  to  be  given  to  the  witness  who  is  before  them,  but  part- 
ly from  the  veracity  of  some  other  individual. 

This  great  principle,  however,  like  all  others,  has  its  exceptions  and 
limitations,  which  are  as  well  settled  as  a  rule  itself,  and  among  these 
exceptions,  in  its  application  to  the  administration  of  criminal  justice, 

3  2  Statement  and  part  of  opinion  omitted. 


454  HEARSAY  (Ch.  3 

are  dying  declarations  in  reference  to  tlie  same  homicide,  and  tlie  dep- 
osition of  a  witness  regularly  taken  in  a  judicial  proceeding  against 
the  accused  in  respect  to  the  same  transaction  and  in  his  presence,  when 
the  subsequent  death  of  the  witness  has  rendered  his  production  in 
^court  impossible;  and  the  question  now  to  be  passed  upon  comes  to 
this;  whether  the  provision  in  our  Constitution  is  to  be  construed  so 
as  to  abolish  both  or  either  of  these  exceptions,  so  that  hereafter  this 
species  of  evidence,  which  has  heretofore,  it  is  believed,  always  been 
received  both  in  England  and  all  over  the  United  States,  must  be  ex- 
cluded. The  Constitution,  it  is  to  be  observed,  has  not  undertaken  to 
define,  by  any  direct  provision,  what  constitutes  competent  evidence  in 
criminal  cases,  except  in  the  single  case  of  treason,  but  requires  it  to 
come  from  witnesses  standing  in  the  presence  of  the  accused,  and 
it  may  be  in  the  tribunal  where  his  guilt  or  innocence  is  to  be  finally 
passed  upon.  If  the  clause  be  understood  literally,  it  provides  for  the 
production  of  the  witness,  but  does  not  prescribe  what  he  may  com- 
municate as  evidence.  It  compels  his  presence  in  court,  but  leaves  the 
evidence  he  may  give  to  be  regulated  by  law.  The  dying  statement 
of  the  slain,  and  the  deposition  of  the  deceased  witness,  are  both  mere 
hearsay  in  the  legal  sense  of  the  term.  The  truth  of  the  facts  they 
relate  do  not  depend  upon  the  veracity  of  the  witness  who  heard  the 
oral  statement  in  one  case,  or  of  the  officer  who  heard  the  testimony 
of  the  deponent  and  wrote  it  down  and  read  it  over  to  him  in  the  other, 
but  mainly  upon  the  credit  due  to  statements  made  under  such  cir- 
cumstances. Even  in  the  civil  law  mode  of  procedure  the  witnesses,  it 
seems,  are  ultimately  confronted  with  the  accused,  and,  therefofe,  it 
may  be  said  literally  even  there  that  they  "meet  the  accused  face  to 

face." 

But  all  such  constructions  would  be  quite  too  narrow,  and  altogether 
unworthy  both  of  the  instrument  and  of  this  tribunal.  The  people 
have  incorporated  into  their  frame  of  government  a  great  living  prin- 
ciple of  the  common  law  under  which  they  and  their  ancestors  had 
lived,  and  it  is  the  duty  of  the  court  so  to  construe  it  as  to  make  it  ef- 
fectual to  answer  the  great  purpose  they  had  in  view.  And  this  prin- 
ciple, we  think,  is  no  other  than  the  principle  of  the  common  law  in 
reference  to  criminal  evidence  that  it  consists  in  facts  within  the  per- 
sonal knowledge  of  the  witness,  to  be  testified  to  in  open  court  in  the 
presence  of  the  accused.  This  principle,  however,  was  nowhere  writ- 
ten down  on  parchment.  It  is  not  to  be  found  in  Magna  Charta,  or 
in  the  English  bill  of  rights,  but  it  existed  in  the  living  memory  of  men, 
and  was  always  a  part  of  the  common  law,  although  in  bad  times  it 
was  trodden  under  foot  by  bad  men  in  high  places.  It  is  not,  however, 
a  stiff,  unbending  rule,  extending  to  every  case,  without  exception, 
falling  within  its  letter,  but  is  limited  and  controlled  by  subordinate 
rules,  which  render  it  safe  and  useful  in  the  administration  of  public 
justice,  and  are  as  well  establisiied  as  the  great  principle  itself,  which. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  455 

with  all  its  exceptions  and  limitations,  was  taken  from  the  existing 
law  of  the  land  and  incorporated  into  the  Constitution.    The  purpose  of 
the  people  was  not,  we  think,  to  introduce  any  new  principle  into  the 
law  of  criminal  procedure,  but  to  secure  those  that  already  existed  as 
part  of  the  law  of  the  land  from  future  change  by  elevating  them  into 
constitutional  law.     It  may  as  well  be  the  boast  of  an  Englishman 
living  under  the  common  law,  as  of  a  citizen  of  this  state  living  under 
our  Constitution,  tliat  in  a  criminal  prosecution  he  has  a  right  to  meet 
the  witnesses  against  him  face  to  face ;  and  yet  it  was  never  supposed 
in  England,  at  any  time  that  this  privilege  was  violated  by  the  admis- 
sion of  a  dying  declaration,  or  of  the  deposition  of  a  deceased  witness, 
under  proper  circumstances ;  nor,  indeed,  by  the  reception  of  any  other 
hearsay  evidence  established  and  recognized  by  law  as  an  exception 
to  the  general  rule.     It  is  said  by  Lord  Aukland,  in  reference  to  the 
conduct  of  the  British  courts  in  the  sixteenth  and  part  of  the  seven- 
teenth centuries — "Depositions  of  witnesses  forthcoming,  if  called,  but 
not  permitted  to  be  confronted  with  the  prisoner — written  examina- 
tions of  accomplices  living  and  amenable — confessions  of  convicts  late- 
ly hanged  for  the  same  offense — hearsay  of  these  convicts  repeated  at 
second-hand  from  others — all  formed  so  many  classes  of  competent 
evidence,  and  were  received  as  such  in  the  most  solemn  trials  by  learn- 
ed judges."    Principles  of  Penal  Law  (2d  Ed.)  197.    But  no  complaint 
of  the  character  of  the  one  now  made  was  ever  heard.    This  was  not 
an  evil  to  be  provided  for  by  any  law,  much  less  by  a  constitutional 
provision ;    tliese  exceptions  to  the  general  rule  were  never  considered 
violations  of  the  rule  itself;    they  grew  out  of  the  necessity  of  the^ 
case,  and  are  founded  in  practical  wisdom.    The  facts  thus  communi- 
cated go  to  the  jury,  not  as  entitled  to  tlie  full  faith  of  the  facts  sworn 
to  by  a  witness  from  his  own  personal  knowledge,  but  yet  as  competent) 
to  be  considered  by  the  jury  in  forming  their  verdict.     But  whether 
these  exceptions  be  wise  or  unwise,  is  not  submitted  to  our  judgment. 
They  w^ere  well  established  at  the  time,  and,  w^e  think,  went  into  the 
Constitution  as  part  of  the  great  principle  of  criminal  evidence  adopt- 
ed by  the  clause  now  under  consideration. 

We  refer,  in  conclusion,  in  confirmation  of  our  views  upon  the  sub- 
ject, to  the  decisions  of  the  other  states;  but  as  they  are  cited  in  the 
briefs,  we  shall  do  so  in  a  general  manner,  without  calling  attention 
to  the  particular  cases.  The  privilege  now  under  consideration  exists 
in  every  state  where  the  common  law  prevails,  either  as  part  of  that 
law,  or  by  a  constitutional  provision  similar  to  our  own,  and  yet  evi- 
dence of  tliis  character,  it  appears,  has  never  been  excluded  but  in  a 
single  case,  decided  in  early  times  in  Tennessee,  and  which  has  since 
been  expressly  overruled.  In  some  of  the  states  it  has  been  expressly 
recognized  as  competent  by  direct  decisions  to  that  eifect,  and  in  all  of 
them  the  uniform  current  of  judicial  dicta,  whenever  the  question  has 
been  a  subject  of  discussion,  is  in  favor  of  its  competency.     We  are 


456  HEARSAY  (Ch.  3 

constrained,  therefore,  both  on  the  score  of  reason  and  authority,  to 
pronounce  in  favor  of  the  legality  of  the  evidence.     The  judgment 
must,  therefore,  be  affirmed;  Judge  Scott  concurring. 
Affirmed." 


REYNOLDS  V.  UNITED  STATES. 
(Supreme  Court  of  the  United  States,  1878.    98  U.  S.  145,  25  !>.  Ed.  244.) 

On  writ  of  error  to  review  a  conviction  on  a  charge  of  bigamy  un- 
der the  United  States  statute.** 

Mr.  Chief  Justice  Waite.  *  *  *  4.  As  to  the  admission  of  evi- 
dence to  prove  what  was  sworn  to  by  Amelia  Jane  Schofield  on  a 
former  trial  of  the  accused  for  the  same  offence  but  under  a  different 
indictment. 

The  Constitution  gives  the  accused  the  right  to  a  trial  at  which 
he  should  be  confronted  with  the  witnesses  against  him ;  but  if  a  wit- 
ness is  absent  by  his  own  wrongful  procurement,  he  cannot  complain 
if  competent  evidence  is  admitted  to  supply  the  place  of  that  which 
he  has  kept  away.  The  Constitution  does  not  guarantee  an  accused 
person  against  the  legitimate  consequences  of  his  own  wrongful  acts. 
It  grants  him  the  privilege  of  being  confronted  with  the  witnesses 
against  him ;  but  if  he  voluntarily  keeps  the  witnesses  away,  he  can- 
not insist  on  his  privilege.  If,  therefore,  when  absent  by  his  procure- 
ment, their  evidence  is  supplied  in  some  lawful  way,  he  is  in  no  condi- 
tion to  assert  that  his  constitutional  rights  have  been  violated. 

3  8  And  so  In  Mattox  v.  United  States,  156  U.  S.  237,  15  Sup.  Ct.  337,  39  L. 
Ed.  409  (1.S95). 

Winslow,  J.,  in  Spencer  v.  State,  132  Wis.  509,  112  N.  W.  462,  122  Am.  St. 
Rep.  989,  13  Ann.  Cas.  969  (1907) :  "  •  *  *  In  the  case  of  illness  or  in- 
sanity or  other  physical  or  mental  disability  there  has  been  considerable  con- 
trariety of  opinion.  Our  examination  of  the  authorities  brings  us  to  the 
conclusion  that  the  English  rule  in  criminal  cases  was  that  mere  temporary 
illness  or  disability  of  the  witness,  where  there  was  prospect  of  recovery,  was 
not  sufficient  to  justify  the  reception  of  the  former  testimony,  but  that  it 
must  appear  that  the  witness  was  In  such  a  state,  either  mentally  or  physi- 
eallv,  or  both,  that  in  all  reasonable  probability  he  would  never  be  al)le  to 
attend  the  trial.  When  this  fact  satisfactorily  appeared  it  was  considered 
that  the  situation  was  practically  tlie  same  as  if  the  witness  were  dead.  1 
Rosco,  Grim.  Ev.  (8th  Am.  Ed.)  104,  105;  Rex.  v.  Hogg  (1833)  6  Carr.  &  P. 
J7f5;  Reg.  v.  Wilshaw  (1841)  Carr.  &  M.  145;  Reg.  v.  Marshall  (1841)  Carr, 
S  M.  147;  Marler  v.  State,  67  Ala.  55  [42  Am.  Rep.  95  (ISSO)l ;  McLaln  v. 
Com.,  99  Pa.  St.  86  [18821." 

That  a  temporary  Illness  of  the  witness  is  not  sufficient  in  a  criminal  case, 
see  State  v.  Staples,  47  N.  II.  113.  90  ^Vm.  Dec.  565  (1866) ;  Com.  v.  McKenna, 
1,^)8  .Mass.  207,  '.',?,  N.  E.  389  (1893).  Contra:  People  v.  Droste,  160  Mich.  66, 
125  N.  W.  87  (1910). 

•  <  Statement  condensed,  part  of  opinion  of  Walte,  C.  J.,  and  concurring 
opinion  of  Field,  J.,  omitted. 


Sec.  2)  RECOGNIZED  EXCErTIONS  457 

In  Lord  Morley's  Case,  6  State  Trials,  770,"=  as  long  ago  as  the 
year  1666,  it  was  resolved  in  the  House  of  Lords  "that  in  case  oath 
should  be  made  that  any  witness,  who  had  been  examined  by  the  cor- 
oner and  was  then  absent,  was  detained  by  the  means  or  procurement 
of  the  prisoner,  and  the  opinion  of  the  judges  asked  whether  such 
examination  might  be  read,  we  should  answer,  that  if  their  lordships 
were  satisfied  by  the  evidence  they  had  heard  that  the  witness  was 
detained  by  means  or  procurement  of  the  prisoner,  then  the  examina- 
tion might  be  read ;  but  whether  he  was  detained  by  means  or  procure- 
ment of  the  prisoner  was  matter  of  fact,  of  which  we  were  not  the 
judges,  but  their  lordships."  This  resolution  was  followed  in  Har- 
rison's Case,  12  State  Trials,  851,  and  seems  to  have  been  recognized 
as  the  law  in  England  ever  since.  In  Regina  v.  Scaife,  17  Ad.  &  El. 
(N.  S.)  242,  all  the  judges  agreed  that  if  the  prisoner  had  resorted  to 
a  contrivance  to  keep  a  witness  out  of  the  way,  the  deposition  of  the 
witness,  taken  before  a  magistrate  and  in  the  presence  of  the  prisoner, 
might  be  read.  Other  cases  to  the  same  effect  are  to  be  found,  and 
in  this  country  the  ruling  has  been  in  the  same  way.  Drayton  v.  Wells, 
1  Nott  &  McC.  (S.  C.)  409,  9  Am.  Dec.  718;  WilHams  v.  State,  19  Ga. 
403.  So  that  now,  in  the  leading  text-books,  it  is  laid  down  that  if  a 
witness  is  kept  away  by  the  adverse  party,  his  testimony,  taken  on  a 
former  trial  between  the  same  parties  upon  the  same  issues,  may  be 
given  in  evidence.  1  Greenl.  Evid.  §  163 ;  1  Taylor,  Evid.  §  446.  Mr. 
Wharton  (1  Whart.  Evid.  §  178)  seemingly  limits  the  rule  somewhat, 
and  confines  it  to  cases  where  the  witness  has  been  corruptly  kept  away 
by  the  party  against  whom  he  is  to  be  called,  but  in  reality  his  state- 
ment is  the  same  as  that  of  the  others;  for  in  all  it  is  implied  that 
the  witness  must  have  been  wrongfully  kept  away.  The  rule  has  its 
foundation  in  tlie  maxim  that  no  one  shall  be  permitted  to  take  ad- 
vantage of  his  own  wrong;  and,  consequently,  if  there  has  not  been, 
in   legal   contemplation,  a   wrong   committed,   the  way   has  not  been 

3  5  The  resolutions  of  the  judges  on  these  questions,  as  reported  in  Kelynge, 
55,  are  as  follows: 

"4.  It  was  resolved  by  us  all,  that  in  case  any  of  the  witnesses  which  were 
exaiuined  before  the  coroner,  were  dead  or  unable  to  travel,  and  oath  made 
thereof,  that  then  the  exammations  of  such  witnesses,  so  dead  or  unable  to 
travel  might  be  read,  the  coroner  first  making  oath  that  such  examinations 
are  the  same  which  he  took  upon  oath,  without  any  addition  or  alteration 
whatsoever. 

"5.  That  in  case  oath  should  be  made  that  any  witness  who  had  been  ex- 
amined by  the  coroner,  and  was  then  absent,  was  detained  by  the  moans  or 
procurement  of  the  prisoner,  and  the  opinion  of  the  judges  asked  whether 
such  examiuation  might  be  read,  we  should  answer,  that  if  their  Lordships 
were  satisfied  by  the  evidence  they  had  heard,  that  the  witness  was  detained 
by  means  or  procurement  of  the  prisoner  then  the  examination  might  be 
read,  but  whether  he  was  detained  by  the  means  or  procurement  of  the  pris- 
oner, was  matter  of  fact,  of  which  we  were  not  judges,  but  their  lordships. 

"6.  Agreed,  that  if  a  witness  who  was  examined  by  the  coroner  be  absent, 
and  oath  is  made  that  they  have  used  all  their  endeavours  to  find  him  and 
cannot  find  him,  that  is  not  sufficient  to  authorize  the  reading  of  such  ex- 
amiualion." 


458  HEARSAY  (Ch.  3 

opened  for  the  introduction  of  the  testimony.  We  are  content  with 
this  long-estabUshed  usage,  which,  so  far  as  we  have  been  able  to  dis- 
cover, has  rarely  been  departed  from.  It  is  the  outgrowtli  of  a 
maxim  based  on  the  principles  of  common  honesty,  and,  if  properly 
administered,  can  harm  no  one. 

Such  being  the  rule,  the  question  becomes  practically  one  of  fact, 
to  be  settled  as  a  preliminary  to  the  admission  of  secondary  evidence. 
In  this  respect  it  is  like  the  preliminary  question  of  the  proof  of  loss 
of  a  written  instrument,  before  secondary  evidence  of  the  contents 
of  the  instrument  can  be  admitted.  In  Lord  Morley's  Case,  supra, 
it  would  seem  to  have  been  considered  a  question  for  the  trial  court 
alone,  and  not  subject  to  review  on  error  or  appeal;  but  without 
deeming  it  necessary  in  this  case  to  go  so  far  as  that,  we  have  no 
hesitation  in  saying  that  the  finding  of  the  court  below  is,  at  least, 
to  have  the  effect  of  a  verdict  of  a  jury  upon  a  question  of  fact,  and 
should  not  be  disturbed  unless  the  error  is  manifest.     *     *     * 

Judgment  affirmed.^® 


WARREN  et  al.  v.  NICHOLS. 
(Supreme  Judicial  Ck)urt  of  Massachusetts,  1843.    6  Mete.  261.) 

The  plaintiffs,  for  the  purpose  of  showing  the  trespass  alleged,  and 
the  circumstances  under  which  it  occurred,  offered  Oliver  Luce  as  a 
a  witness,  by  whom  they  proposed  to  prove  the  testimony  given,  on  a 
former  trial  of  this  cause  in  the  court  of  common  pleas,  by  Jonathan 
W.  Brown,  since  deceased.  Upon  inquiry  whether  the  witness  could 
state  the  testimony  given  by  said  Brown  on  said  trial,  the  witness  re- 
plied, that  he  could  give  the  substance  of  it,  but  not  the  precise  lan- 
guage of  Brown ;  and  the  court  ruled,  that  the  witness  was  incom- 
petent to  testify  upon  this  point,  unless  he  could  state  the  words  used 
by  the  deceased  witness,  in  giving  his  testimony,  and  not  what  he  sup- 
posed to  be  the  substance  of  his  testimony.  The  witness  said  he  could 
not  give  the  words,  or  the  precise  language,  used  by  Brown ;  and  he 
was  thereupon  rejected. ^^ 

SiiAVv,  C.  J.  The  jury  in  this  action,  which  is  trespass  quare 
clausum  fregit,  having  returned  a  verdict,  that  the  alleged  trespass 
was  casual  and  involuntary,  and  assessed  the  damages  at  $12,  and  it 
appearing  that  $12  had  been  tendered  as  damages,  before  the  action 
was  brought,  the  defendant  moves  for  judgment.    This  is  opposed  by 

30  In  civil  cases,  mere  ab.sonce  of  the  witness  from  the  jurisdiction  is  gen- 
erallj'  re;;ard('d  as  sufliciout  to  lot  in  liis  lOrnicr  testimony,  Minneapolis  Mill 
Co.  V.  Minneapolis  &  St.  L.  Ky.  Co.,  51  .Minn.  301,  53  N.  W.  0.39  (1.VJ2) ;  and 
the  same  rule  has  been  applied  in  a  number  of  criminal  cases,  I'ruitt  v.  State, 
92  Ala.  41,  9  South.  400  (1S90).  But  see  State  v.  Houser,  20  Mo.  431  (1858), 
contra.  A  nunil)er  of  the  casos  are  collected  in  the  note  to  State  v.  Heflernan, 
25  L.  II.  A.   (N.  S.)  8(38  (1908). 

37  Statement  conden.sed  and  part  of  oi)!nlon  omitted. 


Sec.  2)  RECOGNIZED  BXCErXIONS  459 

the  plaintiffs,  who  move  for  a  new  trial  on  the  grcand  stated  in  the 
report.  The  principal  one  is,  that  the  testimony  of  Oliver  Luce,  as 
to  what  a  deceased  witness,  Brown,  had  formerly  testified,  in  this 
cause,  in  the  court  of  common  pleas,  and  which  was  tendered  by  the 
plaintiffs,  ought  to  have  been  received. 

The  rule  upon  which  evidence  may  be  given  of  what  a  deceased  wit- 
ness testified  on  a  former  trial  between  the  same  parties,  in  a  case 
where  the  same  question  was  in  issue,  seems  now  well  established  in 
this  Commonwealth  by  authorities.  It  was  fully  considered  in  the 
case  of  Commonwealth  v.  Richards,  18  Pick.  434,  29  Am.  Dec.  608. 
The  .principle  on  which  this  rule  rests  was  accurately  stated,  the  cases 
in  support  of  it  were  referred  to,  and  with  the  decision  of  which  we 
see  no  cause  to  be  dissatisfied.  The  general  rule  is,  that  one  person 
cannot  be  heard  to  testify  as  to  what  another  person  had  declared, 
in  relation  to  a  fact  within  his  knowledge,  and  bearing  upon  the  issue. 
It  is  the  familiar  rule  which  excludes  hearsay.  The  reasons  are  ob- 
vious, and  they  are  two.  First,  because  the  averment  of  fact  does  not 
come  to  the  JU17  sanctioned  by  the  oath  of  the  party  on  whose  knowl- 
edge it  is  supposed  to  rest;  and  secondly,  because  the  party,  upon 
whose  interests  it  is  brought  to  bear,  has  no  opportunity  to  cross-ex- 
amine him  on  whose  supposed  knowledge  and  veracity  the  truth  of 
the  fact  depends. 

Now,  the  rule,  which  admits  evidence  of  what  another  said  on  a 
former  trial,  must  effectually  exclude  both  of  these  reasons.  It  must 
have  been  testimony,  that  is,  the  affirmation  of  some  matter  of  fact, 
under  oath,  it  must  have  been  in  a  suit  between  the  same  parties  in  in- 
terest, so  as  to  make  it  sure  that  the  party,  against  whom  it  is  now 
offered,  had  an  opportunity  to  cross-examine ;  and  it  must  have  been 
upon  the  same  subject-matter,  to  show  that  his  attention  was  drawn 
to  points  now  deemed  important.  It  must  be  the  same  testimony 
which  the  former  witness  gave,  because  it  comes  to  the  jury  under 
the  sanction  of  his  oath,  and  the  jury  are  to  weigh  the  testimony,  and 
judge  of  it,  as  he  gave  it.  The  witness,  therefore,  must  be  able  to  state 
the  language  in  which  the  testimony  was  given,  substantially  and  in 
all  material  particulars,  because  that  is  the  vehicle,  by  which  the  tes- 
timony of  the  witness  is  transmitted,  of  which  the  jury  are  to  judge. 
If  it  were  otherwise,  the  statement  of  the  witness,  which  is  offered, 
would  not  be  of  the  testimony  of  the  former  witness ;  that  is,  of  the 
ideas  conveyed  by  the  former  witness  in  the  language  in  which  he  em- 
bodied them ;  but  it  would  be  a  statement  of  the  present  witness's  un- 
derstanding an^'  comprehension  of  those  ideas,  expressed  in  language 
of  his  own.  Those  ideas  may  have  been  misunderstood,  modified,  per- 
verted or  colored,  by  passing  through  the  mind  of  the  witness,  by 
his  knowledge  or  ignorance  of  the  subject,  or  the  language  in  which 
the  testimony  was  given,  or  by  his  own  prejudices,  predilections  or 
habits  of  thought  and  reasoning.    To  illustrate  this  distinction,  as  we 


460  HEARSAY  (Ch.  3 

understand  it  to  be  fixed  by  tlie  cases:  If  a  witness,  remarkable  for 
his  knowledge  of  law  and  his  intelligence  on  all  other  subjects,  of  great 
quickness  of  apprehension  and  power  of  discrimination,  should  de- 
clare that  he  could  give  the  substance  and  effect  of  a  former  witness's 
testimony,  but  could  not  recollect  his  language,  we  suppose  he  would 
be  excluded  by  the  rule.  But  if  one  of  those  remarkable  men  should 
happen  to  have  been  present,  of  great  stolidity  of  mind,  upon  most 
subjects,  but  of  extraordinary  tenacity  of  memory  for  language,  and 
who  could  say  that  he  recollected  and  could  repeat  all  the  words  ut- 
tered by  the  witness;  although  it  should  be  very  manifest  that  he 
himself  did  not  understand  them,  yet  his  testimony  would  be  admis- 
sible. 

The  witness  called  to  prove  former  testimony  must  be  able  to  sat- 
isfy one  other  condition,  namely,  that  he  is  able  to  state  all  that  the 
witness  testified  on  the  former  trial,  as  well  upon  the  direct  as  the 
cross  examination.    The  reason  is  obvious.    One  part  of  his  staternent 
may  be  qualified,  softened  or  colored  by  another.     And  it  would  be 
of  no  avail  to  the  party  against  whom  the  witness  is  called  to  state  the 
testimony  of  the  former  witness,  that  he  has  had  the  right  and  op- 
portunity- to  cross-examine  that  former  witness,  with  a  view  of  dimin- 
ishing the  weight  or  impairing  the  force  of  that  testimony  against  him, 
if   the  whole  and  entire  result  of   that  cross-examination  does   not 
accompany  the  testimony.     It  may  perhaps  be  said,  that,  with  these 
restrictions,  the  rule  is  of  little  value.     It  is  no  doubt  true,  that  in 
most  cases  of  complicated  and  extended  testimony,  the  loss  of  evi- 
dence by  the  decease  of  a  witness  cannot  be  avoided.     But  the  same 
resuh  follov/s,  in  most  cases,  from  the  decease  of  a  witness,  whose 
testimony  has  not  been  preserved  in  some  of  the  modes  provided  by 
law.     But  there  are  some  cases,  in  which  the  rule  can  be  usefully 
applied,  as  in  case  of  testimony  embraced  in  a  few  words — such  as 
proof  of  demand  or  notice  or  notes  or  bills — cases  in  which  large 
amounts  are  often  involved.     If  it  can  be  used  in  a  few  cases,  con- 
sistently with  the  true  and  sound  principles  of  the  law  of  evidence, 
there  is  no  reason  for  rejecting  it  altogether.    At  the  same  time,  care 
should  be  taken  so  to  apply  and  restrain  it,  that  it  may  not,  under 
a  plea  of  necessity,  and  in  order  to  avoid  hard  cases,  be  so  used  as  to 
violate  those  principles.     It  is  to  be  recollected  that  it  is  an  exception 
to  a  general  rule  of  evidence  supposed  to  be  extremely  important  and 
necessary;    and  unless  a  case  is  brought  fully  within  the  reasons  of 
such  exception,  the  general  rule  must  prevail. 

I  am  aware  that  Mr.  Greenleaf,  in  his  learned  and  very  excellent 
treatise  on  Evidence,  §  165,  has  intimated  a  doubt  whether  it  is  wise 
to  hold  the  rule  in  question  with  this  strictness;  and  the  cases  from 
the  Pennsylvania  Reports  justify  the  suggestion,  and  warrant  a  more 
liberal  construction  of  the  rule,  so  far  as  it  is  practised  on  in  that 
State.     But  Mr.  Greenleaf  docs  not  cite  the  case  of  Commonwealth  v. 


3eC.  2)  RECOGNIZED  EXCEPTIONS  4G1 

Richards,  18  Pick.  434,  29  Am.  Dec.  608,  and  probably  he  had  not  ad- 
verted to  it,  when  his  treatise  was  written.  That  is  a  recent  case, 
and  one  which  we  are  bound  to  regard  as  of  high  authority  in  this 
Commonwealth. 

The  rule  in  regard  to  proving  what  a  witness  formerly  testified,  on 
a  prosecution  for  perjury,  does  not  seem  to  be  strictly  analogous. 
There,  if  it  is  proved  by  a  witness,  that  the  party  now  on  trial  formerly 
testified  positively  to  a  fact,  and  did  not  afterwards,  in  the  course  of 
his  testimony,  retract  or  modify  that  statement;  on  proof  that  the 
matter,  thus  testified  as  a  fact,  was  not  true,  and  the  witness  knew  it, 
the  perjury  assigned  may  be  considered  well  proved,  although  the  ac- 
cused testified  to  many  other  things,  on  the  same  trial,  which  the  wit- 
ness now  called  does  not  recollect,  and  which  perhaps  would  be  irrele- 
vant, if  he  could.  But  the  cases,  we  think,  stand  on  dififerent  grounds. 
Rex  V.  Rowley,  1  Mood.  Cr.  Cas.  111. 

All  that  the  witness  could  state,  in  the  present  case,  was,  that  he 
could, give  the  substance  of  the  witness's  testimony,  but  not  his  pre- 
cise language.  We  lay  no  stress  upon  the  epithet  "precise."  It  might 
properly  lead  to  a  further  preliminary  examination  of  the  extent  of 
his  knowledge,  and  probably  did  so.  As  he  could  only  give  the  sub- 
stance and  effect  of  the  testimony,  but  not  the  language  in  which  it 
was  given,  we  think  the  judge  did  right  in  excluding  him.     ♦     *     * 

Judgment  for  defendants.^® 


STATE  v.  ABLE. 

(Supreme  Court  of  Missouri,  1877.    65  Mo.  357.) 

Norton,  J.^^  *  *  *  It  having  thus  been  definitely  settled,  that 
the  evidence  of  a  witness  given  on  a  former  trial,  under  the  above  cir- 
cumstances, may  be  used  on  a  subsequent  trial,  when  the  witness  has 
died  in  the  mean  time,  the  question  arises  how  may  it  be  proved  ?  In 
the  case  of  United  States  v.  Macomb,  5  McLean,  286,  Fed.  Cas.  No. 
15,702,  Judge  Drummond  held  that  when  a  witness,  since  deceased,  had 
testified  at  the  preliminary  examination  in  relation  to  the  offense  in 

3  8  Where  a  statute  authorized  the  admission  of  certain  hearsay  statements 
by  persons  since  deceased,  the  same  court  has  ruled  that  it  is  not  necessary 
for  the  witness  to  be  able  to  repeat  the  exact  words,  but  that  it  is  sufficient 
to  give  the  substance  of  what  was  said,  observing  that:  "In  no  case  has  it 
been  held  that  the  testimony  is  to  be  received  only  when  the  witness  can 
give  the  exact  words  of  the  deceased  person  whose  declaration  is  material. 
Such  a  construction  of  the  statute  would  often  exclude  important  evidence 
which  the  Legislature  intended  to  make  admissible.  Indeed,  it  seldom  hap- 
pens after  the  lapse  of  any  considerable  time  that  a  witness  can  give  the 
exact  words  of  another,  unless  they  were  very  few.  The  ruling  was  in  ac- 
cordance with  the  usual  practice  when  a  conversation  is  put  in  evidence,  and 
we  are  of  opinion  that  it  was  right."  Hayes  v.  Pitts-Kimball  Co.,  183  Mass. 
262,  67  N.  E.  249  (1903). 

3  0  Part  of  opinion  omitted. 


462  HEARSAY  (Ch.  3 

the  presence  of  the  accused,  witnesses  would  be  permitted  to  prove 
what  the  deceased  witness  had  testified  to  at  such  examination,  and 
that  so  far  as  it  related  to  such  proof,  the  rules  of  evidence  were  the 
same  in  criminal  as  in  civil  cases.  The  conclusion  was  reached  in  that 
case  after  an  examination  of  the  authorities,  that  the  evidence  of  a 
deceased  witness  might  be  proved  in  a  criminal  case  in  the  same  man- 
ner that  it  could  be  in  a  civil  case,  and  that  in  making  such  proof  it 
was  not  necessary  to  use  the  precise  and  exact  words  of  the  witness, 
but  only  to  give  the  substance.  On  this  last  branch  of  the  proposition 
there  is  some  conflict  of  authority.  While  the  courts  of  New  York, 
Massachusetts  and  Indiana  hold  that  the  precise  words  of  the  witness 
must  be  given,  the  courts  of  Pennsylvania,  Maryland.  Virginia,  Ohio, 
Illinois,  Alabama  and  Vermont  hold  that  the  substance  of  v/hat  the 
deceased  witness  testified  to  may  be  received.  Cornell  v.  Green.  10 
Serg.  &  R.  (Pa.)  14;  Chess  v.  Chess,  17  Serg.  &  R.  (Pa.)  409;  Gilder- 
sleeve  v.  Caraway,  10  Ala.  260,  44  Am.  Dec.  485 ;  Wagers  v.  Dickey, 
17  Ohio,  439,  49  Am.  Dec.  467;  Marshall  v.  Adams,  11  111.  37;  Caton 
V.  Lenox.  5  Rand.  (Va.)  36;  State  v.  Hooker,  17  Vt.  659;  Kendrick 
v.  State,  10  Humph.  (Tenn.)  479:  Sloan  v.  Somers,  20  N.  J.  Law,  66; 
Ballenger  v.  Barnes,  14  N.  C.  460;  Young  v.  Dearborn,  22  N.  H.  372. 
In  the  case  of  Cornell  v.  Green,  supra,  Justice  Gibson,  in  speaking  of 
effects  of  a  rule  requiring  the  evidence  of  the  deceased  witness  to  be 
given  in  the  exact  v/ords  of  the  witness,  observed:  "The  rule  applied 
with  that  degree  of  strictness  would  be  altogether  useless  in  practice, 
for  there  is  no  man,  be  his  powers  of  recollection  what  they  may, 
who  could  be  qualified  to  give  such  evidence;  and  if  he  should  under- 
take to  swear  positively  to  the  very  words,  the  jury  ought  to  disbelieve 
him  on  that  account  alone." 

In  applying  the  rule  that  the  substance  of  what  the  deceased  witness 
testified  to  may  be  given  in  evidence  the  distinction  between  narrating 
the  statement  made  by  the  witness  and  giving  the  effect  of  his  testi- 
mony should  be  observed.  This  distinction  may  be  illustrated  thus: 
If  a  witness  state  that  A.,  as  a  witness  on  a  former  trial,  proved  the 
execution  of  a  written  instrument  by  B.,  that  would  be  giving  the  ef- 
fect of  his  testimony,  which  is  nothing  else  than  the  result  or  conclu- 
sion. But  if  the  witness  states  that  A.  testified  that  he  had  often  seen 
B.  write,  that  he  was  acquainted  with  his  hand  writing,  and  that  the 
name  subscribed  to  the  instrument  of  writing  exhibited  was  B.'s  signa- 
ture, that  would  be  giving  the  substance  of  A.'s  testimony,  though  it 
might  not  be  in  the  exact  words.  The  authorities  above  cited,  we 
think,  establish  the  following  propositions:  That  in  a  criminal  case 
the  evidence  of  a  deceased  witness,  who  was  testified  on  a  former 
trial  may  be  proved  and  received  on  a  subsequent  trial  of  the  same 
case  between  the  same  parlies,  the  death  of  the  witness  first  being 
shown ;  that  the  witness  called  to  prove  what  was  testified  to  by 
the  deceased  witness,  is  not  reciuired  to  use  the  exact  words  of  the 
witness,  but  may  give  the  substance  of  all  tliat  he  testified  to;    that  in 


Sec.  2)  RECOGNIZED   EXCEPTIONS  403 

proving  what  was  sworn  to  by  the  deceased  witness,  the  same  rules 
apply  both  in  civil  and  criminal  cases.  It  has  been  held  by  this  court 
in  the  case  of  Jaccard  et  al.  v.  Anderson,  Z7  Mo.  95,  that  the  testimony 
of  a  witness  since  deceased,  preserved  in  a  bill  of  exceptions,  filed  on 
the  former  trial  of  the  cause,  could  be  received  in  evidence,  v;hen 
proved  to  be  the  substance  of  the  testimony  which  the  deceased  wit- 
ness gave  on  the  former  trial.  In  disposing  of  this  question,  it  is  re- 
marked :  "that  it  is  to  be  presumed  that  the  bill  of  exceptions  contained 
all  the  testimony  of  the  witness  in  chief  and  on  cross-examination, 
which  the  parties  and  their  counsel  deemed  material  to  the  issue,  or 
necessary  to  be  saved  in  a  bill  of  exceptions.  On  the  face  of  the  tes- 
timony offered,  it  appears  to  have  been  all  that  was  given  or  deemed 
important  on  the  former  trial.  One  of  defendant's  counsel  testified 
that  he  assisted  in  preparing  the  former  bill  of  exceptions,  and 
that  he  thought  it  contained  in  substance  the  testimony  of  King  at  the 
trial,  though  'not  all  he  may  have  said.'  We  think  it  sufficiently  ap- 
pears that  the  substance  of  the  whole  testimony  was  contained  in  the 
bill  of  exceptions  that  was  offered  in  evidence." 

Applying  the  principle  of  the  decision  to  the  case  before  us,  it  will 
manifestly  appear  that  the  court,  in  admitting  the  evidence  of  the 
deceased  witness,  Holliday,  as  preserved  in  the  bill  of  exceptions, 
committed  no  error.  Haughawout,  one  of  the  defendant's  counsel, 
swears  that  he  kept  minutes  of  the  testimony  of  the  former  trial,  and 
prepared  the  bill  of  exceptions  from  his  own  minutes;  and,  Robin- 
son, another  attorney  of  defendant,  that  it  was  agreed  on  in  the  pres- 
ence of  the  judge  and  attorneys  for  the  State  and  defendant,  but  that 
he  could  not  state  that  it  contained  all  of  the  testimony  of  the  witness. 
The  evidence  of  this  witness  alone,  under  the  views  expressed  in  Jac- 
card V.  Anderson,  supra,  might  have  authorized  the  court  to  receive 
the  evidence.  The  testimony  of  Haughawout  is  more  than  supplement- 
ed by  that  of  Judge  Cravens  before  whom  the  first  trial  was  had,  and 
who  signed  the  bill  of  exceptions.  He  stated  as  certified  to  by  the 
special  judge,  that  he  remembered  the  substance  of  the  evidence  of 
Holliday,  the  deceased  witness,  and  that  he  thought  the  bill  of  ex- 
ceptions contained  the  substance  of  the  testimony.  It  is  urged  that  the 
court  committed  error  in  allowing  the  witness,  Cravens,  to  look  at 
the  bill  of  exceptions  to  refresh  himself  as  to  the  name  of  the  witness. 
This  we  think  was  permissible  and  we  can  see  no  error  in  it  authoriz- 
ing a  disturbance  of  the  judgment.  The  evidence  being  thus  identified, 
was  read  from  the  bill  of  exceptions,  and  it  appears  on  the  face  of  it, 
that  the  witness,  Holliday,  was  examined  in  chief,  cross-examined,  re- 
examined and  re-cross-examined.  Looking  through  the  whole  case, 
from  beginning  to  the  end  of  the  trial,  we  have  discovered  no  error 
authorizing  an  interference  with  the  judgment.  The  defendant  has 
been  twice  put  upon  his  trial,  and  has  been  twice  found  guilty  of  the 
crime  of  murder  in  the  first  degree.  The  evidence  seems  to  warrant 
the  finding  of  the  jury.     All  the  circumstances  proven  in  the  case 


464  HEARSAY  (Ch.  3 

(which  we  deem  unnecessary  to  advert  to  here)  point  to  defendant  as 
the  guilt}'  party. 

Judgment  affirmed,  the  other  judges  concurring. 

Affirmed.*" 


II.  Dying  Declarations 

THE  KING  V.  JOHN. 
(Court  of  King's  Bench,  1790.     1  East,  P.  C.  ,357.) 

On  the  prosecution  of  Thomas  John  for  the  murder  of  Rachael  his 
wife,  it  was  proved  by  the  confession  of  the  prisoner  himself  in  con- 
versation with  others  before  his  wife's  death,  that  in  September,  1789, 
upon  a  quarrel  between  them,  he  had  laid  hold  of  his  wife,  and  they  had 
fallen  down,  he  uppermost,  and  he  had  given  her  several  violent  kicks 
and  blows,  so  that  according  to  his  own  words,  he  knew  she  never 
would  raise  her  hand  against  him  again.  It  was  also  proved  that  she 
died  in  the  same  month ;  that  she  was  taken  ill  on  a  Friday,  took  to  her 
bed  the  next  day,  and  died  on  the  Sunday  seven  night  following,  be- 
ing confined  to  her  bed  by  her  illness,  which  was  severe,  the  whole 
time.  But  it  did  not  appear  that  she  had  expressed  any  apprehension 
of  danger,  though  she  retained  her  senses  till  the  day  before  her  death. 
Three  witnesses  deposed  to  conversations  during  her  illness,  at  which 
the  husband  was  present,  in  which  she  attributed  her  situation  to  his 
ill  treatment ;  and  the  conduct  and  answers  of  the  husband  were  given 
in  evidence,  although  it  was  objected  on  his  behalf  that  what  was  said 
by  the  wife  even  in  the  presence  of  the  husband,  and  to  which  he  re- 
turned answers  tending  to  charge  himself,  ought  not  to  have  been  re- 
ceived. Evidence  was  also  given  of  her  declarations  in  the  prisoner's 
absence,  after  she  was  confined  to  her  bed,  all  of  which  tended  to  shew 
the  circumstances  of  violence  he  had  committed  upon  her.  It  was  ob- 
jected, that  the  declarations  of  the  wife  in  the  absence  of  the  prisoner 
ought  not  to  have  been  admitted  in  evidence,  as  it  was  not  proved  thai 
she  considered  herself  at  the  time  as  a  dying  person;  the  evidence  not 
being  express  on  that  head ;  but  that  if  the  evidence  were  admissible, 
it  ought  to  have  been  left  to  the  jury  to  consider  whether  the  wife  were 
at  the  time  conscious  of  approaching  death.  Objection  was  also  made, 
that  there  being  declarations  of  a  wife  against  her  husband  were  not  on 
that  account  evidence.  The  court  was  of  opinion,  that  the  reason  of 
the  rule  that  a  wife  shall  not  be  admitted  to  give  evidence  against  her 
husband  did  not  apply  to  this  case.  And  upon  the  other  point,  that 
the  evidence  of  the  state  of  the  wife's  health  at  the  time  the  declarations 

40  In  Kufh  V.  Koc'k  Island.  1)7  U.  S.  vm,  24  L.  Ed.  1101  (1878),  the  same 
rule  was  applied  to  the  proof  of  the  contents  of  a  deiwsltlon  which  had  been 
destroyed  in  tin-  ChlcnKo  fin'. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  465 

were  made  was  sufficient  to  shew  that  she  was  actually  dying;  and 
that  it  was  to  be  inferred  from  it,  that  she  was  conscious  of  her  situa- 
tion;  and  no  particular  direction  was  given  to  the  jury  on  the  subject. 
The  jury  having  found  the  prisoner  guilty,  these  points  were  referred 
to  the  judges;  who  at  a  conference  in  Easter  term,  1790,  all  agreed 
that  it  ought  not  to  be  left  to  the  jury  to  say,  whether  the  deceased 
thought  she  was  dying  or  not;  for  that  must  be  decided  by  the  judge 
before  he  receives  the  evidence.  And  if  a  dying  person  either  declare 
that  he  knows  his  danger,  or  it  is  reasonable  to  be  inferred  from  the 
wound  or  state  of  illness  that  he  was  sensible  of  his  danger,  the  dec- 
larations are  good  evidence.  But  as  to  the  declarations  themselves  in 
this  case,  all  the  judges,  except  two,  thought  that  there  was  no  founda- 
tion for  supposing  that  the  deceased  considered  herself  in  any  danger 
at  all." 


DOE  dem.  SUTTON  v.  RIDGWAY. 
(Court  of  King's  Bench,  1820.    4  Barn.  &  Aid.  53.) 

Ejectment  to  recover  lands  in  the  county  of  Somerset.  Plea,  gen- 
eral issue.  At  the  trial,  before  Burrough,  J.,  at  the  last  Summer  as- 
sizes for  that  county,  the  lessor  of  the  plaintiff,  who  claimed,  as  heir 
at  law  of  Anne  Walker,  the  person  last  seised,  in  order  to  deduce  the 
pedigree,  offered  in  evidence  the  dying  declarations  of  one  Barrett,  who 
had  as  she  herself  stated,  been  servant  to  Margaret  Walker,  through 
whom  the  pedigree  *-  was  traced.  This  person  had,  during  her  last  ill- 
ness, at  the  age  of  103,  after  she  had  expressed  her  full  conviction 
that  she  could  not  recover,  and  only  a  few  days  before  her  death, 
made  these  declarations.  The  learned  judge  rejected  the  evidence; 
and  the  defendant  having  obtained  a  verdict, 

Scarlett  moved  for  a  new  trial.  These  declarations  ought  to  have 
been  received  in  evidence.  The  principle  on  which  such  evidence  is 
receivable  is  stated  to  be  founded  partly  on  the  situation  of  the  dying 
person,  which  is  considered  as  powerful  over  his  conscience  as  the  ob- 
ligation of  an  oath,  and  partly  on  the  absence  of  interest  at  such  a  time, 
which  dispenses  with  the  necessity  of  a  cross-examination,  Phillipps  on 
Evidence,  100,  1st  edit. ;  and  this  equally  applies  to  civil  as  to  criminal 
cases.  This  will  be  found  laid  down  in  the  case  of  the  subscribing  wit- 
ness to  a  bond,  whose  dying  declarations  were  allowed  to  be  given  in 
evidence,  by  Heath,  J.,  cited  by  Lord  Ellenborough  in  Avison  v.  Kin- 
naird,  6  East,  195,  to  prove  it  a  forgery  and  in  Wright  dem.  Clymer 
V.  Littler,  3  Burr.  1244.    And  in  Drummond's  Case,  1  Leach,  Cro.  Cas. 

41  Foi-  the  respective  functions  of  the  judfre  and  jury  in  such  cases,  see 
Brister  v.  State,  26  Ala.  107  (1855),  ante,  p.  120;  State  v.  Monich,  74  N.  J. 
Law.  522,  CA  Atl.  1016  (190G). 

4  2  See  Johnson  v.  Lawson,  post,  p.    664. 
HiNT.Ev.— 30 


466  HEARSAY  (Ch.  3 

37S,  it  seeiiis  ::  r  Seen  admitted,  that  tlie  dying  declarations  of  a 
person,  as  :o  his  ^  stolen  a  watdi,  would  be  admissible,  altliough 

there  ihe  e^nGence  \N-as  rejected,  on  the  ground  that  tlie  pany  making 
ihe  declaraiicns  was  an  attainted  con\ict-  Here  the  part}-  was  in  ar- 
ticolo  n^crds,  and  could  liave  no  motive  for  deceit.  The  declarations 
ocgbi,  therefore,  to  have  been  received.  He  also  referred  to  Tinkler's 
Case,  1  East,  PL  Cr.  354. 

Abbott,  C>  J.  The  cases  cited,  are  I  believe,  the  only  exceptions 
to  the  genera",  role  of  not  recei\-ing  evidence,  unless  upon  oatli,  and 
witfa  tt:  rrunitv"  for  cross-examinaiion.     I  am  not  aware  of  any 

other;  i  .  seems  to  me,  that  the  present  case  does  not  fall  wiihin 
these  e::  '-      The  evidence,  therefore,  was  properly  rejected  by 

the  lear:       .      ^  . 

Eavixy,  J.  In  the  case  of  Avison  v.  Kinnaird,  the  declarations 
were  rerrived  iqion  a  very  di^ereni  principle.  There  they,  were  part  of 
the  res  gestae;  and.  in  Tinkler's  Case,  the  declarations  received  were 
-J  '    ■-"  -rarty  who  had  taken  the  poison.     The  case  of  tlie  sub- 

5 :  _  ,  ..  .-.c£S  seems  to  be  founded  on  this :  he  must  have  been  called 
a5  i  -ess,  if  he  had  been  alive,  and  it  would  then  have  been  compe- 
tent to  prove,  by  cross-examination,  his  declarations  as  to  tlie  forgery- 
of  the  bond.  Now  the  party  ought  not,  by  the  death  of  the  witness,  to 
be  deprived  of  obtaining  die  advantage  of  such  evidence.  This  case, 
however,  is  very  difierent. 

HoLROYD  and  B^t,  JT-  concurred. 

A  nde  n^«^  was  afterwards  granted  on  other  groimds. 


CO:vi:^IOX\\'EALTH  V.  COOPER. 

rSopreioe  Jcdidal   Court  of   Ma=saoliu5et:=,    1S52.     5    Allen,    i^o.    81   Am. 

Dec.  702.; 

In i:  rirr.eni  for  rrjanslaugbter  in  killing  Phebe  Fuller  by  striking  her 
t:'C'  :ht  head  with  a  certain  instrument  called  a  "fid." 

A:  ihe  trial  in  the  superior  court,  before  Erigham,  J.,  it  appeared 
that  Pnebe  died  on  the  12th  of  December,  1860,  in  consequence  of 
wounds  and  injuries  inflicted  upon  her  by  some  person  at  her  home  in 
Xaatudat,  on  the  evening  of  November  22,  1860.  John  H.  Sherman, 
the  physician  who  attended  her,  testified  that  on  the  morning  of  the 
2'--  '-'  "''-jvember  she  told  him  that  she  should  never  be  any  better, 

c:  3e\-er  recover;   that  he  told  her  he  hoped  she  might,  that 

she  was  better;  and  that  she  replied  that  she  had  received  a  mortal 
injury,  Nathaniel  Fitzgerald,  called  as  a  witness  on  the  part  of  the 
C  'J,  testified  that  a  little  after  noon  on  the  25th  of  No- 

ve7.'>:^r  ;.e  ci^iJed  to  see  Phebe;  that  she  said  she  could  not  live,  and 
had  scr.*  -'"  him  to  make  one  request,  and  said:  "I  cannot  live,  let 
no  one  : .    .     me  to  the  grave;  I  am  principled  against  it."    The  wit- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  407 

ness  was  then  allowed  to  testify,  under  objection,  that  Phebe  stated 
to  him  that  Patience  Cooper  committed  the  deed ;  that  she  came  in 
and  said,  "How  da  j'ou  do?  I  have  come  to  pay  my  bill,"  and  the 
deceased  got  up  to  snuff  the  wick  of  the  lamp,  when  Patience  struck 
her. 

The  defendant  offered  to  prove  by  several  witnesses  with  whom 
Phebe  was  well  acquainted  that  she  had  met  them  and  talked  with 
them,  mistaking  them  at  the  time  for  other  persons  whom  they  did 
not  resemble,  and  that  she  was  in  the  habit  of  thus  mistaking  persons ; 
but  the  evidence  was  rejected. 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions. ^^ 

Metcalf,  J.  The  court  are  of  opinion  that  the  testimony  of  Fitz- 
gerald, as  to  the  statement  made  to  him  by  the  deceased  concerning 
the  assault  upon  her  by  the  defendant,  was  rightly  admitted  in  evidence 
as  a  dying  declaration.  The  deceased  had  said  to  him  that  she  could 
not  live,  and  that  she  had  sent  for  him  to  make  a  request  respecting  her 
funeral.  We  think  this  satisfactorily  shows  that  her  subsequent  state- 
ment was  made  under  a  sense  of  impending  death — a  consciousness 
that  she  was  near  her  end.  1  Greenl.  Ev.  §  158;  Commonwealth  v. 
Casey,  11  Cush.  421,  59  Am.  Dec.  150.  She  Hved  seventeen  days  aft- 
erwards ;  but  declarations  made  by  a  deceased  person,  when  he  be- 
lieved that  he  should  not  recover,  have  been  decided  to  be  admissible 
although  he  lived  eleven  days  after  making  them.  Rex  v.  Mosley,  1 
Mood.  C.  C.  97,  and  Regina  v.  Reaney,  7  Cox,  C.  C.  209.  And  our 
judgment  concurs  with  that  of  the  English  court  of  criminal  appeal, 
as  expressed  by  Chief  Baron  Pollock,  in  the  latter  of  those  cases.  "In 
order,"  he  says,  "to  render  such  a  declaration  admissible,  it  is  neces- 
sary that  it  should  be  made  under  the  apprehension  of  death.  The 
books  certainly  speak  of  near  approaching  death ;  but  there  is  no  case 
in  which  any  particular  interval,  any  number  of  hours  or  days,  is 
specified  as  the  limit.  In  trutli,  the  question  does  not  depend  upon  the 
length  of  interval  between  the  death  and  declaration,  but  on  the  state 
of  the  man's  mind  at  the  time  of  making  the  declaration,  and  his  be- 
lief that  he  is  in  a  dying  state."  S.  C.  Dearsly  &  Bell,  151.  See  also 
Matthews  on  Crim.  Law,  254 ;  Powell  on  Ev.  125-127 ;  1  Phil.  Ev. 
(4th  Amer.  Ed.)  293.    Rose.  Crim.  Ev.  (5th  Ed.)  34.     *     *     * 

But  the  court  are  of  opinion  that  the  testimony  should  not  have  been 
excluded  which  was  offered  to  show  that  the  deceased  had  met  with 
persons  well  acquainted  with  her,  and  with  whom  she  was  well  ac- 
quainted, and  had  mistaken  them  at  the  time  for  other  persons  whom 
they  did  not  resemble;  and  that  she  was  in  the  habit  of  thus  mistak- 
ing persons.  We  think  this  was  testimony  proper  for  the  considera- 
tion of  the  jury. 

*s  Statement  condensed  and  part  of  opinion  omitted. 


468  HEARSAY  (Ch.  3 

The  great  question  in  the  case  was,  whether  the  defendant  was  the 
person  who  caused  the  deceased's  death — a  question  of  identity.  And 
according  to  the  declaration  of  the  deceased,  the  assault  was  made 
upon  her  immediately  after  the  person  making  it  had  entered  her  room, 
which  was  dimly  lighted,  and  before  that  person  had  uttered  a  dozen 
words. 

A  defendant  against  whom  dying  declarations  are  received  has  not 
the  opportunity  of  cross-examining  the  declarant.  Hence  it  is  justly 
held  that  he  is  entitled  to  every  allowance  and  benefit  that  he  may 
have  lost  by  the  absence  of  the  opportunity  of  a  more  full  investi- 
gation by  means  of  cross-examination.  Ashton's  case,  2  Lewin,  C.  C. 
147.  "It  is  to  be  considered,"  says  Mr.  Greenleaf,  "that  the  particu- 
lars of  the  violence,  to  which  the  deceased  has  spoken,  were  in  gen- 
eral likely  to  have  occurred  under  circumstances  of  confusion  and 
surprise  calculated  to  prevent  their  being  accurately  observed;  and 
leading  both  to  mistakes  as  to  the  identity  of  persons,  and  to  the  omis- 
sion of  facts  essentially  important  to  the  completeness  and  truth  of 
the  narrative."     1  Greenl.  Ev.  §  162. 

New  trial  granted.** 


THE  QUEEN  v.  JENKINS. 

(Court  of  Criminal  Appeal,  1869.    L.  R.  1  Cr.  Cas.  187.) 

The  defendant  was  found  guilty  of  murder  and  sentenced  accord- 
ingly, but  execution  was  stayed  in  order  that  the  opinion  of  the  court 
might  be  taken  on  the  admissibility  of  a  dying  declaration.*^ 

Kelly,  C.  B.  We  are  all  of  opinion  that  the  conviction  must  be 
quashed.  The  question,  and  the  only  question,  is,  whether  the  decla- 
ration of  the  dying  woman  was  admissible  in  evidence,  because  it  is 
clear  that  if  the  declaration  is  to  be  excluded,  there  was  no  evidence 
to  go  to  the  jury.  This  question  depends  upon  what  passed  between 
the  clerk  and  the  deceased  just  before  and  at  the  time  when  the  state- 
ment was  made.  She  was  asked  if  she  felt  she  was  in  a  dangerous 
state,  whether  she  felt  she  was  likely  to  die?  She  said  "I  think  so." 
She  did  not  express  an  absolute  belief,  but  an  impression,  that  she  was 
likely  to  die.  There  is  nothing  conclusive  in  this  part  of  the  statement. 
The  clerk  then  went  on  to  ask  her  why  she  thought  that  she  was  about 
to  die.  She  replied,  "From  the  shortness  of  my  breath."  The  clerk 
says,  "Her  breath  was  extremely  short — the  answers  were  disjointed 
from  its  shortness.  Some  intervals  elapsed  between  her  answers." 
The  clerk  then  said  to  her,  "Is  it  with  the  fear  of  death  before  you 

*♦  But  where  the  victim  lives  for  a  considerable  time  after  making  a  dy- 
ing dof.laration,  It  cannot  be  assumed  that  later  statements  were  made  under 
the  same  senso  of  Impending  death,  as  the  llrst.  Carver  v.  United  StateS: 
ICO  U.  S.  553,  16  Sup.  Ct  388,  40  L.  Ed.  5312  (189G). 

♦  ''  Statement-  condensed. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  469 

that  you  make  these  statements?"  And  added,  "Have  you  any  pres- 
ent hope  of  your  recovery?"  She  said,  "None."  Thereupon  he 
wrote  out  what  he  conceived  to  be  the  substance  of  her  statement.  Aft- 
er detaiHng  the  facts  of  the  case,  the  statement  as  he  wrote  it  made 
her  say,  "I  have  felt  great  pain  in  my  chest,  bosom,  and  back.  From 
the  shortness  of  my  breath,  I  feel  that  I  am  likely  to  die,  and  I  have 
made  the  above  statement  with  the  fear  of  death  before  me,  and  with 
no  hope  of  my  recovery."  If  the  deceased  had  subscribed  this  declara- 
tion, a  very  difficult  question  might  have  arisen.  But  it  appears  that 
after  reading  over  these  words  to  her,  and  asking  her  to  correct  any 
mistake  he  might  have  made,  she  suggested  the  words  "at  present." 
She  said  no  hope  "at  present"  of  my  recovery.  The  clerk  then  inter- 
lined the  words  "at  present." 

The  question  is,  whether  this  declaration  as  it  now  stands  was  ad- 
missible in  evidence.  The  result  of  the  decision  is,  that  there  must  be 
an  unqualified  belief  in  the  nearness  of  death,  a  belief  without  hope  that 
the  declarant  is  about  to  die.  If  we  look  at  reported  cases,  and  at  the 
language  of  learned  judges,  we  find  that  one  has  used  the  expression 
"every  hope  of  this  world  gone"  Per  Eyre,  C.  B.,  Woodcock's  Case,  1 
Leach,  C.  C.  at  page  502;  another  "settled  hopeless  expectation  of 
death"  Per  Willes,  J.,  Reg.  v.  Peel,  2  F.  &  F.  at  page  22 ;  another  "any 
hope  of  recovery,  however  slight,  renders  the  evidence  of  such  decla- 
rations inadmissible."  Per  Tindal,  C.  J.,  Rex  v.  Hayward,  6  C.  &  P. 
at  page  160.  We,  as  judges,  must  be  perfectly  satisfied  beyond  any 
reasonable  doubt  that  there  was  no  hope  of  avoiding  death ;  and  it  is 
not  unimportant  to  observe  that  the  burthen  of  proving  the  facts  that 
render  the  declaration  admissible  is  upon  the  prosecution. 

If  the  present  case  had  rested  upon  the  expression,  "I  have  made 
the  above  statement  with  the  fear  of  death  before  me,  and  with  no 
hope  of  my  recovery,"  a  difficult  question  might  have  been  raised. 
But  when  these  words  were  read  over  to  the  declarant,  she  desired  to 
put  in  the  important  words  "at  present ;"  and  the  statement  so  amended 
is  "with  no  hope  at  present  of  my  recovery."  We  are  now  called  up- 
on to  say  what  is  the  effect  of  these  words,  taking  into  consideration 
all  the  circumstances  under  which  they  were  put  in.  The  counsel  for 
the  prosecution  has  argued  that  the  words  "at  present"  do  not  alter  the 
sense  of  the  statement.  We  think,  however,  that  they  must  have  been 
intended  to  convey  some  meaning,  and  we  must  endeavor  to  give  ef- 
fect to  that  meaning. 

It  is  possible  that  when  the  statement  was  first  read  over  to  the  de- 
ceased, she  may  have  remembered  that  what  she  had  been  asked  was, 
whether  she  had  "any  present  hope  of  recovery,"  and  observing  that  the 
word  "present"  was  omitted,  that  she  merely  wished  to  correct  the  dis- 
crepancy between  the  words  as  spoken  and  those  written  down,  without 
wishing  to  make  any  alteration  in  the  meaning  of  those  words.  On  the 
other  hand,  she  may  have  meant  to  alter  and  qualify  the  statement  as 
first  written.     She  may  have  wished  to  express,  "All  I  meant  to  say 


470  HEARSAY  (Ch.  3 

was,  'I  have  not  hope  at  present ;' "  but  not  to  say  that  she  had  abso- 
hitely  no  hope.  The  case  is  capable  of  either  of  these  two  construc- 
tions, one  of  which  is  against  and  the  other  in  favour  of  the  prisoner; 
and  if  we  had  simply  to  choose  between  the  two,  without  anything  to 
guide  us  as  to  the  real  meaning  of  the  deceased,  we  should  resolve  the 
doubt  in  favour  of  the  prisoner  in  favorem  vita^. 

But  another  mode  of  solution  is  presented  which  calls  on  us  to  de-. 
cide  for  the  prisoner  on  another  ground.  The  deceased  was  asked  in 
express  terms  by  the  clerk  "to  correct  any  mistake  that  he  might  have 
made."  She  then  said,  "Put  in  the  words  'at  present.'  "  Even  if  this 
were  not  a  criminal  case,  this  would  be  sufficient  to  show  that  the  omis- 
sion of  "at  present"  was  a  mistake — that  she  meant  "no  present  hope" 
as  distinguished  from  "no  hope."  She  therefore  intended  the  words 
to  have  some  substantial  meaning;  and  if  they  have  any  meaning  at 
all,  they  must  qualify  the  absolute  meaning  which  the  declaration  must 
contain  in  order  to  render  it  admissible  evidence.  The  conviction 
must  therefore  be  quashed. 

Byles,  J.  As  I  tried  the  case,  I  wish  to  state  that  I  entertain  no 
doubt  that  the  declaration  was  not  admissible.  There  being  no  oth- 
er evidence  against  the  prisoner,  I  thought  it  best  to  admit  the  declara- 
tion, and  reserve  the  point  v.'hether  it  was  admissible  evidence. 

Dying  declarations  ought  to  be  admitted  with  scrupulous,  and  I  had 
almost  said  with  superstitious,  care.  They  have  not  necessarily  the 
sanction  of  an  oath ;  they  are  made  in  the  absence  of  the  prisoner;  the 
person  making  them  is  not  subjected  to  cross-examination,  and  is  in 
no  peril  of  prosecution  for  perjury.  There  is  also  great  danger  of 
omissions,  and  of  unintentional  misrepresentations,  both  by  the  de- 
clarant and  the  witness,  as  this  case  shews.  In  order  to  make  a  dying 
declaration  admissible,  there  must  be  an  expectation  of  impending  and 
almost  immediate  death,  from  the  causes  then  operating.  The  au- 
thorities shew  that  there  must  be  no  hope  whatever. 

In  this  case  the  deceased  said  originally  she  had  no  hope  at  present. 
The  clerk  put  down  that  she  had  no  hope.  She  said  in  effect  wlien 
the  statement  was  read  over  to  her,  "No,  that  is  not  wiiat  I  said,  nor 
what  I  mean.  I  mean  that  at  present  I  have  no  hope;"  which  is,  or 
may  be,  as  if  she  had  said,  "If  I  do  not  get  better,  1  shall  die."  The 
conviction  must  be  quashed. 

Conviction  quashed.'"* 

*>■'  Miilkoy,  J.,  lu  Tracy  v.  People.  97  111.  101  (ISSO): 

"  •  *  ♦  Assumin;,'  tliut  tlie  docfiised  was  a  believer  In  a  future  state  of 
rewards  and  ijunisliinciits,  and  sudi  is  the  prosuiiii)tion  wlierc  nothing  ap- 
[lears  to  the  contrary,  the  use  of  profane  language  luiinediatcly  preceding  tlie 
statement  is  liardly  to  he  reconciled  with  the  as.sumption  that  he  was  at  the 
time  of  sound  mind  and  Impressed  with  a  sense  of  almost  innnediate  death. 
To  .say  tlie  least  of  It,  it  was  a  fact  wiiieh,  if  pruved,  would  havo  (ended 
strongly  to  negative  that  hypothesis,  and  should  llierofore  have  been  received 
and  considered  by  the  court  in  connection  with  the  otlier  facts  and  circum- 
stances bearing  upon  the  question.  It  Is  hard  to  realize  how  any  sane  man 
who  believes  in  his  accountaitility  to  Ood  can  be  indulging  in  profanity  when 


Sec.  2)  RECOGNIZED  EXCEPTIONS  471 

BARFIELD  v.  BRITT.*^ 
(Supreme  Court  of  North  Carolina,  1854.    47  N.  C.  41,  62  Am.  Dec.  190.) 

Battle,  J.*^  Two  questions  are  presented  by  the  bill  of  excep- 
tions: First:  Whether  in  the  issue  joined,  upon  the  plea  of  justifica- 
tion, the  dying  declarations  of  Jacob  Britt  could  be  given  in  evidence 
by  the  defendant,  to  prove  the  truth  of  the  words  for  which  tlie  action 
was  brought  ?  Secondly :  Whether  his  Honor  was  right  in  refusing 
to  instruct  the  jury  that  the  defendant  must  sustain  his  plea  by  the 
same  cogency  of  proof  as  would  be  required  against  the  plaintiff, 
were  he  on  trial  for  his  life,  under  a  charge  of  murder ;  but  on  the 
contrary,  saying  to  them  that  a  preponderance  of  evidence,  as  in  a  civil 
case,  was  all  that  was  necessary. 

The  first  question  is  raised  by  the  plaintiff's  exceptions  to  the  ad- 
mission of  the  testimony,  and  we  think  the  exception  is  well  founded. 
The  reasons  by  which  his  Honor's  decision  was  influenced  are  not 
stated,  and  we  do  not  know  that  he  felt  himself  bound  by  the  case  of 
McFarland  v.  Shaw,  4  N.  C.  200;  or  whether  he  thought  the  issue  be- 
fore him  was  the  same  as  it  would  have  been  had  the  plaintiff  been 
on  trial  for  the  murder  of  Jacob  Britt,  and  that  therefore  this  was  an 
exception  to  the  general  rule,  that  dying  declarations  are  not  per  se  ad- 
missible in  civil  cases.  We  say  per  se,  because  where  dying  declara- 
tions constitute  part  of  the  res  gestae,  or  come  within  the  exception  of 
declarations  against  interest,  or  the  like,  they  are  admissible,  as  in 
other  cases,  irrespective  of  the  fact  that  the  declarant  was  under  the 
apprehension  of  death.  1  Greenlf.  Ev.  §  156.  Whether  the  decision 
was  influenced  by  the  one  reason  or  the  other,  or  by  both  combined, 
we  are  satisfied  that  it  is  not  supported  by  principle,  while  it  is  op- 
posed by  the  whole  current  of  the  recent  cases  in  England  and  in  this 
country. 

at  the  same  time  he  really  believes  that  in  a  few  short  hours  at  most  he  will 
be  called  upon  to  appear  before  Him  to  answer  for  the  deeds  done  in  the 
body. 

"But  outside  of  this,  the  fact  sought  to  be  shown  was  important  in  an- 
other point  of  view.  It  strikes  at  the  very  foundation  of  the  reasons  upon 
which  dying  declarations  are  admitted  at  all.  There  are  certain  guaranties 
of  the  triith  of  dying  declarations,  growing  out  of  the  solemnity  of  the  time 
and  circumstances  under  which  they  are  made,  which,  in  contemplation  of 
law,  are  supposed  to  compensate  for  the  fact  that  they  are  not  sanctioned  by 
an  oath,  and  the  party  against  whom  they  are  used  has  had  no  opportunity 
to  cross-examine.  But  when  it  is  affirmatively  shown  that  the  declarant  in 
making  the  statement  was  not  actuated  by  the  motives  and  influences  which 
the  law  contemplates,  or  where,  upon  the  whole  of  the  evidence,  there  is  a 
reasonable  doubt  of  this  fact,  the  statement  should  be  excluded ;  for  in  such 
case  it  would  be  without  those  guaranties  for  its  truth  which  the  law  con- 
templates " 

*7  For  the  statement  of  this  case,  see  ante,  p.  38. 
*8  Part  of  oDinion  omitted. 


472  HEARSAY  (Ch.  3 

The  case  of  :McFarland  v.  Shaw,  was  decided  by  the  Supreme  Court 
under  its  former  organization,  in  the  year  1815.     The  action  was  by 
a  father  for  the  seduction  of  his  daughter;    the  defendant  pleaded 
not  guilty,  and  on  the  trial,  the  plaintiff,  to  piove  the  seduction,  offered 
to  show  that  after  all  hope  of  Ufe  was  gone,  his  daughter,  who  was 
then  sick  in  child-bed,  desired  that  the  defendant  might  be  sent  for ; 
and  upon  being  informed  that  he  would  not  see  her,  exclaimed,  "I  am 
going ;  he  will  soon  go  too,  when  he  will  be  obliged  to  see  me,  and  will 
not  dare  to  deny  the  truth."    The  testimony  was  objected  to,  but  re- 
ceived by  the  Court;    and  the  case  came  before  the  Supreme  Court 
on  a  motion  for  a  new  trial :    The  Court,  after  stating  that  such  tes- 
timony was  admissible  in  certain  criminal  cases,  in  which  life  was  at 
stake,  contended  that,  though  they  had  no  precedent  to  guide  them, 
it  ought,  from  reason  and  analogy,  to  be  admitted  in  a  case  Uke  the 
one  before  them;    but  they  grounded  themselves  chiefly  on  the  cir- 
cumstance, "that  the  fact  disclosed  in  her  declaration  could  only  be 
proven  by   herself;    she  was  the  injured  party  through   whom  the 
cause  of  action  arose  to  the  father."     The  Court  tlien  say  further, 
"we  give  no  opinion  how  far  the  dying  declarations  of  an  indifferent 
person,  not  receiving  an  injury  and  not  a  party  to  the  transaction, 
would  be  evidence  in  a  civil  case.     Our  decision  is  confined  to  the 
state  of  facts  presented  in  this  case."     It  is  manifest  tliat  the  Court 
labored  under  the  impression,  which  then  generally  prevailed,   that 
dying  declarations  were  admissible  upon  the  general  principle  "that 
they  are  declarations  made  in  extremity,  when  the  party  is  at  the  point 
of  death,  and  when  ever}'  hope  of  this  world  is  gone:    when  every 
motive  to   falsehood  is  silenced,  and  the  mind  is  influenced  by  the 
most  powerful  considerations  to  speak  the  truth:    a  situation  so  sol- 
emn and  so  awful  is  considered  by  the  law  as  creating  an  obligation 
equal  to  that  which  is  imposed  by  a  positive  oath  in  a  court  of  justice." 
If  the  admission  stood  upon  this  general  principle  alone,  it  might  well 
have  been  contended,  as  it  was  contended,  that  dying  declarations  ought 
to  be  admitted  in  all  cases,  civil  as  well  as  criminal.    But  another  ele- 
ment in  the  test  of  trutli  was  overlooked  by  those  who  insisted  upon 
this  latitude  of  admission,  to  wit:  the  opportunity  of  confronting  and 
cross-examining  the  declarant.    The  privilege  of  cross-examination  has 
been  carefully  secured  to  the  party,  to  be  affected  by  them,  in  depo- 
sitions taken  before  magistrates,  and  the  testimony  of  deceased  wit- 
nesses on  a  former  trial.     The  importance  of  preserving  it,  has  no 
doubt  restricted  the  admission  of  dying  declarations  to  the  criminal 
cases  only  "where  the  death  of  the  deceased  is  the  subject  of  tlie 
charge,  and  the  circumstances  of  the  death  the  subject  of  the  declara- 
tions."    Such  declarations,  then,  are  admitted  "upon  the  ground  of 
the  public  necessity  of  preserving  the  lives  of  the  community  by  bring- 
ing man-slayers  to  justice.     For  it  often  happens  that  there  is  no  third 
person  present  to  be  an  eye  witness  to  the  fact,  and  the  usual  wit- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  473 

ness  ■*'*  in  other  cases  of  felony,  namely,  the  injured  party,  is  himself 
destroyed."  See  Cowen  and  Hill's  notes  to  Phil,  on  Ev.  pt.  1,  610; 
1  Greenlf.  on  Ev.  §  156,  and  the  cases  there  cited.  The  principle  of 
admission,  being  thus  restricted,  necessarily  overrules  the  case  of  Mc- 
Farland  v.  Shaw,  and  shows  that  even  if  the  issue  be,  as  in  this  case, 
whether  the  plaintiff  murdered  the  deceased,  the  dying  declarations 
cannot  be  heard,  because  such  issue  is  joined  in  a  civil  case.  »  ♦  * 
Venire  de  novo.''" 


REG.  V.  HIND. 
(Court  of  Criminal  Appeal,  1S60.    8  Cox,  Cr.  Cas.  300.) 

Case  reserved  by  Keating,  J.,  for  the  opinion  of  this  Court. 

John  Daubeney  Hind  was  tried  before  me,  at  the  last  assizes  for 
the  county  of  Gloucester,  and  convicted  upon  an  indictment  charging 
him  with  feloniously  and  unlawfully  using  certain  instruments  upon 
the  person  of  one  Mary  Woolford,  deceased,  with  intent  to  procure 
the  miscarriage  of  the  said  Mary  Woolford. 

On  the  trial,  a  dying  declaration  of  the  said  Mary  Woolford  was 
tendered  in  evidence  on  the  part  of  the  prosecution  and  objected  to 
on  the  part  of  the  prisoner,  upon  the  ground  that  the  death  of  Mary 
Woolford  was  not  the  subject  of  the  inquiry. 

I  received  the  evidence,  but  reserved  the  question  as  to  its  admissi- 
bility, and  respited  the  execution  of  the  sentence  until  the  Court  of 
Criminal  Appeal  should  pronounce  its  decision  upon  the  point.  See 
R.  V.  Baker,  2  M.  &  Rob.  53. 

If  the  Court  should  be  of  opinion  that  the  evidence  was  not  admis- 
sible, then  the  judgment  is  to  be  reversed,  inasmuch  as  without  the 
evidence  of  the  dying  declaration  of  Mary  Woolford  the  prisoner 
could  not  have  been  convicted. 

If  the  Court  should  think  the  evidence  admissible,  then  the  judgment 
is  to  stand. 

Pollock,  C.  B.  In  this  case  we  are  all  of  opinion  that  the  dying 
declaration  of  the  woman  was  improperly  received  in  evidence.  The 
rule  we  are  disposed  to  adhere  to,  is  to  be  found  laid  down  in  Rex 
V.  Mead,  2  Barn.  &  Cres.  608.  There  Abbott,  C.  J.,  said,  "The  gen- 
eral rule  is,  that  evidence  of  this  description  is  only  admissible  where 

4  0  But  the  use  of  dying  declarations  is  not  confined  to  cases  where  there 
are  no  other  witnesses,  but,  if  otherwise  competent,  they  are  admitted  in  cas- 
es where  the  otlier  evidence  is  ample.  Commonwealth  v.  Roddy,  184  Pa.  274, 
39  Atl.  211  (1898). 

60  Accord:  Stobart  v.  Dryden,  1  M.  &  W.  615  (1836);  Daily  v.  New  York 
&  N.  H.  Ry.  Co.,  32  Conn.  356,  87  Am.  Dec.  176  (1865) ;  Marshall  v.  Chicago  & 
G.  E.  Ry.  Co.,  48  111.  475,  95  Am.  Dec.  561  (1868) ;  Brownell  v.  Pacific  Rv. 
Co.,  47  Mo.  244  (1870) ;  Wilson  v.  Boerem.  15  Johns.  (N.  Y.)  286  (181S).  Con- 
tra: Thurston  v.  Fritz,  91  Kan.  468,  138  Pac.  625,  50  L.  R.  A.  (N.  S.)  1167, 
Ar.n.  Cas.  1915D,  212  (1914),  admitting  a  dying  declaration  as  to  a  business 
transaction. 


474  HEARSAY  (Ch.  3 

the  death  of  the  deceased  is  the  subject  of  the  charge,  and  the  circum- 
stances of  the  death  the  subject  of  the  dying  declaration."  Speaking 
for  myself,  I  must  say  that  the  reception  of  this  kind  of  evidence  is 
clearly  an  anomalous  exception  in  the  law  of  England,  which  I  think 
ought  not  to  be  extended. 
Conviction  quashed."^ 


BROWN  V.  COMMON\VEALTH. 

(Supreme  Court  of  Pennsylvania,  1S73.    73  Pa.  321,  13  Am.  Rep.  740.) 

At  April  Term,  1872,  of  the  court  below,  the  grand  jury  found  a 
true  bill  against  Joseph  Brown  for  the  murder  of  Daniel  S.  Kraemer. 

The  indictment  was  tried  August  27th,  1872. 

The  evidence  was  that  the  deceased  was  found  on  the  26th  of  Feb- 
ruary, 1872,  in  a  lane  about  three  hundred  yards  from  his  house,  and 
that  the  wife  shortly  before,  on  the  same  day,  was  found  on  her  bed 
in  the  house,  with  her  head  beaten  badly;  she  died  from  the  injuries 
on  the  4th  of  March.  The  husband  was  about  sixty  years  old,  and 
the  wife  about  fifty. 

The  Commonwealth  recalled  Sophia  Fehr,  and  proposed  to  examine 
her  as  to  dying  declarations  of  Mrs.  Kraemer  on  Monday  and  Tuesday, 
upon  the  subject  of  the  murder  of  her  husband. 

The  defendant  objected,  amongst  other  things,  that  the  dying  dec- 
larations of  Mrs.  Kraemer,  as  a  part  of  the  res  gestae,  or  surrounding 
circumstances,  proposed  to  be  offered,  on  Monday  following,  are  in- 
admissible, because  not  accompanying  the  transactions,  not  concomitant 
with  the  murder  of  Daniel  S.  Kraemer,  on  Sunday  evening,  preced- 
ing, but  are  mere  hearsay  evidence,  not  made  in  the  presence  of  the 
prisoner;  and  they  are  irrelevant  in  tliis  issue  as  to  the  murder  of 
Daniel  S.  Kraemer. 

The  Court  admitted  the  offer  and  sealed  a  bill  of  exceptions. 

The  Commonwealth  then  gave  in  evidence  the  declarations  of  Mrs. 
Kraemer  tending  to  connect  the  prisoner  with  the  murder.'*^ 

Read,  C.  J,  *  *  *  Under  this  head  is  ranged  the  reception  under 
objection  of  the  dying  declarations  of  Mrs.  Kraemer,  the  wife  of  the 
murdered  man.  "The  dying  declarations  of  a  person  who  expects  to 
die,  respecting  the  circumstances  under  which  he  received  a  mortal 
injury,  are  constantly  admitted  in  criminal  prosecutions,  where  the 
death  is  the  subject  of  criminal  inquiry,  though  the  prosecution  be  for 
manslaughter;  though  the  accused  was  not  present  when  they  were 
made,   and   had  no   opportunity   for  cross-examination,   and   against 

f'l  Accord:  Johnson  v.  State,  50  Ala.  4;jG  (1S74)  ;  Com.  v.  Ilomor.  103  Ma.ss. 
34r5,  2r,  N.  10.  872  (1891);  People  v.  Davis,  06  N.  Y.  95  (1874);  Hailing  v.  Com., 
110  Pa.  KX),  1  Atl.  314  (1880). 

12  Slatemtnt  condensed  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTION'S  475 

or  in  favor  of  the  party  charged  with  the  death."  "When  every  hope 
of  this  world  is  gone,  when  every  motive  to  falsehood  is  silenced,  and 
the  mind  is  induced  by  the  most  powerful  considerations  to  speak  the 
truth,  a  situation  so  solemn  and  awful  is  considered  by  the  law  as 
creating  the  most  impressive  of  sanctions."  1  Wharton's  Criminal 
Law,  §  669;  3  Russell,  by  Greaves,  250;  1  Greenleaf,  §§  156,  162, 
346;    1  Taylor  on  Evidence,  616. 

"The  constitutional  provision,"  says  Dr.  Wharton,  "that  the  ac- 
cused shall  be  confronted  by  the  witnesses  against  him  does  not  ab- 
rogate the  common  law  principle,  that  the  declarations  in  extremis 
of  the  murdered  person  in  such  cases  are  admissible  in  evidence."    Id. 

In  Woodsides  v.  State,  2  Hovi^.  (Miss.)  655,  the  court,  at  page  665, 
in  answer  to  the  constitutional  objection  that  the  prisoner  had  a  right 
to  be  confronted  with  the  witness  against  him,  say :  "But  it  is  upon  the 
ground  alone,  that  the  murdered  individual  is  not  a  witness,  that  his 
declarations  made  in  extremis  can  be  offered  in  evidence  upon  the  trial 
of  the  accused.  If  he  were  or  could  be  a  witness,  his  declaration  upon 
the  clearest  principle  would  be  inadmissible.  His  declarations  are 
regarded  as  facts  or  circumstances  connected  with  the  murder,  which, 
when  they  are  established  by  oral  testimony,  the  law  has  declared  to 
be  evidence.  It  is  the  individual  who  swears  to  the  statements  of  the 
deceased  that  is  the  witness,  not  the  deceased."  In  Anthony  v.  State 
of  Tennessee,  Meigs  (Tenn.)  277,  33  Am.  Dec.  143,  the  court  say,  upon 
the  first  ground  of  objection,  "We  are  all  of  opinion  tliat  the  Bill  of 
Rights  cannot  be  construed  to  prevent  declarations  properly  made  in 
articulo  mortis  from  being  given  in  evidence  against  defendants  in 
cases  of  homicide." 

The  same  doctrine  is  to  be  found  in  State  of  Iowa  v.  Nash,  7  Iowa, 
347,  and  in  Robbins  v.  State  of  Ohio,  8  Ohio  St.  131 ;  Com.  v.  Casey, 
11  Cush.  (Mass.)  417,  59  Am.  Dec.  150,  and  very  directly  in  Com.  v. 
Carey,  12  Cush.  (Mass.)  246.  There  are  also  various  statements  to 
the  same  effect  in  most  of  the  decisions  cited  above  in  relation  to  the 
admission  of  evidence  of  the  testimony  of  a  deceased  witness. 

All  these  cases  are  confined  to  the  dying  declarations  of  the  mur- 
dered person  upon  the  trial  of  the  individual  accused  of  the  murder. 
At  the  York  assizes  on  the  17th  July,  1837,  in  Rex  v.  Baker,  2  AIoo. 
&  Rob.  53,  it  was  held,  on  an  indictment  against  a  prisoner  for  the 
murder  of  A.  by  poison,  which  was  also  taken  by  B.,  who  died  in  con- 
sequence, that  B.'s  dying  declarations  were  admissible.  Coltman,  J., 
after  consulting  Parke,  B.,  expressed  himself  of  opinion  that  as  it  was 
all  one  transaction,  the  declarations  were  admissible,  and  accordingly 
allowed  them  to  go  to  the  jury,  but  he  said  he  would  reserve  the  point 
for  the  opinion  of  the  judges.  The  prisoner  was  acquitted.  This 
case  is  entitled  to  greater  weight,  as  Baron  Parke,  the  year  before,  in 
Stobart  v.  Dryden,  1  Mees.  &  Welsby,  615,  had  been  considering  the 
question   of   dying  declarations,   after   full  argument,   and  delivered 


476  HEARSAY  (Ch.  3 

the  opinion  of  the  court.    This  case  is  mentioned  in  1  PhilHps  and  Ar- 
nold, 243,  and  3  Russell,  268 ;   1  Taylor  on  Evidence,  618. 

In  State  v.  Terrell,  12  Rich.  (S.  C.)  321,  it  was  held  upon  the  trial 
of  an  indictment  for  the  murder  of  A.  by  poison,  which  was  taken 
at  the  same  time  by  B.  and  C,  both  of  whom  as  well  as  A.  died  from 
its  effects,  the  dying  declarations  of  B.  are  admissible  against  the  pris- 
oner, although  the  general  rule  seems  to  be,  that  dying  declarations 
are  admissible  only,  where  the  indictment  is  for  the  murder  of  the 
party  making  the  declarations.  The  murder  was  effected  by  putting 
strychnine  in  a  bottle  of  whiskey,  administered  by  the  defendant,  at 
the  same  time,  to  three  persons,  and  caused  the  deaths  of  the  grand- 
father and  uncle  of  the  prisoner,  and  of  a  third  person,  whose  dying 
declarations  were  received  in  evidence  upon  the  trial  of  the  accused 
for  the  murder  of  his  grandfather. 

Upon  the  authority  of  these  cases  the  learned  judge  admitted  the 
dying  declarations  of  the  wife,  upon  the  trial  of  the  defendant  for  the 
murder  of  her  husband.  In  this  there  was  error,  for  the  husband 
was  found  dead  on  Monday  morning  26th  Feb.,  1872,  three  hundred 
yards  from  his  dwelling,  and  his  wife  was  discovered  on  the  same 
morning  lying  across  her  bed  in  the  house  in  an  insensible  condition 
and  with  her  face  and  head  terribly  beaten  and  disfigured.  Kraemer 
and  his  wife  were  both  advanced  in  years  and  there  was  no  doubt  tliat 
robbery  of  gold  and  silver  which  was  known  to  be  in  the  house  led 
to  their  murder,  but  we  do  not  see  any  facts  that  would  bring  these 
dying  declarations  of  Mrs.  Kraemer  within  those  two  authorities,  sup- 
posing them  to  be  good  law. 

If  the  prisoner  had  been  tried  upon  the  indictment  for  the  murder 
of  Mrs.  Kraemer,  her  dying  declarations  would  have  been  strictly 
legal  evidence  against  him.     *     *     * 

Judgment  reversed. 


STATE  v.  DRAPER. 
(Supreme  Court  of 'iMissouri,  1877.     65  Mo.  335,  27  Am.  Rep.  287.) 

Norton,  J."  The  defendant  was  indicted  for  murder  in  the  first 
degree  in  the  circuit  of  Jasper  county,  at  the  September  term,  1876, 
for  the  killing  of  one  J.  L.  Gilbert.  On  defendant's  application  the 
venue  of  the  cause  was  changed  to  the  circuit  court  of  Greene  coun- 
ty. In  this  latter  court  defendant  was  put  upon  his  trial,  at  its  May 
term,  1877,  which  resulted  in  his  conviction  for  murder  in  the  first  de- 
gree. Unsuccessful  motions  for  a  new  trial  and  in  arrest  of  judgment 
having  been  made,  the  cause  is  brought  here  for  review  on  ap- 
peal.    *     *     ♦ 

»«  Part  of  oi»lnlon  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  477 

In  the  progress  of  the  trial  witness  Carter  was  permitted  to  testify 
as  to  the  dying  declaration  of  Gilbert,  against  defendant's  objections. 
His  evidence  was  as  follows :  "Gilbert  told  him  he  could  not  live  till 
morning,  that  he  could  not  live  through  the  night.  Gilbert's  voice  was 
very  weak.  He  told  me  his  trouble  with  Draper  originated  about  a 
trunk ;  that  Draper  and  his  wife  had  boarded  with  him ;  that  some  two 
or  three  weeks  before,  they  went  away,  owing  him  for  board,  and  he 
left  the  trunk ;  that  he  and  Draper  had  trouble  about  it  then,  that  they 
quarreled,  and  Draper  abused  him ;  that  Draper  had  been  to  him  af- 
terwards for  the  trunk  and  threatened  him ;  that  he  refused  to  let  him 
have  it  till  he  paid  him,  and  that  he  had  kept  the  trunk ;  that  Draper 
came  to  his  house  on  Saturday  evening  before  that  evening,  and  call- 
ed him  out  doors  and  outside  the  gate  and  told  him  that  by  G d,  the 

d d  son  of  a  bitch,  if  he  did  not  give  up  the  trunk  he  would  cut 

his  G d  d d  heart  out,  and  skin  him,  and  hang  his  skin  upon  the 

fence  to  dry ;  that  Draper  knocked  him  down,  and  inflicted  the  wounds 
of  which  he,  Gilbert,  believed  he  was  dying." 

It  is  urged  as  ^  objection  to  the  evidence  that  no  proper  foundation 
had  been  laid  for  its  introduction,  and  that  all  that  portion  of  the  state- 
ment made  by  Gilbert,  relating, to  what  occurred  two  or  three  weeks 
anterior  to  the  difficulty  in  which  he  was  stabbed,  and  all  that  he  said 
in  regard  to  a  quarrel  about  a  trunk,  and  the  threats  of  Draper  pre- 
viously made,  was  incompetent,  even  though  the  State  had  laid  a  prop- 
er foundation  for  the  introduction  of  the  dying  declarations  of  the 
deceased.     *     *     * 

It  seems  to  be  well  established  law  that  dying  declarations  are  ad- 
missible as  to  those  facts  and  circumstances  constituting  the  res  gestae 
of  the  homicide,  but  as  to  all  other  matters  occurring  anterior  to  the 
killing,. and  not  immediately  connected  with  it,  they  are  inadmissible. 
In  1  Green.  Ev.  §  156,  it  is  said,  "it  is  now  well  settled  that  dying  dec- 
larations are  admissible  as  such,  only  in  cases  of  homicide,  when  the 
death  of  the  deceased  is  the  subject  of  the  charge,  and  the  circum- 
stances of  the  death  are  the  subject  of  the  dying  declaration."  We 
have  not  been  able  to  find  any  case  where  such  evidence  has  been  given 
a  wider  scope  than  is  laid  down  in  the  above  rule.  In  the  case  of  Lei- 
ber  V.  Commonwealth,  9  Bush  (Ky.)  11,  it  was  held  that  dying  declara- 
tions should  be  restricted  to  the  act  of  kilHng,  and  the  circumstances 
immediately  attending  it,  and  forming  a  part  of  the  res  gestae.  In 
that  case  the  declarations  given  in  evidence,  not  only  conduced  to  iden- 
tify the  defendant  as  the  perpetrator  of  the  homicide,  and  the  circum- 
stances immediately  attending  it,  but  it  also  purported  to  disclose  for- 
mer and  distinct  transactions,  from  which  the  jury  might  have  infer- 
red malice  on  the  part  of  the  defendant.  Hardin,  Justice,  in  deliver- 
ing the  opinion,  says :  "the  court  erred  in  admitting  a  part  of  the  dying 
statements,  however  competent  the  evidence  may  have  been,  and  for 
that  cause,  if  for  no  other,  the  judgment  should  be  reversed."  In  the 
case  of  Mose  (a  slave)  v.  State,  35  Ala.  421,  the  defendant  was  charg- 


478  HEARSAY  (Ch.  3 

ed  with  killing  one  Martin  Oaks,  an  overseer.  On  the  trial,  the  dying 
declarations  of  .the  deceased  were  admitted  giving  the  circumstances 
attending  to  the  homicide,  in  giving  which,  deceased  stated  ''that  Moses, 
tlie  defendant,  was  the  only  slave  on  the  plantation  at  enmity  with 
him,"  and  that  "Moses  was  a  runaway."  In  the  opinion  of  the  court 
it  is  said  that  the  declarations  by  deceased,  that  Moses  was  the  only 
slave  on  the  place  at  enmity  with  him,  and  that  Moses  was  a  run- 
away, do  not  fall  within  the  principle  admitting  dying  declarations, 
and  the  court  in  admitting  them  erred.  The  enmity  of  the  defend- 
ant towards  deceased,  of  which  previous  threats  and  previous  attempts 
to  commit  the  same  act  would  have  been,  evidence  in  the  case,  pointing 
to  the  accused  as  the  guilty  party,  was  a  fact  extrinsic  to  the  circum- 
stances attending  the  .homicide.  The  judgment  was  reversed  for  that 
error;  so  also  in  the  following  cases:  Johnson  v.  State,  17  Ala.  618; 
Ben  V.  State,  Z7  Ala.  103. 

In  the  case  of  State  v.  Shelton,  47  N.  C.  360,  64  Am.  Dec.  587,  the 
deceased,  in  making  his  dying  declarations,  stated  that  two  or  three 
hours  before  the  encounter  in  which  he  received  the  blow,  which  caus- 
ed his  death,  he  had  had  a  difficulty  and  quarrel  with  the  defendant. 
This  latter  declaration  was  admitted,  and  for  the  error  in  admitting  it, 
the  judgment  was  reversed  and  a  new  trial  awarded,  the  court  holding 
that  dying  declarations  must  be  restricted  to  the  act  of  killing,  and  the 
circumstances  immediately  attending  the  act  and  forming  a  part  of  the 
res  gestae.  In  the  case  of  Nelson  v.  State,  7  Humph.  (Tenn.)  542,  the 
defendant  was  indicted  and  convicted  for  the  murder  of  one  Sellers. 
On  the  trial  the  following  dying  declarations  of  deceased  were  ad- 
mitted: "That  Nelson,  the  prisoner,  had  stabbed  him;  that  Nelson 
had  tried  to  kill  him  two  or  three  times  before."  It  was  held  that  dying 
declarations  were  admissible  from  the  necessity  of  the  case  to  identify 
the  prisoner  and  establish  the  circumstances  of  the  res  gestae  or  direct 
transaction  from  which  death  results.  When  they  relate  to  fonner  and 
distinct  transactions,  they  do  not  come  within  the  principle  of  neces- 
sity. In  the  case  of  Hackett  v.  People,  54  Barb.  (N.  Y.)  370,  the  dying 
declarations  of  deceased  were  admitted.  They  contained  not  only  an 
account  of  the  transaction  which  terminated  in  the  death  of  the  deceas- 
ed, but  also  other  facts,  and  among  them  the  statement  "that  Hackett, 
the  defendant,  had  often  threatened  to  kill  him,"  The  prisoner's  coun- 
sel objected  to  reading  the  whole  statement,  admitting  that  a  portion 
might  be  read.  This  objection  was  overruled.  Ingrabam,  Justice,  de- 
livering the  opinion  of  the  court,  in  speaking  of  that  portion  of  the 
declaration  in  which  deceased  stated  "that  Hackett  had  often  threaten- 
ed to  kill  him,"  observed  that  "this  statement  was  clearly  open  to  the 
objection  that  it  did  not  relate  to  the  transaction  from  which  the  death 
resulted,"  and  adds  that  its  effect  on  the  jury  may  have  been  vei-y  in- 
jurious. "The  prisoner  was  on  trial  for  his  life,  and  the  whole  ques- 
tion, whether  he  could  be  convicted  of  murder  in  the  first  degree,  was 
to  be  decided  by  proof  of  prior  ill-will,  or  prior  cause  for  a  premedi- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  479 

tated  act.  It  seems  to  me  to  be  a  dangerous  precedent  to  extend  the 
rule  Avhich  admits  dying  declarations,  made  under  conviction  that  the 
party  must  die,  beyond  the  immediate  transactions  which  led  to  his 
death.  The  evidence  referred  to  should  not  have  been  received  and 
the  judgment  should  be  reversed."  The  limits  prescribed  to  the  ad- 
missibility of  dying  declarations  in  tlie  rule  as  laid  down  by  Greenlcaf , 
supra,  and  as  illustrated  in  the  adjudicated  cases  above  alluded  to,  in 
which  the  rule  has  been  practically  applied,  necessarily  lead  to  a  rever- 
sal of  the  judgment  in  this  case,  on  the  ground  that  only  so  much  of 
Gilbert's  dying  declarations  as  related  to  the  killing  and  the  facts  and 
circumstances  attending  it,  and  constituting  a  part  of  the  res  gestae, 
should  have  been  allowed  to  go  to  the  jury.  The  cause  in  other  respects 
seems  to  have  been  well  tried.  Judgment  reversed  and  cause  remand- 
ed, in  which  the  other  judges  concur. 
Reversed.^* 


JONES  v.  STATE. 

(Supreme  Court  of  Mississippi,  1901.     79  Miss.  309,  30  South.  759.) 

Jones,  the  appellant,  was  indicted,  tried,  and  convicted  of  the  mur- 
der of  one  Ella  Bradley,  by  shooting  her,  and  was  sentenced  to  be 
hanged.  From  the  judgment  and  sentence  he  appealed  to  the  Supreme 
Court. 

The  principal  error  assigned  was  that  the  court  erred  in  admitting 
the  dying  declaration  of  Ella  Bradley.  The  facts  as  to  the  shooting 
are  as  follows:  Deceased  was  in  a  room  with  several  other  persons, 
sitting  near  tlie  fireplace,  with  her  side  or  back  to  a  window.  It  was 
night,  and  the  room  was  lighted,  but  it  was  dark  outside.  The  window 
shade  was  down,  being  slightly  raised  at  one  corner,  so  as  to  expose 
the  lower  part  of  the  window  pane  of  glass  in  the  bottom  row  of  the 
lower  sash.  Some  one  on  the  outside  of  the  house  shot  deceased 
through  this  window,  the  bullet  striking  her  in  the  back  part  of  the 
right  side.  She  died  in  a  short  while  after  she  was  shot.  I.  L.  Gordin, 
a  witness  for  the  state,  testified  that  he  was  at  the  house  of  Ella  Brad- 
ley a  short  time  before  her  death,  and  after  she  knew  she  was  going 
to  die  he  asked  her  who  she  thought  shot  her,  and  she  said  it  was  Wash 
Jones ;  that  Wash  had  told  her  that  he  was  coming  to  her  house  that 
night,  and  if  he  saw  any  other  negro  man  talking  to  her  he  would 
kill  her,  and  no  one  would  know  it.  This  testimony  was  objected  to 
by  defendant,  the  objection  was  overruled,  and  defendant  excepted. 

Whitfield,  C.  J.^^  It  was  fatal  error  to  admit  in  evidence  the 
testimony  of  Gordin  as  to  the  dying  declaration  of  Ella  Bradley,    It  is 

54  Accord:  State  v.  McKnight,  119  Iowa,  79.  93  N.  W.  63  (1903);  State  v. 
O'Shea.  GO  Kan.  772,  57  Pac.  970  (1S99) ;  People  v.  Smith,  172  N.  Y.  210,  G4 
N.  E.  814   (1902). 

0  5  Part  of  opinion  omitted. 


4S0  HEARSAY  (Ch.  3 

manifest  that  she  did  not  see,  and  could  not  possibly  have  seen,  who 
shot  her,  and  that  she  said  appellant  shot  her  simply  because  he  had 
threatened  to  shoot  her.  She  was  therefore  clearly  not  testifying  as 
a  fact  that  Jones  shot  her,  but  was  merely  stating  her  opinion  that  he 
must  have  shot  her,  since  he  had  told  her  he  was  going  to  do  so. 
This  was  not  competent.  All  the  evidence  in  the  case  as  to  the  situa- 
tion of  the  parties  in  the  room  and  as  to  the  manner  of  the  killing 
makes  it  too  clear  for  disputation  that  she  could  not  have  seen  the 
person  who  shot  her.  The  killing  was  an  atrocious  assassination,  and 
the  chief  point  of  inquiry  was,  who  did  the  killing?  There  is  no 
question  as  to  the  crime  being  murder.  The  only  question  was  whether 
Wash  Jones  was  the  party  who  committed  the  murder.  Identity  being 
the  sole  issue  involved,  the  tremendous  importance  of  the  dying  decla- 
ration testified  to  by  Gordin  becomes  at  once  manifest.  This  evi- 
dence is  too  vital  to  say  that  the  error  is  not  reversible.  The  attorney 
general,  with  that  admirable  candor  and  fairness  which  has  ever  char- 
acterized his  arguments  to  this  court,  recognizing  it  to  be  his  duty  as 
well  to  see  that  the  innocent  go  free  as  that  the  guilty  are  punished, 
concedes  that  the  admission  of  this  testimony  was  error,  endeavoring 
to  show  the  error  not  to  be  a  reversible  one.  But  we  think  it  is.  Nor 
is  the  error  cured  by  instructions  10  and  12.  The  twelfth  instruction 
told  the  jury  that,  if  they  believed  that  the  alleged  dying  declaration 
was  the  statement  of  an  opinion,  they  should  wholly  disregard  it. 
But  it  was  for  the  court,  not  the  jury,  to  say  whether  it  was  the  state- 
ment of  an  opinion.  Whether  it  was  the  statement  of  an  opinion  or 
of  fact  was  a  question  as  to  its  admissibility, — a  question  for  the  court 
alone,  the  determination  of  which  could  not  be  left  to  the  jury.  Lips- 
comb V.  State,  75  Miss.,  at  pages  600-602,  23  South.,  at  pages  221,  222; 
McDaniel's  Case,  8  Smedes  &  M.  401,  47  Am.  Dec.  93;  Chism's  Case, 
70  Miss.  754,  12  South.  855.  *  *  ♦ 
Reversed. 


CARVER  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1S97.     164  U.  S.  G94,  17  Sup.  Ct.  228, 

41  L.  Ed.  602.) 

This  was  a  writ  of  error  to  review  the  conviction  of  the  plaintiff  in 
error  for  the  murder  of  one  Anna  Maledon  at  Muskogee,  in  the  Creek 
Nation  of  the  Indian  Territory.  The  conviction  was  a  second  one  for 
the  same  offense,  the  first  having  been  set  aside  by  this  court  upon 
the  ground  that  improper  evidence  had  been  received  of  an  alleged 
dying  declaration.     160  U.  S.  553,  16  Sup.  Ct.  388,  40  L.  Ed.  532.^'* 

Mr.  Justice  Bkown,  *  *  *  There  was  also  error  in  refusing  to 
permit  the  defendant  to  prove  by  certain  witnesses  that  the  deceased, 

»«  Statcrnont  condensed  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  481 

Anna  Maledon,  made  statements  to  them  in  apparent  contradiction 
to  her  dying  declaration,  and  tending  to  show  that  defendant  did  not 
shoot  her  intentionally.  Whether  these  statements  were  admissible 
as  dying  declarations  °^  or  not  is  immaterial,  since  we  think  they  were 
admissible  as  tending  to  impeach  the  declaration  of  the  deceased, 
which  had  already  been  admitted.  A  dying  declaration  by  no  means 
imports  absolute  verity.  The  history  of  criminal  trials  is  replete  with 
instances  where  witnesses,  even  in  the  agonies  of  death,  have,  through 
malice,  misapprehension,  or  weakness  of  mind,  made  declarations  that 
were  inconsistent  with  the  actual  facts ;  and  it  would  be  a  great  hard- 
ship to  the  defendant,  who  is  deprived  of  the  benefit  of  a  cross-ex- 
amination, to  hold  that  he  could  not  explain  them.  Dying  declarations 
are  a  marked  exception  to  the  general  rule  that  hearsay  testimony  is 
not  admissible,  and  are  received  from  the  necessities  of  the  case,  and 
to  prevent  an  entire  failure  of  justice,  as  it  frequently  happens  that  no 
other  witnesses  to  the  homicide  are  present.  They  may,  however,  be 
inadmissible  by  reason  of  the  extreme  youth  of  the  declarant  (Rex 
V.  Pike,  3  Car.  &  P.  598),  or  by  reason  of  any  other  fact  which  would 
make  him  incompetent  as  an  ordinary  witness.  They  are  only  re- 
ceived when  the  court  is  satisfied  that  the  witness  was  fully  aware  of 
the  fact  that  his  recovery  was  impossible,  and  in  this  particular  the 
requirement  of  the  law  is  very  stringent.  They  may  be  contradicted 
in  the  same  manner  as  other  testimony,  and  may  be  discredited  by 
proof  that  the  character  of  the  deceased  was  bad,  or  that  he  did  not 
believe  in  a  future  state  of  rewards  or  punishment.  State  v.  Elliott,.  45 
Iowa,  486;  Com.  v.  Cooper,  5  AUen,  495,  81  Am.  Dec.  762;  Goodall 
V.  State,  1  Or.  333,  80  Am.  Dec.  396;  Tracy  v.  People,  97  111.  101; 
Hill  V.  State,  64  Miss.  431,  1  South.  494. 

It  is  true  that,  in  respect  to  other  witnesses,  a  foundation  must  be 
laid  for  evidence  of  contradictory  statements  by  asking  the  witness 
whether  he  has  made  such  statements;  and  we  have  held  that,  where 
the  testimony  of  a  deceased  witness  given  upon  a  former  trial  was  put 
in  evidence,  proof  of  the  death  of  such  witness  subsequent  to  his  for- 
mer examination  will  not  dispense  with  this  necessity.  Mattox  v.  U. 
S.,  156  U.  S.  237,  15  Sup.  Ct.  337,  39  L.  Ed.  409.  That  case,  however, 
was  put  upon  the  ground  that  the  witness  had  once  been  examined 
and  cross-examined  upon  a  former  trial.  We  are  not  inclined  to  ex- 
tend it  to  the  case  of  a  dying  declaration,  where  the  defendant  has  no 
opportunity  by  cross-examination  to  show  that  by  reason  of  mental  or 
physical  weakness,  or  actual  hostility  felt  towards  him,  the  deceased 
may  have  been  mistaken.    Considering  the  friendly  relations  which  had 

5  7  That  djing  declarations  are  admissible  on  behalf  of  the  defendant,  see 
Green  v.  State,  89  Miss.  331,  42  South.  797  (1907) ;  People  v.  Southern,  120 
Cal.  645,  53  Pac.  214  (189S) ;  Mattox  v.  United  States,  146  U.  S.  140,  13  Sup. 
Ct.  50,  36  L.  Ed.  917  (1892)  semble ;  Tittle  v.  State,  52  L.  B.  A.  (N.  S.)  910 
(1914),  annotated. 

HiNT.Ev.— 31 


482  HEARSAY  (Ch.  3 

existed  between  the  defendant  and  the  deceased  for  a  number  of  years, 
their  apparent  attachment  for  each  other,  and  the  alcohoHc  frenzy 
under  which  defendant  was  apparently  laboring  at  the  time,  the  shoot- 
ing may  possibly  not  have  been  with  deliberate  intent  to  take  the  life 
of  the  deceased,  notwithstanding  the  threats  made  by  the  defendant 
earlier  in  the  evening.  In  nearly  all  the  cases  in  which  the  question 
has  arisen,  evidence  of  other  statements  by  the  deceased  inconsistent 
with  his  dying  declarations  has  been  received.  People  v.  Lawrence,  21 
Cal.  368  (an  opinion  by  Chief  Justice  Field,  now  of  this  court) ;  State 
V.  Blackburn,  80  N.  C.  474;  McPherson  v.  State,  9  Yerg.  (Tenn.)  279; 
Hurd  V.  People,  25  Mich.  405 ;  Battle  v.  State,  74  Ga.  101 ;  Felder  v. 
State,  23  Tex.  App.  447,  5  S.  W.  145,  59  Am.  Rep.  777  \  Moore  v. 
State,  12  Ala.  764,  46  Am.  Dec.  276. 

Our  attention  has  been  called  to  but  one  case  to  the  contrary,  viz. 
Wroe  V.  State,  20  Ohio  St.  460,  cited  with  apparent  approval  in  Mat- 
tox  Case.  But  we  think,  as  applied  to  dying  declarations,  it  is  contra- 
ry to  the  weight  of  authority. 

As  these  declarations  are  necessarily  ex  parte,  we  think  the  defend- 
ant is  entitled  to  the  benefit  of  any  advantage  he  may  have  lost  by 
the  want  of  an  opportunity  for  cross-examination.  Rex  v.  Ashton,  2 
Lewin,  Crown  Cas.  147. 

The  disposition  we  have  made  of  these  assignments  renders  it  un- 
necessary to  consider  the  others.  The  judgment  of  the  court  must  be 
reversed,  the  conviction  set  aside,  and  a  new  trial  ordered. 

I\Ir.  Justice  Brewer  and  Air.  Justice  Peckham  concurred  in  revers- 
ing upon  the  sixth  assignment  only.^*  • 


III.  Admissions  "*• 

{A)  In  General 

DILLON  v.  CRAWLY, 

(Court  of  King's  Bencb,  1702.     Holt.  299.) 

Error  of  a  judgment  upon  a  demurrer  to  evidence  in  C.  B.  the  wit- 
ness to  the  scaling  and  delivery  of  a  deed,  being  subpoenaed,  did  not 
appear;  but  to  prove  it  the  party's  deed,  they  proved  an  indorsement 
made  by  him  thereupon  three  years  after;  reciting  a  proviso  within, 
that  if  he  paid  such  a  sum  the  deed  should  be  void,  and  acknowledging 

6  8  Lark  of  roliijlous  bollef  may  also  be  showu  to  discredit  a  dying  declara- 
tion.   Hill  V.  State,  G4  Miss.  431,  1  South.  494  (1877). 

60  Greenleaf  on  Evidence,  §  1C9:  "Under  the  head  of  exception  to  the  rule 
rojcctin;^  li<"ar.say  evidenct?,  it  has  licon  usual  to  treat  of  admissions  and  coii- 
fessifins  by  the  party,  considering  Miom  as  declarations  against  his  interest, 
and  therefore  probably  true.  Hut  in  regard  to  many  admissions,  and  espe- 
cially those  implied  from  conduct  and  assumed  character,  it  cannot  he  sup- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  483 

that  the  said  sum  was  not  paid  ;  and  a  fine  was  levied  of  the  very  lands 
mentioned  in  the  deed  to  Crawly,  and  by  the  indorsement  he  expressly 
own'd  it  to  be  his  deed ;   and  upon  this  the  deed  was  read.    And  now 

posed  that  the  partj%  at  the  time  of  the  principal  declaration  or  act  done,  be- 
lieved himself  to  be  speaking  or  acting  against  his  own  interest;  but  often 
the  contrary.  Such  evidence  seems,  therefore,  more  properly  admissible  as 
a  substitute  for  the  ordinary  and  legal  proof,  either  in  virtue  of  the  direct 
consent  and  waiver  of  the  party,  as  in  the  case  of  explicit  and  solemn  admis- 
sions ;  or  on  grounds  of  public  policy  and  convenience,  as  in  the  case  of  those 
implied  from  assumed  character,  acquiescence,  or  conduct." 

Wigmore  on  Evidence,  §  1049:  "The  use  of  the  admissions  is  on  principle 
not  obnoxious  to  the  Hearsay  rule;  because  that  rule  affects  such  statements 
only  as  are  offered  for  their  independent  assertive  value  after  the  manner  of 
ordinary  testimony,  while  admissions  are  receivable  primarily  because  ofj 
their  inconsistency  with  the  party's  present  claim  and  irrespective  of  their! 
credit  as  assertions;  the  offeror  of  the  admissions,  in  other  words,  does  not 
necessarily  predicate  their  truth,  but  uses  them  merely  to  overthrow  a  con- 
trary proposition  now  asserted.  Just  as  the  Hearsay  rule  is  not  applicable 
to  the  use  of  a  witness'  prior  self-contradictions,  so  it  is  not  applicable  to 
the  use  of  an  opponent's  admissions.  Nevertheless,  because  most  statements 
used  as  admissions  do  happen  to  state  facts  against  interest,  judges  have  been 
found  who,  misled  by  this  casual  feature,  have  treated  admissions  in  general 
as  obnoxious  to  the  Hearsay  rule,  and  therefore  as  entering  under  an  excep- 
tion to  that  rule.  That  this  is  a  mere  local  error  of  exposition  and  in  no 
sense  represents  a  rule  anywhere  obtaining  may  be  seen  from  two  circum- 
stances: First,  that  the  limitation  of  the  Hearsay  exception  to  facts  against 
pecuniary  or  proprietary  interest  has  never  been  attempted  to  be  applied  to 
admissions;  secondly,  that  the  further  requirement  of  the  Hearsay  excep- 
tion, namely,  that  the  declarant  must  first  be  accounted  for  as  deceased,  ab- 
sent from  the  jurisdiction,  or  othenvise  unavailable,  has  never  been  enforced 
for  the  use  of  a  party's  admissions." 

Eedfield,  J.,  in  Stevens  v.  Whitcomb,  16  Vt.  121  (1844) :  "  •  •  *  If  the 
witness  be  the  real  party  to  the  suit,  he  cannot  be  compelled  to  testify,  and 
by  consequence  his  declarations  and  admissions  against  his  interest  become 
evidence  against  the  party  standing  in  his  right."  See  same  suggestion  in 
The  King  v.  Inhabitants  of  Hardwick,  11  East,  578  (1809)  post,  p.  504. 

"An  English  Evidence  Code,"  20  Solicitor's  Journal,  8M  (1876):  "'An  ad- 
mission is  a  statement,  oral  or  written,  suggesting  any  inference  as  to  any 
fact  in  issue  or  relevant  fact  unfavorable  to  the  conclusion  contended  for  by 
the  person  by  whom  or  on  whose  behalf  the  statement  is  made;'  to  which  is 
added,  'Every  admission  is  (subject  to  the  rules  hereinafter  stated)  a  relevant 
fact  as  against  the  person  to  whom  it  is  unfavorable.'  In  this  definition  Mr. 
Stephen  appears  anxious  to  recognize  the  two  elements  implied  in  the  com- 
mon as  well  as  in  the  technical  use  of  the  word.  These  are,  first,  that  an  ad- 
mission is  a  statement  made  by  the  person  against  whom  it  Is  offered  in  evi- 
dence, or  by  some  one  for  whose  statements  lie  is,  by  virtue  of  some  relation- 
ship between  them,  answerable;  and,  second,  that  it  is  a  statement  of  some- 
thing injurious  to  the  case  of  that  i>erson.  The  definition  recognizes  these 
two  elements,  but  it  fails  to  represent  correctly  the  relation  between  them. 
For  all  evidence  which  is  offered  by  the  one  party  against  the  other  is,  or 
is  at  least  intended  and  supposed  to  be,  unfavorable  to  the  party  against 
whom  it  is  offered.  But  what  is  really  characteristic  of  an  admission  is  that, 
without  calling  him,  the  one  party  makes  the  other,  or  some  one  for  whose 
statements  he  is  answerable,  or  whose  interest  is  identical  with  his  own, 
a  witness  for  him.  The  rules  of  evidence  are  for  the  protection  of  each  party 
against  the  reception  of  improper  evidence  against  him.  If  his  adversary 
chose  to  make  him  a  witness  in  his  own  favour  there  would  be  no  reason  on 
his  part  for  objecting;  but  naturally  his  adversary  does  not  do  so.  He  will, 
however,  as  naturally  object,  if  possible,  to  be  made  a  witness  against  him- 
self without  being  called ;  and  what  enables  his  adversary  to  do  so  in  spite 
of  his  objection  is  that  he  has  himself  furnished  the  weapon  with  which  he  la 
attacked.     '^Tiat  is  characteristic,  therefore,  of  an  admission  is  not  that  rl*. 


484  HEARSAY  (Ch.  3 

it  was  objected  that  this  was  not  good  evidence,  because  not  the  best 
the  nature  of  the  thing  could  bear;  but  only  circumstantial;  which 
never  ought  to  be  admitted,  where  better  may  be  had  ex  natura  rei; 
because  circumstances  are  fallible  and  doubtful ;  and  it  is  upon  this 
reason  that  a  copy  of  a  record  is  good,  because  one  cannot  have  the 
record  itself ;  but  a  copy  of  a  copy  will  not  do.  Upon  non  est  factum 
to  a  bond,  one  of  the  witnesses  being  subpoenaed  did  not  appear;  and 
it  was  offered  to  prove  that  he  owned  it  his  bond ;  but  denied. 

Holt,  C.  J.    Can  there  be  better  ®°  evidence  of  a  deed  than  to  own  it, 
and  recite  it  under  his  hand  and  seal?    Et  per  totam  Cur'  Jud'  affirm'.®^ 


HARINGTON  et  al.  v.  MACMORRIS. 
(Court  of  Common  Pleas,  1813.     5  Taunt.  228.) 

This  was  an  action  for  money  paid,  money  had  and  received,  money 
lent,  and  upon  an  account  stated :  the  defendant  gave  notice  of  set-off, 
paid  £67.  12s.  into  court,  and,  under  a  judge's  order,  delivered  a  par- 
ticular of  set-off  in  the  following  terms :  "Paid  R.  Dashwood,  Esq., 
under  a  foreign  attachment  against  the  present  defendant,  founded 
on  a  plaint  or  suit  in  the  mayor's  court  of  London,  brought  by  the  said 
R.  Dashwood  against  the  plaintiffs  in  this  cause,  being  the  amount,  or 
part  of  the  amount,  of  a  debt  at  that  time  owing  by  the  present  defend- 
ant to  the  present  plaintiffs  in  this  cause,  ill2.  10s.  To  costs  paid  by 
the  above  defendant  on  such  foreign  attachment  £3.  14s.  4d."  Upon 
the  trial  of  this  cause  at  Guildhall,  at  the  sittings  after  Trinity  term, 
1813,  before  Mansfield,  C.  J.,  it  appeared  that  the  action  was  brought 
to  recover  a  sum  of  money  which  had  been  lent  in  India,  in  pagodas. 
Lens,  Serjt.,  objected  that  the  averment  that  the  defendant  was  in- 
debted for  "lawful  money  of  Great  Britain"  lent  to  him  was  not  sup- 
ported by  this  evidence.  The  plaintiffs  gave  no  other  evidence  of  the 
debt  than  the  defendant's  own  particular  of  set-off,  which,  they  con- 
tended admitted  a  debt  of  ill2.  10s.  to  be  due  from  himself  to  the 
plaintiffs  over  and  above  the  £67.  10s.  which  the  defendant  had  paid 
into  court.    The  plaintiffs  had  delivered  a  particular  of  their  demand, 

ment  which  it  has  In  common  with  all  the  evidence  tendered  by  his  adversary, 
but  that  which  Is  peculiar  to  it,  namely,  that  it  is  furnished  by  himself.  The 
latter  element  should,  therefore,  occupy  the  first  place;  the  former  should 
occupy  the  second  place,  or  rather,  Indeed,  does  not  retiuire  to  be  noticed  at 
all.  We  should  therefore  suf,'gost  that  an  admission  would  ho  more  appro- 
priately defined  (if,  Indeed,  any  dofiultlon  is  needed)  as  'a  statement,  oral  or 
written,  as  to  a  fact  in  issue  or  relevant  fact  made  by  a  party  to  an  action. 
or  by  a  person    deemed  to  be  entitled  to  make  .such  statement  on  his  behalf.'  " 

«o  In  an  anonymous  case,  7  Modern.  49  (1703),  the  samo  jud;j;e  observed; 
"Confession  is  the  wor.st  sort  of  evidence,  that  is,  if  there  be  no  proof  of  a 
transaction  or  dealing,  or,  at  least,  a  probability  of  dealing  between  tliem ; 
as  here  there  was.  the  one  being  a  sailor,  and  the  other  a  captain  of  a  ship." 

«i  Compare  Call  v.  Dunning,  4  East,  53  (1803),  ante,  p.  219. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  485 

by  which  they  claimed  only  £161.  15s.  in  the  whole,  of  which  £67.  10s. 
being  paid  into  court,  only  £94.  5s.  by  their  own  account,  remained 
due  to  them.  The  defendant  failing,  in  the  opinion  of  the  jury,  to 
substantiate  the  validity  of  the  foreign  attachment  under  which  he 
had  paid  the  money  to  Dashwood,  there  being  an  insinuation  that  it 
was  collusive,  and  he  having  neither  proved  that  the  debt  originated 
within  the  jurisdiction  of  the  marshall's  court,  nor  that  the  parties 
resided  within  it,  nor  that  the  defendant  in  that  cause  had  been  actual- 
ly summoned  before  the  attachment  issued,  the  plaintiffs  had  a  verdict 
for  £112.  10s.,  subject  to  the  objections,  which  the  chief  justice  re- 
served. 

Lens,  Serjt.,  now  moved  to  set  aside  the  verdict,  and  enter  a  nonsuit, 
in  case  the  court  should  think  that  the  count  for  money  lent  did  not 
properly  describe  the  coin,  or  that  the  foreign  attachment  could  be  sup- 
ported, for  that  the  plaintiff  could  not  avail  himself  of  the  defendant's 
particular  of  set-off  in  evidence. 

GiBBS,  J.  Suppose  that  this  allusion  to  the  debt  had  been  contained 
in  a  plea,  instead  of  a  notice  of  set-off;  I  wish  to  know  whether  be- 
fore a  defendant  came  to  make  use  of  a  plea,  on  which  the  defendant 
himself  did  not  rely,  nor  want  to  resort  to  it  for  his  defense,  relying 
only  on  the  general  issue,  a  plaintiff  could  have  made  use  of  the  de- 
fendant's plea,  in  order  to  extract  such  parts  of  it  as  made  for  the 
plaintiff',  and  to  use  them  against  the  defendant?  I  think  the  plaintiff 
cannot  carry  the  use  of  the  particular  of  set-off,  which  he  calls  upon 
the  defendant  to  deliver  under  the  notice  of  set-off,  further  than  he 
can  carry  the  notice  of  set-off  itself.  As  to  the  foreign  money,  the  doc- 
trine contended  for  has  been  exploded  these  30  years. 

The  Court  granted  a  rule  nisi  upon  the  other  grounds.*^ 

Mansfield,  C.  J.  Now  that  the  matter  comes  to  be  talked  of  and 
understood,  though  the  objection  strongly  struck  me  at  the  trial,  and 
puzzled  me  at  the  moment,  there  seems  to  be  no  difficulty  in  it  at  all. 
Since  the  statute  of  Anne,  the  defendant  may  plead  a  set-off  of  a 
mutual  debt;  or,  instead  of  so  pleading,  it  was  considered  convenient 
for  some  purpose  or  other,  that  he  might  give  notice  of  set-off.  This 
notice  then  is  equivalent  to  a  plea,  and  it  is  usually  given  in  the  general 
terms  of  money  paid,  money  had  and  received,  &c.  The  party  receiving 
this  notice  of  set-off  may  be  much  at  a  loss  to  know  what  it  means. 
Money  had  and  received  is  one  of  the  widest  expressions  in  the  law : 
it  may  mean  fees  received  by  the  intruder  into  an  office,  or  many  other 
things  equally  dissimilar  to  the  real  transaction ;  and,  therefore,  it  is 
the  modern  practice  to  require,  by  a  judge's  authority,  an  explanation 
called  a  particular.  When  that  is  given,  it  is  exactly  the  same  as  if 
it  had  been  originally  given  in  the  notice  of  set-off;  if  so,  it  is  ever\' 
day's  practice,  that  the  defendant's  language  in  one  plea  cannot  be 
used  to  disprove  another  plea,  as  in  the  familiar  instance  I  have  given 

82  Statement  condensed  and  opinion  of  Dallas,  J.,  omitted. 


4S6  HEARSAY  (Ch.  3 

of  trespass,  and  not  guilty  and  a  justification  pleaded,  where  the  justi- 
fication would  certainly,  if  admissible,  prove  the  act,  in  the  case  the 
reason  of  the  justification  fails.  Therefore  the  particulars  of  the  set- 
off must  be  incorporated  with  the  notice  of  set-oft',  and  cannot  be  given 
in  evidence  to  prove  the  plaintift''s  demand  on  the  issue  of  non  as- 
sumpsit. 

Heath,  J.,  concurred.  It  is  a  common  case  to  plead  not  guilty,  and 
a  justification  of  the  act  which  the  defendant  has  in  his  first  plea  de- 
nied. The  particular  of  set-off  is  the  same  thing  as  the  notice  of  set- 
off, and  is  engrafted  with  it ;  the  notice  of  set-off  is  equivalent  to  a  plea 
of  set-off,  and  cannot  therefore  be  given  in  evidence  for  this  purpose. 

Rule  absolute  to  enter  a  nonsuit."^ 


BOILEAU  v.  RUTLIN. 

(Court  of  Exchequer,  1S48.     2  Exch.  665.) 

Parke,  B.^*  This  case  was  argued  before  my  Brothers  Alderson, 
Rolfe,  and  Piatt,  and  myself,  on  two  days  in  the  course  of  the  sittings 
in  and  after  Hilary  Term,  on  showing  cause  against  a  rule  nisi  to  enter 
a  verdict  for  the  plaintiff,  pursuant  to  leave  reserved  by  Lord  Den- 
man.  The  action  was  for  the  use  and  occupation  of  the  plaintiff's 
house  for  four  years  and  a  quarter,  ending  at  Christmas,  1846.  The 
defendant's  answer  -was,  that  he  had  been  let  into  possession  on  an 
agreement  to  purchase  the  plaintiff's  leasehold  interest  for  £630.,  and 
continued  in  such  possession  for  some  time.  The  defendant  paid 
into  court  a  sum  sufficient  to  cover  the  compensation  for  the  occu- 
pation from  the  end  of  that  time  till  Christmas;  and  the  question 
was,  whether  he  was  bound  to  pay  the  remainder.  In  order  to  dis- 
charge himself  from  the  rent  for  this  period,  it  was  necessary  for 
him  to  prove  that  there  was  an  agreement  to  purchase,  under  which 
he  entered.  He  had  given  notice  to  produce  the  agreement ;  and, 
though  the  plaintiff  offered  to  produce  it,  he  did  not  call  for  it,  but 
he  put  in,  as  evidence  of  the  agreement,  the  plaintiff's  bill  in  Chan- 
cery, which  had  been  filed  to  compel  the  defendant  to  perform  it, 
and  which  of  course  stated  the  terms  of  it.  The  defendant  had  an- 
swered, and  the  cause  had  proceeded  to  a  hearing.  It  was  objected, 
that  the  statements  in  the  bill  were  inadmissible  as  evidence  against 
the  plaintiff.  Lord  Dcnman  received  the  bill  as  some  evidence  of 
the  contract,  reserving  the  point;    and  the  question  in  the  case  is, 

08  Rnt  under  .some  of  tho  modem  codes,  which  require  defenses  to  be  con- 
si.stcnt,  it  .seems  that  an  exprc^ss  admission  or  assertion  in  one  defense  may 
destroy  or  qualify  tlie  effect  of  a  general  denial.  Ilartwell  v.  L'age,  14  Wis. 
49  (IHOl):    Deriiy'v.  (Jallup,  5  Minn.  119  (Gil.  Sf)  [1S61]). 

That  the  failure  to  plead  a  fact  mav  he  treated  as  an  admission.,  see 
Mathew.s  v.  I>ivlnuston,  si;  Conn.  26.^,  8.5  All.  5'J9,  Ann.  Cas.  1014A,  195  (1912). 

«*  Statement  and  part  of  opiniou  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  487 

whether  the  bill  ought  to  have  been  received  for  that  purpose.  It 
was  not  doubted  that,  if  it  was  to  be  received,  it  was  primary  evi- 
dence, on  the  principle  of  the  £ase  of  Slatterie  v.  Pooley,  6  M.  &  W. 
664. 

It  is  certain  that  a  bill  in  Chancery  is  no  evidence  against  the  party 
in  whose  name  it  is  filed,  unless  his  privity  to  it  is  shown.  That  was 
decided  in  Woollett  v.  Roberts,  1  Ch.  Ca.  64,  though  no  such  decision 
was  wanted.  The  proceedings  on  such  a  bill,  after  answer,  tend  to 
diminish  the  presumption  that  it  might  have  been  filed  by  a  stranger, 
and  appear  to  have  been  held  sufficient  to  establish  the  privity  of 
the  party  in  whose  name  it  was  filed :  Snow  d.  Lord  Crawley  v.  Phil- 
lips, 1  Sid.  220.  When  that  privity  is  established,  there  is  no  doubt 
that  the  bill  is  admissible  to  show  the  fact  that  such  a  suit  was  insti- 
tuted, and  what  the  subject  of  it  was;  but  the  question  is,  whether  the 
statements  in  it  are  any  evidence  against  the  plaintiff  of  their  truth, 
on  the  footing  of  an  admission.  Upon  this  point  the  authorities  are 
conflicting. 

In  the  case  referred  to  in  Siderfin,  it  would  seem  that  the  bill,  which 
was  filed  by  the  defendant  to  be  relieved  from  a  bond  as  simoniacal, 
was  used  against  him  to  prove  that  he  was  simoniacally  presented ;  but 
it  does  not  very  distinctly  so  appear. 

In  Buller's  Nisi  Prius,  page  236,  a  bill  in  Chancery  is  said  to  be  "evi- 
dence against  the  complainant,  for  the  allegations  of  every  man's  bill 
shall  be  supposed  to  be  true;  and  therefore,  it  amounts  to  a  confession 
and  admission  of  the  truth  of  any  fact ;  and  if  the  counsel  have  mingled 
in  it  any  fact  that  is  not  true,  the  party  may  have  his  action."  And, 
after  referring  to  the  conflicting  authority  in  Fitzgibbon,  196,  the 
author  of  that  Treatise  on  the  Law  of  Nisi  Prius  lays  it  down  as  a 
clear  proposition,  that  where  the  matter  is  stated  by  the  bill  as  a  fact 
on  which  the  plaintiff  founds  his  claim  for  relief,  it  will  be  admitted  . 
in  evidence,  and  will  amount  to  proof  of  a  confession. 

These  are  the  authorities  in  favour  of  the  defendant.  The  recent 
case  of  Lord  Trimlestown  v.  Kemmis,  9  C.  &  F.  749,  which  was  also 
mentioned,  is  not  one  in  his  favour,  for  the  bill  was  there  admitted  to 
show  what  the  subject  of  the  suit  was,  and  to  explain  a  subsequent 
agreement  for  a  settlement  between  the  parties. 

On  the  other  hand,  in  the  above-mentioned  case  of  Lord  Ferrers  v. 
Shirley,  Fitz.  195,  a  bill  preferred  by  the  defendant,  stating  the  ex- 
istence of  a  deed  at  that  time,  was  objected  to  as  proof  of  that  fact, 
on  the  ground  that  it  was  no  more  than  the  surmise  of  counsel  for 
the  better  discovery  of  the  title ;  and  the  Court  would  not  suffer  it  to 
be  read.  And  Lord  Kenyon,  in  Doe  d.  Bowerman  v.  Sybourn,  7  T.  R. 
2,  where  the  distinction  was  insisted  upon  between  facts  stated  by 
way  of  inducement,  and  those  whereon  the  plaintiff  founds  his  claim 
for  relief,  rejected  that  distinction,  and  pronounced  his  judgment,  in 
which  the  Court  acquiesced,  that  a  bill  in  Chancery  is  never  admitted 


488  HEARSAY  (Ch.  3 

farther  than  to  show  that  such  a  bill  did  exist,  and  that  certain  facts 
were  in  issue  between  the  parties,  in  order  to  let  in  the  answer  or  dep- 
ositions.    *     *     *  . 

These  authorities,  therefore,  afford  no  reason  for  doubting  the  pro- 
priety of  the  decisions  above  referred  to  as  to  bills  in  equity.  It 
would  seem  that  those,  as  well  as  pleadings  at  common  law,  are  not  to 
be  treated  as  positive  allegations  of  the  truth  of  the  facts  therein,  for 
all  purposes,  but  only  as  statements  of  the  case  of  the  party,  to  be 
admitted  or  denied  by  the  opposite  side,  and  if  denied  to  be  proved,  and 
ultimately  submitted  for  judicial  decision. 

The  facts  actually  decided  by  an  issue  in  any  suit  cannot  be  again 
litigated  between  the  same  parties,  and  are  evidence  between  them,  and 
that  conclusive,  upon  a  different  principle,  and  for  the  purpose  of 
terminating  litigation ;  and  so  are  the  material  facts  alleged  by  one 
party,  which  are  directly  admitted  by  the  opposite  party,  or  indirectly 
admitted  by  taking  a  traverse  on  some  other  facts,  but  only  if  the 
traverse  is  found  against  the  party  making  it.  But  the  statements  of 
a  party  in  a  declaration  or  plea,  though,  for  the  purposes  of  thfe 
cause,  he  is  bound  "*  by  those  that  are  material,  and  the '  evidence 
must  be  confined  to  them  upon  an  issue,  ought  not,  it  should  seem,  to 
be  treated  as  confessions  of  the  truth  of  the  facts  stated. 

Many  cases  were  suggested  in  the  argument  before  us,  of  the  in- 
conveniences and  absurdities  which  would  follow  from  their  admis- 
sion as  evidence  in  other  suits,  of  the  truth  of  the  facts  stated.  There 
is,  however,  we  believe,  no  direct  authority  on  this  point.  The  dic- 
tum of  Lord  Chief  Justice  Tindal,  in  The  Fishmonger's  Company 
V.  Robinson,  5  M.  &  G.  192,  which  was  referred  to  in  argument,  seems 

6  5  Powers,  J.,  in  Brown  v.  Aitken  (Vt.)  99  Atl.  265  (1916):  "B.  F.  Combs 
was  called  as  a  witness  by  the  plaintiff,  and  testified,  without  objection,  iliat 
in  1911  he  acted  as  agent  for  the  defendants,  and  as  such  agent  sold  the 
plaintiff  the  premises  in  question,  and  that  the  plaintiff  paid  him  thereon  two 
payments,  amounting  to  $450.  In  cross-examination,  the  defendants  sought 
to  ask  the  witness  about  the  financial  condition  of  the  defendants  and  the 
scope  and  limitations  of  his  agency.  This  was  excluded,  and  the  defendants 
excepted.  Here  was  no  error.  The  whole  subject-matter  of  the  witness' 
agency  was  outside  the  issue,  so  far  as  his  being  agent  for  the  defendants  in 
making  the  sale  was  determined  by  the  first  special  verdict.  Moreover,  if 
anything  regarding  that  agoncj'  in  its  scope  or  effect  was  open  to  litigation  in 
the  second  trial,  it  was  eliminated  by  the  conduct  of  counsel  by  expressly 
and  impliedly  limiting  the  issues  as  hereinbefore  shown.  Cases  are  tried 
in  court  upon  the  issues  joined  by  the  parties,  and  evidence  is  to  bo  received 
only  as  it  bears  upon  those  issues.  Probate  Court  v.  Enridit,  79  Vt.  416,  65 
Atl.  530  (1907).  These  issues  are  usually  such  as  are  made  by  the  pleadings; 
but  counsel  may,  by  conduct  or  agreement,  limit  them  to  one  or  more  of  those, 
and  such  limitation,  unless  otherwise  ordered  by  the  court,  will  hind  them 
and  their  clients  throughout  the  trial.  Tliey  amount  to  binding  waivers  of 
all  issues  not  Included.  National  Life  Ass'n  v.  Speer,  111  Ark.  17.3.  lOH  S.  W. 
1188  (1914)  ;  Leonard  v.  New  England  Mut.  Ix  Ins.  Co..  22  R.  I.  519.  48  Atl. 
808  (1901);  Metlen  v.  Oregon  Short  Line  R.  Co.,  33  Mont.  45,  81  Pac.  737 
(1905).  They  are  not.  In  cliaractor  and  effect,  unlike  an  admission  of  fact, 
whifh  is  binding,  unless  by  leave  of  court  withdrawn.  United  States  for  Use 
of  ICllas  Lvnian  Coal  Co.  v.  United  Stales  Fire  &  Guaranty  Co.,  83  Vt.  278, 
75  Atl.  280  (1910);   Clark  v.  Tudliope,  S9  Vt.  21G,  95  AU.  489  (1915)." 


Sec.  2)  RECOGNIZED   EXCEPTIONS  489 

to  be  considered  as  amounting  to  a  decision  on  this  point ;  but  it 
was  unnecessary  for  the  determination  of  that  case.  It  is  enough, 
however,  to  say,  that  as  to  bills  of  equity,  the  weight  of  authority  is 
clearly  against  their  admissibility,  for  the  only  purpose  for  which 
they  were  material  in  the  present  case;  and  we  are  bound  by  that 
authority. 

It  becomes  unnecessary  to  consider  the  other  point  argued  before 
us.  The  rule  must  be  absolute  to  enter  a  verdict  for  the  larger  sum, 
as  the  defendant  cannot  be  allowed  anything  for  repairs. 

Rule  absolute.*' 

86  Earl,  C,  In  Cook  v.  Barr.  44  N.  Y.  156  (1870):  "When  a  party  to  a  civil 
action  has  made  admissions  of  facts  material  to  the  issue  in  the  action,  It 
is  always  competent  for  the  adverse  party  to  give  them  in  evidence,  and 
it  matters  not  whether  the  admissions  were  in  writing  or  by  parol,  nor 
when  nor  to  whom  they  were  made.  Admissions  do  not  furnish  conclusive 
evidence  of  the  facts  admitted,  unless  they  were  made  under  such  circum- 
stances as  to  constitute  an  estoppel,  or  were  made  in  the  pleadings  in  an  ac- 
tion, when  they  are  conclusive  in  that  action.  They  may  be  contained  in  a 
letter  addressed  to  the  opposite  party,  or  to  a  third  person,  and  in  either  case 
are  entitled  to  equal  weight  and  credit.  They  are  received  in  evidence,  be- 
cause of  the  great  probability  that  a  party  would  not  admit  or  state  anything 
against  himself  or  his  own  interest  unless  it  were  true.  And  I  am  unable 
to  see  why  the  rule  does  not  apply  to  admissions  contained  in  the  pleadings 
in  an  action  under  our  system  of  practice,  which  requires  the  facts  to  be  al- 
leged truly  in  the  pleadings.  It  must  first  be  shown,  however,  by  the  signature 
of  the  party,  or  othen\'ise.  that  the  facts  were  Inserted  with  his  knowledge, 
or  under  his  direction,  and  with  his  sanction.  Here  the  answer,  which  is 
claimed  to  show  the  admissions,  contains  the  assertion  of  facts  which,  from 
the  nature  of  the  case,  if  true,  must  have  been  within  the  knowledge  of  the 
defendant,  and  it  is  verified  by  the  defendant  I  can  conceive  of  no  principle 
or  reason  for  holding  that  admissions  made  under  such  circumstances  are 
not  evidence  against  the  defendant.  It  is  said  in  Phillips  on  Evidence  (vol. 
1  [Van  Cott's  Ed..  1849]  p.  366),  that  'a  person's  answer  in  chancen,'  is  evi- 
dence against  him,  by  way  of  admission,  in  favor  of  a  person  who  was  no 
party  to  the  chancery  suit :  for  the  statement,  being  upon  oath,  cannot  be  con- 
sidered conventional  merely.' " 

And  so  in  Robbins  v.  Butler,  24  111.  387  (1860),  verified  answer  in  chancery. 

In  a  number  of  the  modern  cases  the  courts  have  treated  ordinary  pleadings 
as  admissions,  on  the  assumption  that  the  statements  contained  in  them 
were  made  with  the  knowledge  and  consent  of  the  party  on  whose  behalf  they 
were  filed.  Lindner  v.  St,  Paul  E^re  &  Marine  Ins.  Co.,  93  Wis.  526,  67  N.  W. 
112.5  (1896) ;    Anderson  v.  McPike,  86  Mo.  293  (1885). 

Where  a  pleading  can  be  treated  as  the  statement  or  assertion  of  the  party, 
it  will  not  be  excluded  because  it  purports  to  be  made  on  information  and 
belief  only.  Pope  v.  Allis,  115  U.  S.  363,  6  Sup.  Ct.  69.  29  L.  Ed.  393  (1SS5). 
As  to  the  question  of  personal  knowledge,  see  Shaddock  v.  Town  of  Clifton, 
22  Wis.  114,  94  Am.  Dec.  588  (1867),  post,  p.  509. 

A  plea  of  guilty  to  a  criminal  charge  may  be  received  as  an  admission 
in  a  civil  suit  based  on  the  same  matter.  Corwin  v.  Walton.  IS  Mo.  71,  59 
Am.  Dec.  285  (1853).  For  the  use  of  a  plea  of  guilty  as  an  admission,  after  a 
plea  of  not  guilty  has  been  substituted.  See  Heim  v.  United  States,  46  Wash. 
Law  Rep.  242  (1918),  post,  p.  552. 

The  deposition  of  the  adverse  party,  though  not  competent  as  a  deposition, 
may  be  used  as  an  admission.     Faunce  v.  Gray  (Mass.)  21  Pick.  243  (1838). 


490  HEARSAY  (Ch.  3 

SENAT  V.  PORTER. 

(Court  of  King's  Bench,  1797.     7  Term  R.  158.) 

On  the  trial  of  this  action  on  a  poHcy  of  insurance  at  the  Guild-hall 
Sittings  before  Lord  Kenyon  a  question  arose  respecting  the  admis- 
sibility in  evidence  of  the  captain's  protest.  The  facts  were  these ; 
when  Vaux,  the  broker,  applied  to  the  defendant  informing  him  of  the 
loss  and  demanding  payment,  he  produced  the  different  papers  relating 
to  the  subject,  and  among  the  rest  the  protest  signed  by  the  captain ; 
the  defendant  told  him  he  had  looked  into  the  papers,  but  that  "there 
was  a  point  in  the  case,"  and  he  refused  payment.  On  the  part  of  the 
defendant  it  was  contended  that  the  protest  was  made  evidence  in  this 
case  by  the  plaintiff  as  a  paper  delivered  by  his  agent  to  the  defendant, 
containing  an  account  of  the  loss  on  which  he  rested  his  claim ;  and 
therefore  that  it  amounted  to  a  declaration  made  by  the  plaintiff  to 
the  defendant  of  the  facts  on  which  he  required  payment.  Lord  Ken- 
yon was  clearly  of  opinion  that  the  protest  was  not  admissible  in  evi- 
dence, and  the  plaintiff  obtained  a  verdict. 

On  a  former  day  in  this  term  the  Court  reluctantly  granted  a  rule 
calling  on  the  plaintiff  to  shew  cause  why  there  should  not  be  a  new 
trial,  on  the  ground  that  the  protest  ought  to  have  been  received  in  evi- 
dence. 

Lord  Kenyon,  C.  J.  Great  complaints  have  been  made  in  the  com- 
mercial world,  and  not  without  reason,  of  the  enormous  expence  at- 
tending the  trials  of  insurance  causes ;  it  therefore  becomes  the  Court 
not  to  suffer  that  expence  to  be  encreased  by  unnecessary  motions ; 
and  it  was  with  great  reluctance  that  I  was  induced  to  consent  to  grant 
the  rule  to  shew  cause  in  this  case.  I  have  considered  and  reconsider- 
ed this  question,  and  I  cannot  figure  to  my  imagination  any  arguable 
point  in  it.  That  the  protest  per  se  cannot  be  evidence  is  admitted. 
Then  what  facts  were  proved  to  make  it  evidence  in  this  case?  why, 
that  it  was  in  Vaux's  hands,  and  that  he  shewed  it  to  the  defendant 
on  an  application  for  payment.  But  if  that  circumstance  would  ren- 
der the  protest  evidence,  it  might  equally  be  argued  that  the  allega- 
tions in  a  plaintiff's  bill  in  equity  might  be  read  against  him  merely  be- 
cause the  bill  with  its  contents  must  have  been  shewn  to  the  defend- 
ant;  but  that  cannot  be  pretended.  If  the  plaintiff*  had  availed  himself 
of  any  part  of  this  paper  to  prove  his  case,  the  defendant  would  have 
been  entitled  to  read  the  whole  of  it :  but  the  mere  circumstance  of 
X'aux's  shewing  the  protest  to  the  defendant  when  he  applied  to  him 
for  payment  surely  cannot  render  the  protest  evidence  in  this  case. 

Grose,  J.  This  protest  was  merely  produced  to  the  defendant  as 
a  paper  containing  the  account  of  the  loss  given  by  the  captain:  if  the 
captain  had  been  called  as  a  witness  and  had  given  a  different  account 


Sec.  2)  RECOGNIZED  EXCEPTIONS  491 

of  the  loss  from  that  contained  in  tlie  protest,  the  protest  might  have 
been  produced  to  shew  that  he  was  not  worthy  of  credit ;  but  it  could 
not  be  read  on  behalf  of  the  defendant  to  prove  any  fact  in  the  case. 

Lawrence,  J.  It  seems  to  me  that  the  protest  does  not  become 
evidence  on  account  of  it's  having  been  voluntarily  shewn  by  Vaux  to 
the  defendant  any  more  than  it  would  if  the  plaintiff  had  been  com- 
pelled by  a  Judge's  summons  to  shew  it  to  the  defendant.  It  was  net 
necessary  for  the  plaintiff  to  shew  this  protest  to  the  defendant  before 
he  brought  his  action;  but  the  defendant  might  have  obtained  a 
Judge's  summons  to  compel  him  to  permit  the  defendant  to  inspect 
the  paper;  instead  of  this  Vaux,  the  plaintiif's  agent,  who  wished  to 
act  candidly,  voluntarily  shewed  this  as  well  as  the  other  papers  to  the 
defendant :  but  that  does  not  amount  to  an  admission  of  the  facts  con- 
tained in  the  paper. 

Rule  discharged.^^ 


COMMONWEALTH  v.  KENNEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1847.     12  Mete.  235,  46  Am.  Dec. 

672.) 

Shaw,  C.  J.®*  The  defendant  was  indicted  for  stealing  money  and 
a  bag,  the  property  of  Barzillai  Russell,  from  the  person  of  said  Rus- 
sell. The  averment  of  the  fact  of  stealing,  and  that  the  money  was 
the  property  of  Russell,  were  material  averments.  Russell  was  not 
called  as  a  witness,  doubtless  because  he  could  not  be  found.  But  evi- 
dence was  offered  to  show  that  declarations  were  made  at  the  watch 
house,  by  Russell,  in  the  presence  and  hearing  of  the  defendant,  in  re- 
gard to  the  theft,  to  which  the  defendant  made  no  reply.  This  evi- 
dence was  objected  to  by  the  defendant,  but  was  admitted  by  the  court; 
and  this  is  the  ground  of  exception. 

One  of  the  specific  grounds  on  which  this  exception  was  placed,  we 
think,  is  not  tenable;  namely,  that  the  testimony  of  Russell  was  the 
best  evidence,  and  that  the  defendant  was  entitled  to  it,  with  the  right 
of  cross-examination.  The  testimony  of  the  person  robbed  is  not 
necessary  evidence,  nor  are  other  kinds  of  evidence,  if  sufficient  to 
establish  the  necessar}'  averments,  secondary  proof.     The  evidence, 

c7  But  a  party  may  use  the  statement  of  a  third  person  in  such  a  way  as  to 
adopt  it.    Roe  v.  Rawlings,  7  East,  279  (1806). 

So  the  use  of  an  affidavit  or  a  deposition  to  establish  a  given  fact  may 
amount  to  an  adoption  of  the  statements  contained  in  it.  Richards  v.  Morgan, 
10  Jur.  (N.  S.)  559  (1864). 

See,  also,  Mutual  Ben.  Life  Ins.  Co.  v.  Newton,  22  Wall.  32,  22  K  Ed.  793 
(1874),  semble,  that  where  plaintiff,  in  furnishing  proofs  of  death,  submitted 
a  copy  of  the  coroner's  inquest,  she  might  be  treated  as  adopting  it 

08  Statement  omitted. 


492  HEARSAY  (Ch.  3 

if  competent  at  all,  was  competent  on  the  ground  of  admission  by  the 
defendant,  which,  though  often  slight  as  to  weight,  is  not  secondary. 
But  on  another  ground,  we  take  a  different  view  of  the  admissibility 
of  the  evidence,  depending  on  the  question  whether  the  statements  of 
Russell  in  the  hearing  of  the  defendant,  and  the  silence  of  the  latter,  do 
amount  to  a  tacit  admission  of  the  facts  stated.     It  depends  on  this: 
If  a  statement  is  made  in  the  hearing  of  another,  in  regard  to  facts 
affecting  his  rights,  and  he  makes  a  reply,  wholly  or  partially  admitting 
their  truth,  then  the  declaration  and  tlie  reply  are  both  admissible; 
tlie  reply,  because  it  is  the  act  of  the  party,  who  will  not  be  presumed 
to  admit  any  thing  affecting  his  own  interest,  or  his  own  rights,  unless 
compelled  to  it  by  the  force  of  truth;   and  the  declaration,  because  it 
may  give  meaning  and  effect  to  the  reply.    In  some  cases,  where  a  sim- 
ilar declaration  is  made  in  one's  hearing,  and  he  makes  no  reply,  it 
may  be  a  tacit  admission  of  the  facts.    But  this  depends  on  two  facts ; 
first,  whether  he  hears  and  understands  the  statement,  and  comprehends 
its  bearing ;   and  secondly,  whether  the  truth  of  the  facts  embraced  in 
the  statement  is  within  his  own  knowledge,  or  not;    whetlier  he  is  in 
such  a  situation  that  he  is  at  liberty  to  make  any  reply ;   and  whether 
the  statement  is  made  under  such  circumstances,  and  by  such  persons, 
as  naturally  to  call  for  a  reply,  if  he  did  not  intend  to  admit  it.     If 
made  in  the  course  of  any  judicial  hearing,  he  could  not  interfere  and 
deny  the  statement;    it  would  be  to  cliarge  the  witness  with  perjury, 
and  alike  inconsistent  with  decorum  and  the  rules  of  law.     So,  if  the 
matter  is  of  something  not  within  his  knowledge;   if  the  statement  is 
made  by  a  stranger,  whom  he  is  not  called  on  to  notice;    or  if  he  is 
restrained  by  fear,  by  doubts  of  his  rights,  by  a  belief  that  his  security 
will  be  best  promoted  by  his  silence;   then  no  inference  of  assent  can 
be  drawn  from  that  silence.     Perhaps  it  is  within  the  province  of  the 
judge,  who  must  consider  these  preliminary  questions  in  the  first  in- 
stance, to  decide  ultimately  upon  them ;  but  in  the  present  case  he  has 
reported  the  facts,  on  which  the  competency  of  the  evidence  depend- 
ed, and  submitted  it,  as  a  question  of  law,  to  this  court.    The  circum- 
stances were  such,  that  the  court  are  of  opinion  that  the  declaration  of 
the  party  robbed,  to  which  the  defendant  made  no  reply,  ought  not  to 
have  been  received  as  competent  evidence  of  his  admission,  either  of  the 
fact  of  stealing,  or  that  the  bag  and  money  were  the  property  of  the 
party  alleged  to  be  robbed.    The  declaration  made  by  the  of^cer,  who 
first  brought  the  defendant  to  the  watch  house,  he  had  certainly  no  oc- 
casion to  reply  to.     The  subsequent  statement,  if  made  in  the  hearing 
of  the  defendant,  (of  which  vvc  think  there  was  evidence,)  was  made 
whilst  he  was  under  arrest,  and  in  the  custody  of  persons  having  offi- 
cial authority.    They  were  made,  by  an  excited,  complaining  party,  to 
such  oflficers,  who  were  just  putting  him  into  confinement.     If   not 
strictly  an  official  complaint  to  officers  of  the  law,  it  was  a  proceeding 
very  similar  to  it,  and  he  might  well  suppose  that  he  had  no  right  to 


Sec.  2)  RECOGNIZED  EXCEPTIONS  493 

say  anything  until  regularly  called  upon  to  answer.    We  are  therefore 
of  opinion  that  the  verdict  must  be  set  aside  and  a 
New  trial  granted. °* 


WIGGINS  et  al.  v.  BURKHAM. 
(Supreme  Court  of  the  United  States,  1869.  '  10  Wall.  129,  19  L.  Ed.  884.) 

Mr.  Justice  Swayne  stated  the  case,  and  delivered  the  opinion  of 
the  court.''" 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States  for 
the  District  of  Indiana.  The  action  is  assumpsit.  The  declaration 
contained  only  the  common  counts.  The  case,  as  shown  by  the  bill 
of  exceptions,  is  as  follows:  Burkham,  the  plaintiff,  lived  in  Chicago, 
and  the  defendants  at  Hagerstown,  in  Indiana,  distant  from  Chicago 
about  220  miles  by  railroad.  Upon  the  trial,  evidence  was  given  tend- 
ing to  prove  that  the  plaintiff,  on  or  about  the  16th  of  May,  1866,  sent 
to  the  defendants  by  mail  a  written  statement  of  the  account  sued  upon, 
in  the  nature  of  an  account  current,  and  that  the  defendants  made 
no  objection  to  it  till  on  or  about  the  28th  of  that  month,  when  they 
addressed  a  letter  to  the  plaintiff  by  mail  objecting  to  some  items  of 
the  account,  but  making  no  objection  to  others,  to  which  latter  items 
it  did  not  appear  they  ever  objected  until  after  the  commencement  of 
the  suit.     *     *     * 

The  first  instruction  given  by  the  court  below,  embraces  two  prop- 
ositions: 

1.  That  an  account  rendered,  and  not  objected  to  within  a  reason- 
able time,  is  to  be  regarded  as  admitted  by  the  party  charged  to  be 
prima  facie  correct. 

2.  That  if  certain  items  in  an  account  under  such  circumstances  are 
objected  to  within  a  reasonable  time,  and  others  not,  the  latter  are  to 
be  regarded  as  covered  by  such  an  admission. 

We  see  nothing  objectionable  in  these  propositions.  They  are  in  ac- 
cordance with  all  the  leading  authorities  on  the  subject. 

6  8  See  elaborate  discussion  following  and  applying  the  rule  of  the  principal 
•case.  State  ex  rel.  Tiffany  v.  Ellison,  266  Mo.  604,  182  S.  W.  996,  Ann.  Cas. 
191SC,  1  (1916). 

Where  a  defendant  did  not  testify  on  his  own  behalf  on  the  preliminary 
examination,  such  fact  could  not  be  used  against  him  on  the  trial  as  an  ad- 
mission. Parrott  v.  State,  125  Tenn.  1,  139  S.  W.  1056,  35  L.  R.  A.  (N.  S.)  1073, 
Ann.  Cas.  1913C,  239  (1911). 

Compare  Diggs  v.  United  States,  242  U.  S.  470,  37  Sup.  Ct.  192.  61  L.  Ed. 
442,  L.  R.  A.  1917F,  502  (1917),  ante,  p.  242,  sanctioning  an  inference  against 
a  defendant  who  failed  to  deny  or  explain  certain  matters  in  his  testimony. 

See.  also,  Connecticut  Mut.  Life  Ins.  Co.  v.  Smith,  117  Mo.  261,  22  S.  W. 
623.  38  Am.  St.  Rep.  656  (1893) ;  Morris  v.  McClellan,  154  Ala-  639,  45  South. 
641,  16  Ann.  Cas.  305  (1908),  ante,  p.  241. 

"  0  Part  of  opinion  omitted. 


494  HEARSAY  (Ch.  3 

The  other  exception  also  involves  two  propositions: 

1.  That  the  court  refused  to  instruct  the  jury  that,  upon  the  hypoth- 
esis stated,  the  account  was  objected  to  by  tlie  defendants  within  a 
reasonable  time. 

2.  That  the  court  did  instruct  that  what  was  a  reasonable  time  was 
not  a  question  of  law  to  be  decided  by  the  court,  but  a  question  of  fact 
for  tlie  jur}-. 

Judge  Story  says:  "Between  merchants  at  home,  an  account  which 
has  been  presented,  and  no  objection  made  thereto,  after  the  lapse  of 
several  posts,  is  treated,  under  ordinary  circumstances,  as  being,  by 
acquiescence,  a  stated  account." 

The  principle  which  lies  at  the  foundation  of  evidence  of  this  kind  is, 
that  the  silence  of  the  party  to  whom  the  account  is  sent  warrants  the 
inference  of  an  admission  of  its  correctness.  This  inference  is  more  or 
less  strong  according  to  the  circumstances  of  the  case.  It  may  be  re- 
pelled by  showing  facts  w^hich  are  inconsistent  with  it,  as  that  the 
party  was  absent  from  home,  suffering  from  illness,  or  expected  short- 
ly to  see  the  other  party,  and  intended,  and  preferred,  to  make  his  ob- 
jections in  person.  Other  circumstances  of  a  like  character  may  be 
readily  imagined.  As  regards  merchants  residing  in  different  countries. 
Judge  Story  says:  "Several  opportunities  of  writing  must  have  oc- 
curred." 

We  see  no  objection  to  the  rule  as  he  lays  it  down,  in  respect  to 

parties  in  the  same  country. 

When  the  account  is  admitted  in  evidence  as  a  stated  one,  the  bur- 
den of  showing  its  incorrectness  is  thrown  upon  the  other  party.  He 
may  prove  fraud,  omission,  or  mistake,  and  in  these  respects  he  is  in  no 
wise  concluded  by  the  admission  implied  from  his  silence  after  it 
was   rendered.     *     *     * 

Judgment  affirmed.^ ^ 


ALLEN  v.  UNITED  STATES. 

ft 

(Supreme  Court  of  the  United  States,  1896.    164  U.  S.  492,  17  Sup.  Ct.  154, 

41  L.  Ed.  528.) 

Mr.  Justice  Brown  "  delivered  the  opinion  of  the  court. 
This  was  a  writ  of  error  to  a  judgment  of  the  circuit  court  of  the 
United   States  for  the  Western  district  of  Arkansas  sentencing  the 

71  Compare  Wiedeman  v.  Walpolo,  L.  R.  2  Q.  B.  D.  534  (1891).  to  the  ef- 
fect that  the  failure  to  answer  a  lotlor  cliargiiif;  the  defendant  willi  haviiii,' 
promised  to  marry  the  plaintiff  could  not  be  taken  as  an  admission  of  the 
truth  of  such  Ktatoment. 

That  Rfnerally  IIhtc  is  no  imiilifd  adniission  from  a  failure  to  answer  a 
self-serving  written  statement.  Viele  v.  McLean,  200  N.  Y.  200,  O^i  N.  E.  408 
"(1910). 

72  Part  of  opinion  omitted- 


Sec.  2)  RECOGXIZED  EXCEPTIONS  495 

plaintiff  in  error  to  death  for  the  murder  of  Philip  Hanson,  a  white 
man,  in  the  Cherokee  Nation  of  the  Indian  Territory.  The  defendant 
was  tried  and  convicted  in  1893,  and,  upon  such  conviction  being  set 
aside  by  this  court  (150  U.  S.  551,  14  Sup.  Ct.  196,  37  L.  Ed.  1179), 
was  again  tried  and  convicted  in  1894.  The  case  was  again  reversed 
(157  U.  S.  675,  15  Sup.  Ct.  720,  39  L.  Ed.  854),  when  Allen  was  tried 
for  the  third  time,  and  convicted,  and  this  writ  of  error  was  sued  out. 

The  facts  are  so  fully  set  forth  in  the  previous  reports  of  the  case 
that  it  is  unnecessary  to  repeat  them  here.     *     *     * 

6.  The  fourteenth  assignment  is  to  the  following  language  of  the 
court  upon  the  subject  of  the  flight  of  the  accused  after  the  homicide: 
"Now,  then,  you  consider  his  conduct  at  the  time  of  the  killing  and  his 
conduct  afterwards.  If  he  fled,  if  he  left  the  country,  if  he  sought  to 
avoid  arrest,  that  is  a  fact  that  you  are  to  take  into  consideration 
against  him,  because  the  law  says,  unless  it  "is  satisfactorily  explain- 
ed,— and  he  may  explain  it  upon  some  theory,  and  you  are  to  say 
whether  there  is  any  effort  to  explain  it  in  this  case, — if  it  is  unexplam- 
ed,  the  law  says  it  is  a  fact  that  may  be  taken  into  account  against  the 
party  charged  with  the  crime  of  murder  upon  the  theory  that  I  have 
named,  upon  the  existence  of  this  monitor  called  conscience,  that 
teaches  us  to  know  whether  we  have  done  right  or  wrong  in  a  given 
case." 

In  the  case  of  Hickory  v.  United  States,  160  U.  S.  408,  422,  16  Sup. 
Ct.  327,  332  (40  L.  Ed.  474),  where  the  same  question,  as  to  the  weight 
to  be  given  to  flight  as  evidence  of  guilt,  arose,  the  court  charged  the 
jury  that :  "The  law  recognizes  another  proposition  as  true,  and  it  is 
that  'the  wicked  flee  when  no  man  pursueth,  but  the  innocent  are  as 
bold  as  a  lion.'  That  is  a  self-evident  proposition  that  has  been  recog- 
nized so  often  by  mankind  that  we  can  take  it  as  an  axiom,  and  apply 
it  to  this  case."  It  was  held  that  this  was  eri-or,  and  was  tantamount 
to  saying  to  the  jury  that  flight  created  a  legal  presumption  of  guilt,  so 
strong  and  conclusive  that  it  was  the  duty  of  the  jury  to  act  on  it  as 
an  axiomatic  truth.  So,  also,  in  the  case  of  Alberty  v.  United  States, 
162  U.  S.  499,  509,  16  Sup.  Ct.  864,  868,  40  L.  Ed.  1051,  the  court  used 
the  same  language,  and  added  that  from  the  fact  of  absconding  the  jury 
might  infer  the  fact  of  guilt,  and  that  flight  was  a  silent  admission  by 
the  defendant  that  he  was  unwilling  or  unable  to  face  the  case  against 
him,  and  was  in  some  sense,  feeble  or  strong,  as  the  case  might  be,  a 
confession.  This  was  also  held  to  be  error.  But  in  neither  of  these 
cases  was  it  intimated  that  the  flight  of  the  accused  was  not  a  circum- 
stance proper  to  be  laid  before  the  jury  as  having  a  tendency  to  prove 
his  guilt.  Several  authorities  were  quoted  in  the  Hickory  Case  (page 
417,  160  U.  S.,  page  330,  16  Sup.  Ct.,  40  L.  Ed.  474)  as  tending  to  es- 
tablish this  proposition.  Indeed,  the  law  is  entirely  well  settled  that  the 
flight  of  the  accused  is  competent  evidence  against  him  as  having  a 
tendency  to  establish  his  guilt.  Whart.  Hom.  §  710;  People  v.  Pit- 
cher, 15  Mich.  397. 


496  HEARSAY  (Ch.  3 

This  was  the  substance  of  the  above  instruction,  and,  although  not 
accurate  in  all  its  parts,  we  do  not  think  it  could  have  misled  the 
jur}\     *     *     * 

Affirmed. 


MORSE  V.  MINNEAPOLIS  &  ST.  L.  RY.  CO. 

(Supreme  Court  of  Minnesota.  18S3.    30  Minn.  465,  16  N.  W.  358.) 

Mitchell,  J.^'  This  was  an  action  to  recover  damage  for  the  al- 
leged negligence  of  defendant,  causing  the  death  of  plaintiff's  intes- 
tate while  employed  as  an  engineer  on  its  railroad.  One  of  the  acts 
of  negligence  alleged  to  have  contributed  to  the  injury  was  defend- 
ant's allowing  its  track  to  become  and  remain  out  of  repair;  the 
defects  in  that  respect  consisting  of  a  broken  rail  and  defective  switch, 
which  caused  the  engine  upon  which  the  deceased  was  to  be  thrown 
from  the  track  and  upset.     *    *    * 

Plaintiff  was  also  permitted  to  show  that  after  the  accident  defend- 
ant repaired  the  switch  alleged  to  have  been  defective.  The  court 
held,  in  O'Leary  v.  Mankato,  21  Minn.  65,  that  such  evidence  was 
under  certain  circumstances  competent.  This  case  was  followed  in 
Phelps  V.  Mankato,  23  Minn.  276,  and  Kelly  v.  Southern  M.  R.  Co., 
28  Minn.  98,  9  N.  W.  588,  and  this  position  is  not  without  support 
in  the  decisions  of  other  courts.  But,  if  competent,  such  evidence  is 
only  so  as  an  admission  of  the  previous  unsafe  condition  of  the  thing 
repaired  or  removed,  and  to  render  it  admissible  as  such-  the  act  must 
have  been  done  so  soon  after  the  accident  and  under  such  ch-cum- 
stances  as  to  indicate  that  it  was  suggested  by  the  accident,  and  was 
done  to  remedy  the  defect  which  caused  it.  All  courts  who  admit  the 
evidence  at  all  so  hold.  In  the  present  case  the  change  in  this  switch 
was  made  over  a  year  after  the  accident,  and  after  it  had  been  removed 
to  another  place.  Under  such  circumstances  the  repairs  were,  presum- 
ably, merely  an  ordinary  betterment.  Under  such  a  state  of  facts 
such  evidence  would  not  be  admissible  under  any  rule,  and  its  admis- 
sion was,  therefore,  error.  But,  on  mature  rellection,  we  have  con- 
cluded that  evidence  of  this  kind  ought  not  to  be  admitted  under  any 
circumstances,  and  that  the  rule  heretofore  adopted  by  this  court  is 
on  principle  wrong;  not  for  the  reason  given  by  some  courts,  that 
the  acts  of  the  employes  in  making  such  repairs  are  not  admissible 
against  their  principals,  but  upon  the  broader  ground  that  such  acts 
afford  no  legitimate  basis  for  construing  such  an  act  as  an  admission 
of  previous  neglect  of  duty. 

A  person  may  have  exercised  all  the  care  which  the  law  required, 
and  yet  in  the  light  of  his  new  experience,  after  an  unex{)ected  acci- 
dent has  occurred,  and  as  a  measure  of   extreme  caution,  he  may 

T8  Part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  497 

adopt  additional  safe-guards.  The  more  careful  a  person  is,  the 
more  regard  he  has  for  the  lives  of  others,  the  more  likely  he  would 
be  to  do  so,  and  it  would  seem  unjust  that  he  could  not  do  so  with- 
out being  liable  to  have  such  acts  construed  as  an  admission  of  prior 
negligence.  We  think  such  a  rule  puts  an  unfair  interpretation  upon 
human  conduct,  and  virtually  holds  out  an  inducement  for  continued 
negligence.  Dougan  v.  Champlain  Transp.  Co.,  56  N.  Y.  1 ;  Sewell 
v.  City  of  Cohoes,  11  Hun  (N.  Y.)  626;  Baird  v.  Daly,  68  N.  Y.  547; 
Payne  v  Troy  &  Boston  R.  Co.,  9  Hun  (N.  Y.)  526:  Salters  v.  D.  & 
H.  Canal  Co.,  3  Hun  (N.  Y.)  338;  Dale  v.  Del.,  L.  &  W.  R.  Co.,  73  N. 
Y.  468.  *  *  * 
New  trial  granted.^* 


HARRINGTON  v.  INHABITANTS  OF  LINCOLN. 

(Supreme    Judicial    Court    of    Massachusetts,    1S55.    4    Gray,    563,    64    Am. 

Dec.  95.) 

Action  of  tort  to  recover  damages  occasioned  to  the  person  of  the 
plaintiff  by  a  defect  in  a  highway.  Trial  at  April  term,  1855,  before 
Bigelow,  J.,  who  made  the  following  report  thereof : 

"The  defendants  offered  evidence  of  a  conversation  between  their 
selectmen  and  the  plaintiff,  when  the  former  asked  the  plaintiff  how 
he  would  settle  with  the  defendants.  The  plaintiff  objected  to  any 
evidence  of  the  statements  made  by  him  at  this  interview,  on  the 
ground  that  they  were  made  for  the  purpose  of  effecting  a  compro- 
mise. The  court  ruled  that  no  offer,  made  by  the  plaintiff  in  the 
course  of  this  conversation,  for  the  purpose  of  settling  this  case,  was 
competent;  but  that  all  statements  and  declarations  of  independent 
facts,  relative  to  the  issue,  made  by  the  plaintiff  during  this  interview, 
were  competent. 

"Thereupon  it  was  testified  by  the  witness  that  the  selectmen  told 
the  plaintiff  they  were  wiihng  to  pay  him  for  his  loss  of  time  and  his 
actual  expenses  incurred  in  consequence  of  the  accident;  and  asked 
the  plaintiff  what  these  items  would  actually  amount  to.  The  plain- 
tiff, in,  reply  to  questions,  then  stated  the  amount  of  wages  he  was 
receiving  per  month  at  the  time  of  the  accident;  how  much  time  he 
lost  in  consequence  of  the  accident ;    the  amount  of  his  doctor's  bill ; 

T4  Accord:  Columbia  &  P.  S.  R,  Co.  v.  Hawthorne,  144  U.  S.  202,  12  Sup. 
Ct,  591,  .36  L.  Ed.  405  (1892),  where  a  number  of  the  cases  are  collected. 

■^Tiere  the  question  is  as  to  who  had  control  of  the  premises,  or  whose 
business  it  was  to  repair,  such  matters  have  sometimes  been  received,  not  as 
admissions,  but  as  acts  of  dominion.  Shinners  v. -Proprietors  of  Locks  &  Ca- 
nals, 154  Mass.  168,  28  N    E.  10.  12  L.  R.  A.  554.  26  Am.  St  Rep.  226  (1891). 

The  subsequent  di-scharge  of  an  alleged  negligent  employe  cannot  be  treated 
as  an  implied  admission  of  negligence.     Engel  v.  United  Traction  Co.,  203  >'. 
T.  321,  96  N.  E.  731.  Ann.  Cas.  1913A.  859  (1911). 
Hiiw.Ev.— 32 


498  HEARSAY  (Ch.  3 

the  cost  of  his  board,  while  ill;  the  expense  of  nursing;  and  the 
amount  due  to  his  employer  for  his  lost  time.  These  items  were  not 
given  by  the  plaintiff  as  offers  upon  which  he  was  willing  to  settle, 
but  as  being  his  actual  loss  and  expenses.  To  these  statements  the 
plaintiff  objected,  but  they  were  admitted  by  the  court. 

"The  defendants  also  oft'ered  in  evidence  the  declaration  of  the 
plaintiff  to  a  third  person,  of  the  amount  for  which  he  had  at  some 
previous  time  offered  to  settle  with  the  town.  This  was  objected  to 
by  the  plaintiff ;  but  it  not  being  an  oft'er  of  compromise,  but  only  a 
declaration  of  the  plaintiff  to  a  third  person,  it  was  admitted.    *    *    * 

"The  jury  returned  a  verdict  for  the  plaintiff,  [and  assessed  dam- 
ages at  twenty  dollars.]  If  either  of  the  foregoing  rulings  was  er- 
roneous, the  verdict  is  to  be  set  aside;  otherwise,  judgment  is  to  be 
entered  on  the  verdict." 

B.  F.  Butler,  for  the  plaintiff.  1.  The  plaintiff's  statement  of  sums 
and  amounts  was  not  made  as  a  statement  of  independent  facts,  but 
m  reply  to  an  offer  to  pay  these  items  of  loss  of  time  and  expenses, 
accompanied  by  an  inquiry  what  the  amounts  were,  as  a  basis  of 
settlement.  It  was  equivalent  to  saying  to  the  selectmen,  "Your  oft'er 
amounts  to  only  the  sums,  which  I  name,  which  I  do  not  choose  to 
accept."  A  refusal  of  an  offer  of  compromise  can  be  no  better  evi- 
dence than  the  oft'er  itself. 

2.  The  law  does  not  allow  an  offer  of  compromise  to  be  proved, 
oecause  the  law  encourages  attempts  at  settlement,  and  because  such 
offers  are  not  the  unbiassed  action  of  the  mind,  but  induced  by  hope 
cf  settlement  and  fear  of  litigation.  The  party's  admission  to  a  third 
person  is  only  one  means  of  proving  the  offer,  and  equally  inadmissi- 
ble with  proof  of  the  offer  itself.  Besides,  it  is  wholly  irrelevant  to 
(he  issue  between  the  parties,  as  it  Only  tends  to  show  for  what  sum 
the  plaintiff  was  willing  to  adjust  his  claim.'''' 

Thomas,  J.  1.  The  first  exception  cannot  be  sustained.  The  pre- 
siding judge  ruled  that  no  offer  of  settlement,  made  by  the  plaintiff 
in  a  conversation  had  with  the  agents  of  the  defendants,  with  a  view 
to  the  adjustment  of  the  controversy,  was  competent;  but  that  state- 
ments of  independent  facts,  made  in  the  course  of  such  conversation, 
might  be  admitted.  The  distinction  is  sound.  The  facts  stated  were 
capable  of  being  proved  by  any  competent  evidence,  including  the  ad- 
mission of  the  plaintiff.  The  amount  of  a  doctor's  bill,  the  cost  of 
board  during  sickness,  the  loss  of  time  by  absence  from  the  service 
of  his  employer,  were  simple  facts,  capable  of  exact  certainty — facts, 
the  statement  of  which  would  not  be  modified  by  the  occasion  on  which 
it  was  made,  certainly  not  to  the  prejudice  of  the  party  making  it. 

The  offer  of  compromise  stands  upon  a  very  different  ground. 
Peace  is  of  such  worth  that  a  reasonable  man  may  well  be  presumed 
to  seek  after  it  even  at  the  cost  of  his  strict  right,  and  by  an  abatement 

'5  Sttitemeut  conden.sed  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  499 

from  his  just  claim.  The  offer  which  a  man  makes  to  purchase  it  is 
to  be  taken,  not  as  his  judgment  of  what  he  should  receive  at  the  end 
of  litigation,  but  what  he  is  wiUing  to  receive  and  avoid  it. 

2.  The  evidence  of  the  subsequent  admission  by  the  plaintiff  of  the 
offer  of  compromise  which  he  had  made  was  not  competent.  It  was 
but  one  of  the  modes  of  proving  a  fact  which,  upon  the  soundest  prin- 
ciples of  public  policy,  cannot  be  proved  at  all.  Such  offers  are  not 
to  be  used  to  the  prejudice  of  the  party  making  them,  in  subsequent 
litigation  upon  the  subject.  If  the  plaintiff  had  made  the  oft'er  of 
compromise  in  open  town  meeting,  proof  of  it  would  have  been  ex- 
cluded. His  admission  to  his  neighbor,  upon  his  return  from  the 
meeting,  that  he  had  made  it,  is  excluded  for  the  same  reason.  It  is 
not  a  particular  mode  of  proof,  which  the  law  rejects,  but  the  subject 
matter.     *     *     * 

New  trial  ordered.^® 


HEMINGS  V.  ROBINSON. 
(Court  of  Common  Pleas,  1729.     Barnes'  Notes  Cas.  436.) 

A  point  was  reserved  at  the  sittings  of  Nisi  Prius,  whether  the 
proof  of  the  indorser  of  a  promissory  note  his  acknowledgment  that 
the  name  indorsed  on  said  note  was  his  handwriting,  be  sufficient  to 
prove  the  indorsement  in  an  action  brought  by  plaintiff  as  indorsee 
against  defendant  as  drawer?  The  objection  was,  that  no  person's 
confession  but  the  defendant's  himself  can  be  evidence,  and  the  in- 
dorser's  hand  must  be  proved.  The  objection  was  held  good;  and 
the  verdict  as  to  the  second  promise  in  the  declaration,  was  ordered 
to  be  vacated. 


HANSON  V.  PARKER. 
(Court  of  King's  Bench,  1749.    1  Wils.  257.) 

This  is  an  action  of  debt  upon  a  bond,  with  condition  for  the  pay- 
ment of  a  certain  sum  of  money  to  one  Lydia  Dovey :  the  defendant 
craves  oyer  of  the  condition,  and  pleads  payment  post  diem  to  Lydia 
Dovey.  At  the  trial  it  was  given  in  evidence,  that  Lydia  Dovey,  in 
conversation  touching  this  bond,  being  asked  if  the  defendant  owed 
her  any  money,  declared  he  did  not  owe  her  any  thing,  whereupon 
the  jury  gave  a  verdict  for  the  defendant.  And  now  it  was  moved 
for  a  new  trial,  that  the  declaration  of  Lydia  Dovey,  who  was  not 
the  party  plaintiff  in  this  action,  ought  not  to  affect  the  plaintiff'; 
and  Lydia  Dovey  made  an  affidavit  that  the  money  had  not  been  paid 

7  6  See  Rideout  v.  Newton,  17  N.  H.  71  (1S45),  and  Colburn  v.  Town  of  Gro- 
ton,  66  N.  H.  151,  28  Atl.  95,  22  L.  R.  A.  763  (1SS9),  where  a  number  of  cases 
are  reviewed. 


500  HEARSAY  (Ch.  3 

to  her,  and  that  she  looked  upon  the  defendant  to  be  Indebted  to  the 
plaintiff,  who  was  the  obligee  in  the  bond. 

But  Per  Curiam.  A  new  trial  was  refused,  for  Lydia  Dovey  is 
to  be  considered  as  if  she  were  really  plaintiff,  and  the  action  (as 
appears  to  us)  is  brought  for  her  benefit ;  and  if  the  condition  of 
the  bond  (being  taken  for  payment  of  money  to  her)  was  capable  of 
any  explanation,  it  ought  to  have  been  explained  to  the  jury  at  the 
trial,  and  we  cannot  admit  of  affidavits  to  explain  evidence  given  at  a 
trial,  so  the  plaintiff  took  nothing  by  the  motion. 


BAUERMAN  et  al.  v.  RADENIUS. 
(Court  of  King's  Bench,  1798.     7  Term  R.  663.) 

This  was  an  action  on  the  case,  wherein  the  declaration  stated  that 
in  consideration  that  the  plaintiffs  had  shipped  on  board  a  certain 
vessel  then  lying  at  Embden,  and  whereof  the  defendant  was  master, 
certain  goods  to  be  carried  from  thence  to  London  there  to  be  deliv- 
ered in  good  condition  and  dry  (except  in  case  of  inevitable  damage 
or  leakage)  to  Messrs.  Van  Dyck  and  Co.  for  a  certain  reasonable 
freight  to  be  paid  to  the  defendant,  the  defendant  promised  to  carry 
and  deliver  the  same  accordingly ;  that  the  ship  with  the  goods  arrived 
safely  from  Embden  at  London ;  and  although  Messrs.  Van  Dyck  and 
Co.  paid  the  freight  for  the  same,  yet  the  defendant  did  not  deliver 
the  goods  in  good  condition  and  dry,  although  not  prevented  from  so 
doing  by  inevitable  damage  or  leakage,  but  on  the  contrary  delivered 
the  same  wet  and  ill-conditioned,  and  the  said  goods  were  through  the 
neglect  and  default  of  the  defendant  much  damaged  and  spoiled  &c. 
To  this  the  general  issue  was  pleaded. 

At  the  trial  before  Lord  Kenyon  at  Guildhall  much  evidence  was 
at  first  gone  into  in  order  to  shew  that  the  injury  arose  from  the  un- 
skilful stowing  of  the  goods  on  board  the  vessel,  and  not  from  the 
inevitable  danger  of  the  sea  as  the  defendant  endeavoured  to  establish. 
But  the  principal  question  arose  on  the  production  in  evidence  by  the 
defendant  of  a  letter  from  the  plaintiffs,  who  were  the  shippers  of  the 
goods  to  Van  Dyck  and  Co.,  entirely  exculpating  the  defendant  from 
all  blame  or  imputation  of  negligence  or  misconduct,  and  stating  that 
he  acted  in  every  respect  according  to  their  (the  plaintiffs')  orders 
by  stowing  the  goods  under  their  direction.  But  it  also  appeared  in  the 
same  letter  that  Van  Dyck  and  Co.  were  the  persons  on  whose  risk  thfe 
goods  were  shipped,  that  they  were  the  persons  really  interested  in 
the  suit,  and  had  indemnified  the  plaintiffs  their  agents  in  whose  name 
they  had  brought  this  action.  Whereupon  it  was  contended  at  the  trial 
in  support  of  the  action  that  as  it  was  disclosed  that  Van  Dyck  and  Co. 
were  the  real  plaintiffs,  and  the  nominal  plaintiffs  only  their  agents, 
the  former  ought  not  to  be  concluded  by  the  admissions  of  their  agents 


Sec.  2)  RECOGNIZED  EXCEPTIONS  501 

proved  too  by  letter  without  the  sanction  of  an  oath,  and  that  therefore 
this  evidence  ought  to  be  rejected:  but  Lord  Kenyon  being  of  a  dif- 
ferent opinion,  the  plaintiff  was  nonsuited. 

Gibbs  and  Park  moved  to  set  aside  the  nonsuit.^^ 
•  Lord  Kenyon,  C.  J.  This  was  an  action  brought  by  Bauerman 
and  Co.  against  the  defendant  Radenius ;  and  in  the  course  of  the  trial 
an  admission  by  the  plaintiffs  themselves  was  proved  that  there  was  no 
colour  for  the  action,  which  admission  was  not  fraudulently  obtained 
from  them  but  was  the  opinion  that  the  plaintiffs  really  entertained 
on  the  merits  of  the  case.  And  the  only  question  now  is  whether  or 
not  that  ought  to  conclude  the  case  against  the  plaintiffs  who  made  the 
admission.  It  was  said  by  a  very  learned  Judge,  Lord  Macclesfield, 
towards  the  beginning  of  this  century  that  the  most  effectual  way  of 
removing  land  marks  would  be  by  innovating  on  the  rules  of  evidence ; 
and  so  I  say.  I  have  been  in  this  profession  more  than  40  years,  and 
have  practiced  both  in  courts  of  law  and  equity ;  and  if  it  had  fallen 
to  my  lot  to  form  a  system  of  jurisprudence,  whether  or  not  I  should 
have  thought  it  advisable  to  establish  two  different  courts  with  dif- 
ferent jurisdictions,  and  governed  by  different  rules,  it  is  not  neces- 
sary to  say.  But,  influenced  as  I  am  by  certain  prejudices  that  have 
become  inveterate  with  those  who  comply  with  the  systems  they  found 
established,  I  find  that  in  these  courts  proceeding  by  different  rules  a 
certain  combined  system  of  jurisprudence  has  been  framed  most  bene- 
ficial to  the  people  of  this  country,  and  which  I  hope  I  may  be  indulged 
in  supposing  has  never  yet  been  equalled  in  any  other  country  on 
earth.  Our  courts  of  law  only  consider  legal  rights:  our  courts  of 
equity  have  other  rules,  by  which  they  sometimes  supersede  those  legal 
rules,  and  in  so  doing  they  act  most  beneficially  for  the  subject.  We 
all  know  that,  if  the  courts  of  law  were  to  take  into  their  consideration 
all  the  jurisdiction  belonging  to  courts  of  equity,  many  bad  conse- 
quences would  ensue.     *     *     * 

I  cannot  conceive  on  what  ground  it  can  be  said  that  Bauerman  and 
Co.  may  be  considered  not  as  the  parties  in  the  cause  for  the  purpose 
of  rejecting  their  admissions,  and  yet  as  the  parties  in  the  cause  for  the 
purpose  of  preventing  their  being  examined  as  witnesses.  I  take  it  to 
be  an  incontrovertible  rule  that  the  admission  made  by  a  plaintiff  on  the 
record  is  admissible  evidence ;  and  on  the  trial  of  this  cause  there  was 
proof  of  an  admission  by  the  plaintiffs  that  they  had  no  ground  upon 
which  to  support  the  action.  With  regard  to  the  case  of  Biggs  v. 
Laurence  [3  Term  R.  454] ,  which  was  cited  to  shew  that  an  acknowl- 
edgement made  by  the  defendant's  agent  was  evidence  against  the 
principal,  it  is  sufficient  to  say  that  that  was  not  the  point  on  which 
the  case  was  argued  or  determined  in  this  court.  It  is  my  wish  and  my 
comfort  to  stand  super  antiquas  vias :   I  cannot  legislate,  but  by  my  in- 

T7  statement  condensed  and  part  of  opinion  of  Lord  Kenyon,  O.  J.,  and 
opinion  of  Grose,  J.,  omitted. 


502  HEARSAY  (Ch.  3 

dustry  I  can  discover  what  our  predecessors  have  done,  and  I  will 
servilely  tread  in  their  footsteps.  I  am  therefore  clearly  of  opinion 
on  principles  of  law  that  the  plaintiffs  cannot  recover  in  this  action,  and 
that  we  cannot  in  this  case  assume  the  jurisdiction  of  a  court  of  equity 
in  order  to  overrule  the  rigid  rules  of  law. 

AsHHURST,  J.  It  was  competent  to  Van  Dyck  and  Co.  to  have  made 
themselves  parties  to  the  record,  instead  of  which  they  have  chosen 
to  sue  in  the  names  of  Bauerman  and  Co.,  by  which  they  have  made 
the  latter  the  real  plaintiffs  in  a  court  of  law,  and  are  bound  by  their 
acts  and  by  the  acts  of  other  persons  done  by  tlie  orders  of  Bauerman 
and  Co.  Here  it  is  admitted  that  if  the  letter  in  question  were  to  be 
read  as  against  Bauerman  and  Co.  considering  them  as  the  plaintiffs, 
it  afforded  sufficient  ground  to  convince  a  jury  that  the  plaintiffs 
ought  not  to  recover:  but  it  is  argued  that,  though  the  letter  be  ad- 
missible in  evidence,  as  it  appears  by  the  latter  part  of  it  that  Bauer- 
man and  Co.  were  acting  only  as  agents  for  Van  Dyck  and  Co.  the 
admission  m.ade  by  the  former  ought  not  to  prejudice  the  latter.  But 
that  argument  cannot  be  supported.  When  A.  appoints  B.  his  agent, 
he  is  bound  by  every  act  and  order  of  his  done  within  the  scope  of  his 
authority.  Here  it  appears  by  the  letter  that  Bauerman  and  Co.  were 
present  when  the  ship  was  loading  and  approved  of  the  mode  in  which 
it  was  effected:  then  if  the  loss  happened  in  consequence  of  the  di- 
rections given  by  Bauerman  and  Co.,  Van  Dyck  and  Co.  must  be 
bound  by  it  as  much  as  if  the  orders  had  been  given  by  themselves. 

Lawrence,  J.  The  ground,  on  which  it  must  be  contended  that  the 
admission  made  by  a  mere  trustee  is  not  evidence,  is  that  he  has  no 
interest  in  the  subject,  and  may  therefore  be  induced  to  admit  what  is 
not  true.  But  in  this  case  Van  Dyck  and  Co.  are  in  this  difficulty; 
the  present  plaintiffs  either  have  or  have  not  an  interest:  but  it  must 
be  considered  that  they  have  an  interest  in  order  to  support  the  action, 
and  if  they  have,  an  admission  made  by  them  that  they  have  no  cause 
of  action  is  admissible  evidence.  I  have  looked  into  the  books  to  see 
if  I  could  find  any  case  in  which  it  was  holden  that  the  admission  of  a 
plaintiff  on  the  record  was  not  evidence,  but  have  found  none.  There 
is  a  case  in  Salkeld,  where  Lord  Holt  said  that  if  the  plaintiff  in  eject- 
ment, who  is  considered  only  as  a  trustee  for  the  lessor,  released  the 
action,  he  might  be  committed  for  a  contempt  of  the  court,  but  he  did 
not  say  that  the  release  would  not  defeat  the  action;  this  therefore 
appears  to  be  the  most  that  a  court  of  law  can  do  in  cases  of  this  kind. 

Rule  discharged. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  503 

WHITCOMB  V.  WHITING. 
(Court  of  King's  Bench,  1781.    Doug.  652.) 

Declaration,  in  the  common  form,  on  a  promissory  note  executed  by 
the  defendant ;  Pleas ;  the  general  issue,  and  non  assumpsit  infra  sex 
annos ;  Replication,  assumpsit  infra  sex  annos :  The  cause  was  tried 
before  Hotham,  Baron,  at  the  last  Assizes  for  Hampshire.  The  plain- 
tiff produced  a  joint  and  several  note  executed  by  the  defendant,  and 
three  otliers;  and,  having  proved  payment,  by  one  of  the  others,  of 
interest  on  the  note,  and  part  of  the  principal,  within  six  years,  and  the 
Judge  thinking  that  was  sufficient  to  take  the  case  out  of  the  statute, 
as  against  the  defendant,  a  verdict  was  found  for  the  plaintiff. 

On  Friday,  the  4th  of  May,  a  rule  was  granted  to  shew  cause,  why 
there  should  not  be  a  new  trial,  on  the  motion  of  Lawrence,  who  cited 
Bland  v.  Haslerig,  C.  B.  H.  1  &  2  W.  &  M.  2  Ventr.  151 ;  and,  this  day, 
in  support  of  the  application,  he  contended,  that  the  plaintiff,  by  su- 
ing the  defendant  separately,  had  treated  this  note  exactly  as  if  it  had 
been  signed  only  by  the  defendant;  and,  therefore,  whatever  might 
have  been  the  case  in  a  joint  action,  in  this  case,  the  acts  of  the  other 
parties  were  clearly  not  evidence  against  him.  The  acknowledgment  of 
a  party  himself  does  not  amount  to  a  new  promise,  but  is  only  evidence 
of  a  promise.  This  was  determined  in  the  case  of  Heylin  v.  Hastings, 
reported  in  Salkeld,  29,  and  12  Modern  223 ;  and,  in  Hemings  v.  Rob- 
inson, C.  B.  M.  6  Geo.  2.  Barnes  Oto  Ed.  436,  it  was  decided,  that  the 
confession  of  nobody  but  a  defendant  himself  is  evidence  against  him. 
That  last  case  was  an  action  by  an  indorsee  of  a  note,  against  the 
drawer,  and  the  plaintiff  proved  the  acknowledgment  of  a  mesne  in- 
dorsor  tliat  the  indorsement  on  the  back  of  the  note  was  in  his  hand- 
writing: but  the  court  was  of  opinion,  that  this  was  not  evidence 
against  the  drawer,  but  that  the  indorsement  must  be  proved.  It  would 
certainly  open  a  door  to  fraud  and  collusion  if  this  sort  of  evidence 
were,  in  any  case,  to  be  admitted.  A  plaintiff'  might  get  a  joint  drawer 
to  make  an  acknowledgment,  or  to  pay  part,  in  order  to  recover  the 
whole,  although  it  had  been  already  paid. 

Lord  Mansfield.  The  question,  here,  is  only,  whether  the  action 
is  barred  by  the  statute  of  limitations.  When  cases  of  fraud  appear, 
they  will  be  determined  on  their  own  circumstances.  Payment  by  one, 
is  payment  for  ail,  the  one  acting,  virtually,  as  agent  for  the  rest ;  and, 
in  the  same  manner,  an  admission  by  one,  is  an  admission  by  all ;  and 
the  law  raises  the  promise  to  pay,  when  the  debt  is  admitted  to  be  due. 

WiLLES,  Justice.  The  defendant  has  had  the  advantage  of  the 
partial  payment,  and,  therefore,  must  be  bound  by  it. 

AsHHURST   and  Buller,  Justices,  of  the  same  opinion. 

The  rule  discharged.'^  ^ 

7  8  The  American  cases  appear  to  repudifite  the  doctrine  that  an  nrknowlodg- 
ment  or  new  promise  by  one  joint  promisor  will  take  the  case  out  of  the  stat- 
ute of  limitations  as  to  the  others.    See  cases  collected  in  25  Cyc.  1356. 


504  HEARSAY  (Ch.  3 

THE  KING  V.  INHABITANTS  OF  HARDWICK. 

(Court  of  King's  Bench,  1809.     11  East,  57S.) 

An  appeal  against  an  order  for  the  removal  of  Joseph  Vipond,  Mary 
his  wife,  and  their  children,  by  name,  was  entered  at  the  sessions  in 
the  name  of  "The  Churchwardens  and  Overseers  of  the  Poor  of  the 
Parish  of  Hardwick  in  the  County  of  Norfolk,  Appellants,  and  the 
Churchwardens  and  Overseers  of  the  Poor  of  the  Parish  of  Fulham 
Saint  Mar}-  the  Virgin,  in  the  same  County,  Respondents."  And  upon 
the  hearing  of  the  appeal,  the  Sessions  confirmed  the  order,  subject  to 
the  opinion  of  this  Court  upon  a  case  which  stated. 

The  respondents,  in  order  to  prove  the  pauper's  settlement  in  Hard- 
wick, called  the  father,  who  being  a  settled  inhabitant  of  that  parish, 
refused  to  be  examined.  They  then  called  the  pauper  himself,  who 
proved  from  his  knowledge,  that  his  father  had  resided  on  the  tene- 
ment at  Hardwick  for  25  years,  and  that  it  was  now  worth  more  than 
10/.  per  annum.  And  the  Court  admitted  the  pauper  to  give  evidence 
of  his  father's  declarations  to  him,  that  he  (the  father)  had  purchased 
the  house  when  the  pauper  was  16  years  of  age  for  87/.  and  that  he 
had  about  10  years  ago  laid  out  above  100/.  on  the  premises.  The 
Court  were  of  opinion,  that  the  pauper  was  not  emancipated  by  his  re- 
siding in  Besthorpe  under  the  indenture  of  apprenticeship,  nor  by  any 
other  act  subsequent  to  it;   and  therefore  confirmed  the  order.^' 

Lord  Ellenborough,  C.  J.  Evidence  of  an  admission  made  by 
one  of  several  defendants  in  trespass  will  not,  it  is  true,  estabhsh  the 
others  to  be  co-trespassers :  but  if  they  be  established  to  be  co-trespass- 
ers by  other  competent  evidence,  the  declaration  of  the  one,  as  to  the 
motives  and  circumstances  of  the  trespass,  will  be  evidence  against  all 
who  are  proved  to  have  combined  together  for  the  common  object. 
With  respect  to  the  case  at  the  bar,  two  questions  have  been  made; 
but  that  which  has  been  argued  most  at  length,  and  is  considered  to  be 
of  most  importance,  is.  Whether  the  declaration  of  the  father,  as 
proved  by  the  son,  were  admissible  evidence?  If,  from  the  occupa- 
tion of  this  estate  by  the  father  for  25  years,  within  the  knowledge  of 
the  son,  now  only  37  years  old,  during  the  greater  part  of  that  time, 
as  it  would  appear,  without  any  payment  of  rent,  added  to  the  fact? 
that  40  years  ago  the  estate  was  rented  at  5/.  lOs.  per  annum,  and  is 
now  worth  above  10/.  a  year,  the  Justices  at  the  Sessions  had  drawn 
the  inference,  which  they  might  fairly  have  done,  that  the  father  had 
purchased  it  before  the  son  came  of  age  for  above  30/.,  we  might  have 
been  saved  this  discussion ;  but  as  it  is,  the  question  becomes  material 
to  be  decided.  The  question  then  is.  Whether  the  declaration  of  a 
parishioner  respecting  the  circumstances  of  a  settlement,  of  which  he 
could  not  be  compelled  to  give  evidence  as  a  party  to  the  appeal  de- 

T»  Stat(,-m('nt  condensed  and  part  of  oF)iuion  of  Lord  Ellenborough,  C.  J.,, 
and  opinions  of  Le  liUinc  and  liayley,  JJ.,  omitted. 


Sec.  2)  '  RECOGNIZED   EXCEPTIONS  505 

pending,  be  admissible  in  evidence?  I  consider  all  appeals  against  or- 
ders of  removal,  though  technically  carried  on  in  the  names  of  the 
churchwardens  and  overseers  of  the  respective  parishes,  yet  in  sub- 
stance and  effect  to  be  the  suits  of  the  parishioners  themselves,  who 
are  to  contribute  to  tlie  expense  of  maintaining  the  paupers.  The 
parishioner,  therefore,  being  a  party,  could  not  be  called  upon  as  a  wit- 
ness. 

Then  what  is  there  to  differ  this  from  other  cases  of  aggregate  bod- 
ies, who  are  parties  to  a  suit.  In  general  cases  it  cannot  be  question- 
ed that  the  declarations  of  the  parties  to  a  suit  are  evidence  against 
them;  and  how  is  this  case  distinguishable  from  those  upon  principle? 
What  credit  is  due  to  such  evidence  is  another  consideration :  his  dec- 
laration does  not  conclude  the  parish ;  but  will  be  more  or  less  weighty 
according  to  his  means  of  knowledge,  the  genuineness  of  the  declara- 
tion, and  other  circumstances  of  which  the  Court  would  judge.  A 
declaration  made  by  such  a  party  loosely,  and  without  competent 
grounds  of  knowledge  of  the  fact,  would  not  be  entitled  to  weight;  but 
the  credibility  of  such  evidence  is  quite  a  different  question  from  its 
competency ;  and  it  is  always  open  to  contradiction  like  other  evidence. 
Here,  however,  the  father  had  very  competent  means  of  knowledge  as 
to  the  fact  declared  by  him :  but  it  is  sufficient  for  us  to  say,  that  the 
evidence  was  competent  to  be  received.     *     *     * 

Orders  confirmed.®" 


NUSSEAR  V.  ARNOLD. 

(Supreme  Court  of  Pennsylvania,  1825.     13  Serg.  &  R.  323.) 

Error  to  the  Court  of  Common  Pleas  of  Adams  county.  The  plain- 
tiff in  error,  Michael  R.  Nussear,  was  plaintiff  below,  and  the  defend- 
ant in  error,  George  Arnold,  was  defendant  below ;  where  a  verdict  and 
judgment  were  rendered  in  favor  of  the  defendant. 

It  was  a  trial  on  a  feigned  issue,  directed  by  the  register's  court,  to 
try  the  validity  of  a  writing  purporting  to  be  the  testament  and  last 
will  of  John  Arnold,  deceased.  Three  bills  of  exception  were  taken  to 
the  opinion  of  the  court  below  on  points  of  evidence. 

The  third  bill  of  exceptions  was  to  the  admission  in  evidence  of  the 
declarations  of  Margaret  King,  that  the  testator  was  incapable  of 
transacting  business.  Margaret  King  was  a  principal  devisee  in  the 
will,  which  gave  her  the  whole  estate  (except  a  few  legacies  to  a  small 
amount)  for  her  life;  after  her  death  one-half  was  to  her  relations, 
and  one-half  to  the  testator's  relations. 

80  For  the  difference  between  such  bodies  and  ordinary  private  cori)orations, 
see  Starr  Burving  Ground  Ass'n  v.  North  Lane  Cemetery  Ass'n,  77  Conn.  83, 
58  Atl.  467  (1904). 

In  the  case  of  private  corporations,  the  admission  of  a  stockholder  is  not 
ordinarily  receivable  against  the  corporation. 


506  HEARSAY  (Ch.  3 

Errors  were  now  assigned  on  these  points  by  the  plaintiff  in  error. ®^ 
TiLGHMAX,  C.  J.  *  *  *  The  third  bill  of  exception  was,  to  the 
admission  of  evidence  "of  the  declarations  of  Margaret  King,  tliat  the 
testator  was  incapable  of  transacting  business."  Margaret  King  was 
a  principal  devisee  in  the  will,  which  gave  her  tlie  whole  estate  (except 
a  few  legacies  to  a  small  amount),  for  her  life;  after  her  death,  one- 
half  was  to  go  to  her  relations,  and  one-half  to  the  relations  of  the  tes- 
tator. It  is  said,  in  support  of  this  evidence  that  Margaret  King  was 
the  real  plaintiff  in  this  issue,  the  plaintiff  on  record,  Nussear,  being 
no' more  than  her  agent.  If  the  whole  estate  had  been  devised  to  her, 
there  would  have  been  no  question  but  her  declarations  would  have 
been  evidence,  because  the  plaintiff  on  record  has,  in  truth,  no  interest 
in  the  cause,  and  his  name  is  used  as  mere  matter  of  form.  If  the  issue 
had  been  framed  between  John  Doe  and  Richard  Roe,  it  would  have 
answered  the  purpose  fully  as  well,  security  having  been  given  for  the 
costs,  which  was  done  in  this  case.  But  Margaret  King  is  not  the  only 
person  interested  in  the  establishment  of  the  will,  and  hence  arises  the 
difficulty  of  the  present  question;  the  testator's  own  relations,  one 
of  whom  is  said  to  be  an  infant,  are  also  interested.  The  register's 
court  having  ordered  the  trial  of  this  issue,  the  verdict  and  judgment 
are  conclusive  as  to  the  personal  estate,  and  if  given  against  the  will, 
will  be  evidence,  not  to  be  contradicted,  against  all  persons  claiming 
personal  estate  under  it.  The  declarations  of  Margaret  King,  therefore, 
if  received  in  evidence,  would  affect,  not  only  herself,  but  others  in  no 
manner  connected  with  her,  nor  implicated  in  her  conspiracy.  Granting 
that  she  is  so  much  a  party  to  the  suit,  that  her  confessions  might  be 
evidence  against  herself,  these  confessions  are  not  the  confessions  of 
the  others,  who  have  a  separate  interest.  It  is  not  like  the  case  of 
joint  partners,  where  the  confession  of  one  may  be  used  against  both. 
We  are  now  to  establish  a  general  principle  to  govern  all  cases  of 
this  kind.  It  happens,  that  Margaret  King  has  a  large  interest  under 
this  will ;  but  if  her  declarations  are  evidence,  so  also  must  be  the  dec- 
larations of  a  legatee,  who  takes  but  five  dollars,  or  any  other  sum; 
the  quantum  of  interest  will  make  no  difference.  It  was  this  consider- 
ation which  induced  the  court  to  reject  evidence  of  the  declaration  of 
one  of  the  devisees,  in  the  case  of  Bovard  and  wife  v.  Wallace  and  an- 
other, 4  Serg.  &  R.  499.  Now,  that  I  have  mentioned  that  case,  I  will 
correct  an  error  in  the  opinion  of  the  court,  in  which  it  is  said,  that 
the  same  point  was  determined  in  Miller  v.  Miller,  3  Serg.  &  R.  267, 
8  Am.  Dec.  651.  When  die  opinion  in  Bovard  v.  Wallace  was  deliv- 
ered at  Chambersburg,  the  case  of  Miller  v.  Miller  had  not  been  pub- 
lished, and  the  manuscript  was  in  the  hands  of  the  reporters ;  hearing 
that  the  point  had  arisen  in  that  case,  I  thought  it  had  been  decided, 
and  thence  arose  the  error.  But  on  mature  rellection,  I  think  the  deci- 
sion in  Bovard  v.  Wallace  was  right.    The  same  question  was  decid'id, 

81  StatemC'Dt  condensed  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  507 

in  the  same  manner,  by  the  Supreme  Court  of  Massachusetts  in  Phelps 
&  Co.  V.  Hartwell  &  Co.,  1  Mass.  71,  and  that  is  the  only  decision,  di- 
rectly in  point,  which  I  have  been  able  to  find,  out  of  Pennsylvania. 
It  is  a  case  sui  generis,  where  the  rights  of  several  persons,  depending 
all  on  the  same  instrument,  are  tried  together,  and  where,  so  far  as 
concerns  personal  estate,  tlie  law  admits  of  no  other  mode  of  trial. 
Under  these  circumstances,  it  is  unsafe  and  unjust,  to  permit  the  rights 
of  one  to  be  affected  by  the  declarations  of  another,  and  therefore,  I 
am  of  opinion,  that  the  evidence  ought  not  to  have  been  admitted. 

The  judgment  is  to  be  reversed  and  a  venire  facias  de  novo  award- 
ed.«2 


TAYLOR  V.  GRAND  TRUNK  RY.  CO. 

(Supreme  Judicial  Court  of  New  Hampshire,  1869.    48  N.  H.  304,  2  Am.  Rep. 

229.) 

Case  to  recover  for  injuries  alleged  to  have  been  sustained  by  Emma 
Taylor,  in  Sept.,  1866,  while  travelling  on  defendants'  road.  In  the 
writ,  dated  Oct.  3,  1866,  plaintiff  was  described  as  a  minor  suing  by 
A.  W.  Pope,  her  next  friend.  At  April  Term,  1867,  the  death  of 
plaintiff  was  suggested,  and  John  Bailey,  2d,  her  administrator,  was 
admitted  to  prosecute  the  action.    *    *    * 

It  appeared  that  Emma  Taylor  died  under  twenty-one  years  of  age, 
unmarried,  and  without  issue.  Defendants  oft'ered  to  prove  declara- 
tion made  after  the  accident,  and  before  the  death  of  Emma,  by  her 
father,  who  is  still  living.  The  evidence  was  excluded,  subject  to 
defendants'  exception.^^ 

Bellows,  j.  *  *  *  Upon  the  subject  of  the  father's  admissions 
it  appears  that  they  were  made  during  the  daughter's  life,  and  when 
he  had  no  interest  in  the  suit  which  she  had  commenced  by  her  next 
friend,  A.  W.  Pope ;  and  the  competency  of  those  admissions  is  urged 
upon  the  ground  that  the  avails  of  this  suit  now  prosecuted  by  the 
daughter's  administrator,  will  go  to  the  father  as  the  sole  representa- 
tive of  the  daughter,  and  that  the  father  thus  became  the  party  in  in- 
terest. 

At  the  time  the  admissions  proposed  to  be  proved  were  made,  the 
father  occupied  no  position  that  would  render  his  admissions  com- 
petent. In  Haney  v.  Donnelly,  12  Gray  (Mass.)  361,  it  was  held  that 
the  declarations  of  the  father  in  respect  to  injuries  received  by  his 

82  And  so  In  Sliailer  v.  Bumstead,  99  Mass.  112  (ISGS) ;  Schierbaum  v. 
Schemme  157  Mo.  1,  57  S.  W.  526,  80  Am.  St.  Rep.  604  (1900) ;  McCune  v. 
Ro^Tiolds,  288  111.  188.  123  N.  E.  317  (1919):  Old  Colony  Trust  Co.  v.  Di  Cola 
(Mass.)  123  N.  B.  454  (1919) ;  James  v.  Fairall,  154  Iowa,  253.  134  N.  W.  60S, 
38  L.  R.  A.  (N.  S.)  731  (1912),  annotated,  where  a  number  of  the  cases  are  col- 
lected. ,    , 

But  see  Armstrong  v.  Farrar,  8  Mo.  627  (1844),  where  it  was  assumed  that 
the  parties  took  a  joint  interest  under  the  will. 

8  3  Statement  condensed  and  part  of  opinion  omitted. 


508     •  HEARSAY  (Ch. 


minor  son  were  not  admissible  in  favor  of  the  defendant  in  a  suit 
afterwards  brought  by  the  son  by  the  father  as  his  next  friend.  This 
was  put  upon  the  ground  that  there  was  no  proof  that  up  to  the 
time  of  those  declarations  the  father  was  the  son's  agent. 

If  in  this  case  the  son  was  regarded  as  the  real  plaintiff  it  would 
seem  to  be  inequitable  that  he  should  be  affected  by  the  declarations 
of  his  father  at  a  time  when  he  was  in  no  way  the  agent  or  repre- 
sentative of  the  son.  If,  however,  the  father  after  such  declarations 
became  the  sole  party  in  interest  to  a  suit  for  injuries  to  the  son,  a 
very  different  case  would  be  presented. 

In  the  case  of  negotiable  paper  transferred  after  it  is  dishonored, 
and  sued  by  the  endorsee,  the  declarations  of  the  endorser  made 
while  he  held  the  bill  or  note  are  admissible  against  the  endorsee, 
upon  the  ground  that  they  are  the  admissions  of  one  under  whom  the 
endorsee  derives  his  title.  He  will  not,  however,  be  affected  by  ad- 
missions of  the  endorser  after  the  transfer,  nor  by  his  statements 
made  before  he  became  the  holder  of  the  bill  or  note. 

If  the  endorser  retains  an  interest  in  the  bill  or  note,  as  if  he  has 
pledged  it  for  less  than  the  amount  due,  then  his  declarations  made 
after  the  transfer  may  be  received  to  affect  his  own  interest,  but  not 
to  affect  the  interest  of  the  endorsee.  1  Greenl.  Evi.  §  190,  and  notes 
and  cases ;  Bond  v.  Fitzpatrick,  4  Gray  (Mass.)  89,  92 ;  Sylvester  v. 
Crapo,  15  Pick.  (Mass.)  92. 

If  a  suit  is  brought  by  the  holder  of  such  bill  or  note,  the  defendant, 
we  think,  may  prove  the  admissions  of  such  holder,  made  before  as 
well  as  after  it  came  into  his  possession.  At  common  law  the  de- 
fendant could  not  call  the  plaintiff  to  prove  the  fact  so  admitted,  and 
it  certainly  is  just  that  he  should  be  allowed  to  prove  the  admissions, 
nor  can  we  perceive  any  legal  objection  to  it.  On  the  contrary  the 
general  principle  is  that  the  admissions  of  a  party  against  himself  are 
competent,  and  we  are  not  aware  that  this  is  limited  to  admissions 
made  while  he  held  the  claim  in  question.  Whether  his  admissions 
shall  affect  a  third  person  is  a  very  different  question  as  we  have  al- 
ready seen. 

Upon  the  whole,  if  under  the  circumstances  the  father  is  to  be  con- 
sidered the  party  in  interest  here,  we  are  of  the  opinion  that  his  admis- 
sions, though  made  before  he  acquired  such  interest,  are  competent 
to  be  proved  by  the  defendant. 

The  true  rule  is,  we  think,  laid  down  in  Plant  v.  McEwen,  4  Conn. 
544,  in  these  words :  "On  general  principles,  the  declarations  and 
acts  of  the  party  of  record,  whether  he  had  or  had  not  an  interest  in 
the  subject  at  the  time  of  making  or  performing  them,  are  admissible 
in  evidence  against  him."     And  see  Starke's  Evi.  4th  part,  page  30. 

The  question  is,  then,  whether  the  father  was  to  be  regarded  as 
the  party  in  interest  in  this  cause.  If  the  disposition  of  the  estate  is 
to  be  governed  by  our  statute  of  distributions,  then  it  would  seem  that 
the  whole  estate  of  the  dauc^hter  including  the  claim  here  in  suit  would 


Sec.  2)  RECOGNIZED   EXCEPTIONS  509 

go  to  the  father.  It  does  not  appear,  however,  that  the  suit  is  prose- 
cuted by  him,  nor  does  it  appear  that  he  has  the  sole  interest  in  it,  or 
that  others  would  not  have  claims  upon  the  amount  recovered,  as  cred- 
itors of  the  deceased  or  by  way  of  lien  for  costs  and  disbursements 
in  this  suit. 

In  the  case  of  Plant  v.  McEwen,  4  Conn.  544,  before  cited,  which 
was  a  suit  upon  a  probate  bond  given  by  the  defendant  as  executor 
of  his  father,  the  plaintiff  offered  in  evidence  the  acts  of  the  defend- 
ant before  the  testator's  death  in  order  to  establish  a  claim  against 
the  estate.  The  evidence  was  received  at  the  trial,  and  on  motion 
for  a  new  trial  it  was  held  that  although  the  evidence  might  be  com- 
petent if  it  affected  the  interests  of  defendant  alone,  it  was  not  ad- 
missible to  affect  the  heirs  of  the  testator,  and  a  new  trial  was  grant- 
ed.    *     *     * 

Upon  these  authorities  it  does  not  appear  that  enough  has  been 
shown  to  give  the  father  the  character  of  a  party  in  interest,  or  to 
make  his  declarations  admissible  against  the  administrator  or  the 
persons  he  may  represent.  Should  he  be  shown  to  the  party  in  in- 
terest for  whose  benefit  the  suit  is  prosecuted,  his  admissions  would 
be  competent  the  same  as  if  he  were  the  party  of  record;  for  the 
law,  with  a  view  to  evidence,  regards  the  real  parties.  Starkie's  Evi. 
4th  part,  pages  31,  32.  and  Carleton  v.  Patterson  [29  N.  H.  580], 
before  cited;    1  Greenl.  Evi.  180.    *    *    * 

New  trial  granted. 


SHADDOCK  et  ux.  v.  TOWN  OF  CLIFTON. 
(Supreme  Court  of  Wisconsin,  1867.     22  Wis.  114,  94  Am.  Dec.  588.) 

Action  by  husband  and  wife  for  injuries  to  the  wife  alleged  to  have 
been  caused  by  the  negligence  of  the  defendant  in  maintaining  one  of 
its  streets  in  an  unsafe  condition,  whereby  the  wagon  in  which  the 
wife  was  riding  was  overturned.  The  trial  court  excluded  certain  ad- 
missions by  the  husband.** 

Dixon,  C.  J.  Has  the  husband  such  an  interest  in  the  action  that 
his  admissions  of  facts  tending  to  defeat  it  ought  to  be  received  in 
evidence?  We  think  he  has.  The  action  is  by  husband  and  wife,  to 
recover  damages  for  injuries  done  to  the  person  of  the  wife.  Such 
damages,  when  recovered,  are  not  the  separate  property  of  the  wife, 
under  the  statute  enlarging  the  rights  of  married  women  as  to  prop- 
erty. Rights  of  actions  for  torts  of  this  nature  are  not  included,  but 
only  such  real  and  personal  property  as  a  married  woman  may  re- 
ceive by  inheritance,  or  by  gift,  grant,  devise,  or  bequest  from  any 
person  other  than  her  husband.  Rev.  St.  chap.  95,  §  3.  The  damages, 
therefore,  when  recovered,  will  belong  to  the  husband.     He  may  re- 

»<  Statement  condensed  and  part  of  opinion  omitted. 


510  HEARSAY  (Ch.  3 

duce  them  to  possession,  and  dispose  of  them  as  he  pleases.  He  con- 
trols the  action,  and  may  discontinue  it,  or  give  a  release.  Any  set- 
tlement made  or  discharge  properly  given  by  him,  will  bind  the  wife. 
Southworth  v.  Packard,  7  Mass.  95 ;  Beach  v.  Beach,  2  Hill  (N.  Y.) 
260,  38  Am.  Dec.  584;  Ballard  v.  Russell,  33  Me.  196,  54  Am.  Dec. 
620.  It  is  true,  should  the  husband  die  before  the  wife,  and  before 
a  recovery,  and  without  having  released  the  damages,  the  right  of 
action  would  survive  to  the  wife,  and  it  might  be  prosecuted  in  her 
name  alone.  But  the  right  of  the  wife  is  so  remote  and  uncertain  as 
scarcely  to  be  considered  during  the  Hfetime  of  the  parties.  It  may, 
with  almost  strict  legal  accuracy  be  said,  that  the  husband  has  the  ex- 
clusive interest.  For  these  reasons,  we  think  his  admissions  should 
be  received.     *     *     * 

The  admissions  of  the  husband  being  receivable,  the  next  question 
is,  whether  there  was  anything  in  the  nature  of  the  admissions  offered 
which  justified  the  circuit  court  in  excluding  them  from  the  consid- 
eration of  the  jury.  The  first  ofifer  was,  to  prove  by  the  witness  Dan- 
iel Currier,  that  in  an  interview  between  him  and  the  husband,  the 
day  after  the  accident  happened,  the  husband  said  that  the  accident 
would  not  have  occurred  if  Anna  McGray  (the  person  driving  the 
team)  had  not  struck  the  off  horse,  and  made  him  jump  against  the 
near  one  and  push  him  off.  It  appears  from  other  parts  of  the  record, 
that  the  husband  was  not  present  at  the  time  and  place  of  the  accident, 
and  consequently  that  his  knowledge  or  information  as  to  what  then 
occurred  must  have  been  derived  from  the  statements  of  either  Anna 
McGray  or  his  wife,  or  both.  For  the  plaintiffs  it  is  contended  that 
the  admission  was  properly  rejected,  because  it  was  of  matter  of 
hearsay.*"  Mr.  Greenleaf  (1  Greenl.  Ev.  §  202)  says  it  has  been  made 
a  question,  whether  the  admission  of  matters  stated  as  mere  hearsay 

ssNapton,  J.,  In  Sparr  v.  Wellman,  11  Mo.  230  (1847):  "It  is  the  prov- 
ince of  a  witness  to  state  facts  and  circumstances,  from  wliich  the  jury  may 
draw  inferences,  but  is  not  for  the  witness  to  state  his  own  inferences  or 
opinions.  The  language  used  by  Sparr  was  therefore  properly  accompanied 
with  the  circumstances  under  which  it  was  used,  and  it  was  for  the  jury 
to  determine  what  meaning  should  be  given  to  it  under  these  circumstances. 
The  circumstances  detailed  by  the  witness— that  he  was  a  collector  of  news; 
that  the  conversation  was  about  dinner  time,  when  a  crowd  was  assembled ; 
that  it  was  a  hurried  conversation— might  lead  the  jury  to  the  conclusion, 
that  Spnrr  was  merely  stating  what  he  had  heard  from  others,  and  about 
which  he  had  formed  no  opinion.  If  this  was  the  conclusion  of  the  jury,  it 
was  their  duty  to  disregard  it.  It  could  not  amount  to  an  admission.  On  the 
other  hand,  there  were  other  circumstances,  in  addition  to  those  mentioned 
by  the  witness,  but  which  were  in  evidence,  from  which  a  different  conclusion 
might  have  been  drawn.  Sparr  was  an  innkeeper,  and  Wellman  was  his 
guest.  A  robl)ery  was  alleged — and  the  innkeeper  hinisflf,  in  this  con- 
versation with  Crenshaw,  and  afterwards  with  another  witness,  speaks  of  It 
as  a  fact,  without  qualification.  Might  it  not  be  inferred,  from  the  relation 
of  the  parties,  tiiat  tin?  Innkecnjer,  upon  hearing  such  a  rejiort,  would  feel 
Buiricient  solicitude  for  tiie  credit  of  his  house,  to  make  the  necessary  Inquiries 
and  satisfy  himself  of  the  truth  of  tlie  reported  robbery,  liefore  he  would 
contribute  to  its  pronmlgation  through  the  columns  of  a  daily  newspaper? 
It  lie  bad    made  siicli   Inquiries,  and  became  convinced  of  the  truth  of  the 


Sec.  2^  RECOGNIZED  EXCEPTIONS  511 

is  CO  be  received. in  evidence,  and  leaves  it  in  doubt.  The  Court  of 
Appeals,  by  a  majority  decision,  in  Stephens  v.  Vroman,  16  N.  Y. 
381,  held  such  an  admission  not  receivable.  But  the  admission  here 
offered  was  not  of  a  matter  stated  as  mere  hearsay,  but  of  a  matter 
stated  as  a  fact — a  fact  not,  however,  as  it  would  seem,  within  the 
personal  knowledge  of  the  party  making  the  admission,  but  derived 
by  information  from  others.  Ought  such  an  admission  to  be  received? 
We  are  inclined  to  think  that  it  should.  Verbal"  admissions  are  in  some 
respects  evidence  of  a  very  weak  character ;  and,  now  that  the  parties 
themselves  are  in  general  competent  witnesss,  they  are  open  to  the 
fullest  explanation.  If  the  husband  had  received  such  information  as 
satisfied  him  that  the  striking  of  the  horse  was  the  cause  of  the  acci- 
dent, and  as  induced  him  deliberately  to  admit  it  as  a  fact,  it  was  cer- 
tainly some  evidence  to  go  to  the  jury  to  show  that  the  plaintiffs'  claim 
of  damages  was  unfounded.  It  was  an  admission  strongly  against  the 
interest  of  the  party  making  it,  and  appears  to  us  to  be  within  the  gen- 
eral rule  sanctioning  evidence  of  that  nature.  *  *  * 
Venire  de  novo."' 


SPARF  et  al.  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1895.     156  U.  S.  51,  715,  15  Sup.  Ct. 

273,  39  L.  Ed.  343.) 

Mr.  Justice  Harlan  ®^  delivered  the  opinion  of  the  court. 

The  plaintiffs  in  error  and  Thomas  St.  Clair  were  indicted  jointly 
for  the  murder  of  Maurice  Fitzgerald  upon  the  high  seas,  on  board 
of  an  American  vessel,  the  bark  Hesper,  as  set  forth  in  the  indictment 
mentioned  in  St.  Clair  v.  U.  S.,  154  U.  S.  134,  14  Sup.  Ct.  1002,  38 
L.  Ed.  936.  On  motion  of  the  accused,  it  was  ordered  that  they  be 
tried  separately.  St.  Clair  was  tried,  found  guilty  of  murder,  and  sen- 
report,  he  was  then  stating  as  fact,  what  he  had  not  only  heard,  but  believed. 
An  admission  is  the  statement  of  a  fact  against  the  interest  of  a  party  making 
it — but  it  is  not  essential  to  constitute  it  an  admission,  that  the  fact  should 
have  come  under  the  personal  observation  of  the  declarant.  Undoubtedly  ad- 
missions of  the  latter  kind  are  much  stronger  than  where  tlie  declaration  is 
of  a  fact,  of  which  the  party  could  have  no  personal  knowledge.  But  where 
a  party  believes  a  fact  upon  evidence  sufficient  to  convince  him  of  its  exist- 
ence, his  declaration  of  the  existence  of  that  fact,  if  against  his  interest.  Is 
evidence  against  him.  It  is  no  doubt  evidence  of  a  very  unsatisfactory  char- 
acter, depending  altogether  on  the  circumstances  under  which  it  is  made, 
but  it  is  competent." 

8c  Where  modern  statutes  have  destroyed  the  husband's  interest  in  the 
wife's  chose  in  action,  the  fact  that  he  is  joined  as  a  nominal  party  with  her 
is  not  sufficient  to  make  liis  admission  competent  against  her.  White  v.  In- 
gram, 110  Mo.  474,  19  S.  W.  827  (1892). 

8  7  Part  of  opinion  omitted;  also  dissenting  opinions  of  Mr.  Justice  Brewer 
and  Mr.  Justice  Gray. 


512  HEARSAY  (Ch.  3 

tenced  to  suffer  the  punishment  of  death.  Subsequently  the  order  for 
separate  trials  was  set  aside,  and  the  present  defendants  were  tried 
together,  and  both  were  convicted  of  murder.  A  motion  for  a  new 
trial  having  been  overruled,  a  Hke  sentence  was  imposed  upon  them. 

The  general  facts  of  this  case  do  not  differ  from  those  proved  in  St. 
Clair's  Case,  and  some  of  the  questions  arising  upon  the  present  as- 
signments of  error  were  determined  in  that  case.  Only  such  questions 
will  be  here  examined  as  were  not  properly  presented  or  did  not  arise 
in  the  other  case,  and  are  of  sufficient  importance  to  require  notice  at 
our  hands. 

In  the  night  of  January  13,  1893,  Fitzgerald,  the  second  mate  of  the 
Hesper,  was  found  to  be  missing,  and  it  was  believed  that  he  had  been 
killed,  and  his  body  thrown  overboard.  Suspicion  being  directed  to 
St.  Clair,  Sparf,  and  Hansen,  part  of  the  crew  of  the  Hesper,  as  par- 
ticipants in  the  killing,  they  were  put  in  irons,  by  order  of  Capt.  Soder- 
gren,  master  of  the  vessel,  and  were  so  kept  during  the  voyage  from 
the  locality  of  the  supposed  murder  to  Tahiti,  an  island  in  the  South 
Pacific,  belonging  to  the  French  government.  They  were  taken  ashore 
by  the  United  States  consul  at  that  island,  and  subsequently  were  sent, 
with  others,  to  San  Francisco,  on  the  vessel  Tropic  Bird. 

At  the  trial,  Capt.  Sodergren,  a  witness  for  the  government,  was 
asked  whether  or  not  after  the  13th  day  of  January,  and  before  reaching 
Tahiti,  which  was  more  than  1,000  miles  from  the  locality  of  the  al- 
leged murder,  he  had  any  conversation  with  the  defendant  Hansen 
about  the  killing  of  Fitzgerald.  This  question  having  been  answered  by 
the  witness  in  the  affirmative,  he  was  fully  examined  as  to  the  circum- 
stances under  which  the  conversation  was  held.  He  said,  among  other 
things,  that  no  one  was  present  but  Hansen  and  himself.  Being  asked 
to  repeat  the  conversation  referred  to,  the  accused,  by  the  counsel  who 
had  been  appointed  by  the  court  to  represent  them,  objected  to  the 
question  as  "irrelevant,  immaterial,  and  incompetent,  and  upon  the 
ground  that  any  statement  made  by  Hansen  was  not  and  could  not  be 
voluntary."  The  objection  was  overruled,  and  the  defendants  duly 
excepted.  The  witness  then  stated  what  Hansen  had  said  to  him. 
That  evidence  tended  strongly  to  show  that  Fitzgerald  was  murdered 
pursuant  to  a  plan  formed  between  St.  Clair,  Sparf,  and  Hansen ;  that 
all  three  actively  participated  in  the  murder ;  and  that  the  crime  was 
committed  under  the  most  revolting  circumstances. 

Thomas  Green  and  Edward  Larsen,  two  of  the  crew  of  the  Hesper, 
were  also  witnesses  for  the  government.  They  were  permitted  to 
state  what  Hansen  said  to  tliem  during  the  voyage  from  Tahiti  to  San 
Francisco.  This  evidence  was  also  objected  to  as  irrelevant,  imma- 
terial, and  incompetent,  and  upon  the  further  ground  that  the  state- 
ment the  accused  was  represented  to  have  made  was  not  voluntary. 
But  the  objection  was  overruled,  and  an  exception  taken.     *     *     * 

The  declarations  of  Hansen,  as  detailed  by  Sodergren,  Green,  and 


Sec.  2)  RECOGNIZED   EXCEPTIONS  513 

Larsen,  were  clearly  admissible  in  evidence  against  him.     There  was 
no  ground  on  which  their  exclusion  could  have  been  sustained.    *    *    * 

The  declarations  of  Hansen  after  the  killing,  as  detailed  by  Green 
and  Larsen,  were  also  admissible  in  evidence  against  Sparf,  because 
they  appear  to  have  been  made  in  his  presence,  and  under  such  cir- 
cumstances as  would  warrant  the  inference  that  he  would  naturally 
have  contradicted  them  if  he  did  not  assent  to  their  truth. 

But  the  confession  and  declarations  of  Hansen  to  Sodergren  after 
the  killing  of  Fitzgerald  were  incompetent  as  evidence  against  Sparf. 
St.  Clair,  Hansen,  and  Sparf  were  charged  jointly  with  the  murder  of 
Fitzgerald.  What  Hansen  said  after  the  deed  had  been  fully  consum- 
mated, and  not  on  the  occasion  of  the  killing,  and  in  the  presence  only 
of  the  witness,  was  clearly  incompetent  against  his  codefendant,  Sparf, 
however  strongly  it  tended  to  connect  the  latter  with  the  commission 
of  the  crime.  If  the  evidence  made  a  case  of  conspiracy  to  kill  and 
murder,  the  rule  is  settled  that  "after  the  conspiracy  has  come  to  an 
end,  and  whether  by  success  or  by  failure,  the  admissions  of  one  con- 
spirator by  way  of  narrative  of  past  facts  are  not  admissible  in  evi- 
dence against  the  others."  Logan  v.  U.  S.,  144  U.  S.  263,  309,  12 
Sup.  Ct.  617,  36  L.  Ed.  429;  Brown  v.  U.  S.,  150  U.  S.  93,  98,  14 
Sup.  Ct.  37,  37  L.  Ed.  1010;  Wright,  Cr.  Consp.  (Carson's  Ed.)  212. 
213.  217;  1  Greenl.  Ev.  §  233.  The  same  rule  is  appHcable  where  the 
evidence  does  not  show  that  the  killing  was  pursuant  to  a  conspiracy, 
but  yet  was  by  the  joint  act  of  the  defendants.     *     *     * 

We  are  of  opinion  that  as  the  declarations  of  Hansen  to  Sodergren 
were  not,  in  any  view  of  the  case,  competent  evidence  against  Sparf, 
the  court,  upon  objection  being  made  by  counsel  representing  both  de- 
fendants, should  have  excluded  them  as  evidence  against  him,  and  ad- 
mitted them  against  Hansen.  The  fact  that  the  objection  was  made 
in  the  name  of  both  defendants  did  not  justify  the  court  in  overruling 
it  as  to  both,  when  the  evidence  was  obviously  incompetent,  and  could 
not  have  been  made  competent  against  Sparf,  and  was  obviouslv  com- 
petent against  Hansen.  It  was  not  necessary  that  counsel  should  have 
made  the  objection  on  behalf  of  one  defendant,  and  then  formally  re- 
peated it,  in  the  same  words,  for  the  other  defendant.  If  Sparf  had 
been  tried  alone,  a  general  objection  in  his  behalf,  on  the  ground  of 
incompetency,  would  have  been  sufficiently  definite.  Surely,  such  an 
objection  coming  from  Sparf  when  tried  with  another  ought  not  to  be 
deemed  ineffectual  because  of  the  circumstance  that  his  counsel,  who, 
by  order  of  the  court,  represented  also  his  codefendant,  incautiously 
spoke  in  the  name  of  both  defendants.  Each  was  entitled  to  make  his 
own  defense,  and  the  jur\'  could  have  found  one  of  them  guilty,  and 
acquitted  the  other.  Insurance  Co.  v.  Hillmon,  145  U.  S.  285,  293,  12 
Sup.  Ct.  909.  36  L.  Ed.  706.  See,  also,  Com.  v.  Robinson,  1  Gray 
(Mass.)  555,  560. 

HiNT.Ev.— 33 


514  HEARSAY  (Ch.  3 

For  the  error  of  the  court  in  not  sustaining  the  objection  referred 
to  so  far  as  it  related  to  Sparf,  the  judgment  must  be  reversed  as 
to  him.     *     *     *  ^^ 


WILLIAMS  V.  JUDY. 
(Supreme  Court  of  Illinois,  1846.     3  Gilraan.  2S2,  44  Am.  Dec.  G99.) 

Caton,  J.  This  suit  was  brought  by  Judy  against  Williams,  on  a 
promissory  note  made  by  Williams,  and  payable  to  one  Whiteside, 
and  dated  on  the  13th  of  April,  1839,  for  the  sum  of  two  hundred 
dollars,  and  payable  30  days  from  date,  and  by  Whiteside  assigned  to 
Judy.  The  defendant  filed  pleas  of  the  general  issue,  and  that  the 
consideration  of  said  note  was  for  money  won  at  gaming.  On  the 
trial  of  the  said  cause,  the  defendant  proved  by  one  Reed,  that  he  had 
seen  the  note  in  the  possession  of  Whiteside  in  September,  1839,  after 
the  same  became  due,  and  that  at  that  time  the  note  had  not  been 
assigned.  The  defendant  then  offered  to  prove,  that  at  the  same  time 
Whiteside,  the  payee  of  the  note,  admitted  that  it  was  given  for  money 
won  at  gaming.  Upon  the  objection  of  the  plaintiff's  counsel,  the 
court  held  these  admissions  to  be  incompetent  evidence.  This  decision 
of  the  court  presents  the  only  material  question  for  our  consideration, 
and  is  presented  for  the  first  time  to  this  court  for  its  decision. 

We  find  it  abundantly  settled  by  authority,  and  it  is  well  supported 
by  reason,  that  the  admissions  of  an  assignor  of  a  chose  in  action  may 
be  given  in  evidence  against  the  assignee,  if  the  admissions  were  against 
his  interest  at  the  time,  especially  if  a  cause  of  action  existed  presently, 
when  the  admissions  were  made. 

In  the  case  of  Pocock  v.  Billing,  2  Bing.  269,  Best,  C.  J.,  said: 
"In  order  to  render  these  declarations  receivable,  it  ought  to  have 
been  shown,  that  the  party  making  them  was  the  holder  of  the  bill  at 
the  time.  They  are  admissions,  and  as  such  receivable  only  when  they 
are  supposed  to  be  adverse  to  the  interest  of  the  party."  In  this  case 
subsequently,  at  Nisi  Prius,  these  admissions  of  the  assignor  of  the 
bill  were  admitted  in  evidence  against  the  assignee,  it  having  been 
proved  that  the  admissions  were  made  before  the  assignment.  Ry.  & 
Mood.  127. 

In  Shirley  v.  Todd,  9  Greenl.  (Me.)  83,  it  was  held  that  such  admis- 
sions were  competent  evidence.  Weston,  J.,  in  giving  the  opin- 
ion of  the  court  says:  "We  are  satisfied  that  the  declarations  of  Moses 
Shirley,  the  payee  of  the  order,  while  the  interest  was  in  him,  are  ad- 

88  See,  also.  Kex  v.  Martin,  9  Ont.  L.  R.  218,  2  P..  R.  C.  3:}G  (1905),  anno- 
tated, where  such  evidciuc  was  admitted  with  a  caution  to  tlio  jury,  not  to 
con.sider  it  against  the  other  defendant;  In  this  case  the  former  practice  of 
admitting  oidy  sufh  i)artH  of  the  statement  as  referred  to  the  speaker  is  dis- 
approved as  unfair  to  him. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  515 

missible  in  evidence."  In  that  case  the  admissions  were  made,  as 
in  this,  after  the  maturity  of  the  paper,  and  before  its  transfer. 

We  deem  it  unnecessary  to  refer  to  the  great  multitude  of  cases  on 
this  subject,  especially  as  they  are  principally  all  collected  and  com- 
mented upon  by  Alessrs.  Cowen  &  Hill,  in  their  notes  to  Phillips' 
Evidence,  663-668.  It  may  be  said  that  there  is  but  one  court  whose 
decisions  form  an  exception  to  this  rule,  and  that  is  the  supreme  court 
of  New  York.  Since  the  collection  of  the  cases  on  this  subject  by 
Cowen  &  Hill,  this  question  has  again  been  before  that  court,  in  the 
case  of  Beach  v.  Wise,  1  Hill  (N.  Y.)  612.  There  the  present  chief 
justice  of  that  court,  in  the  decision  of  the  case,  expressed  his  disap- 
probation of  the  rule,  as  formerly  established  by  that  court,  but  finally 
follows  the  former  decisions,  not  feeling  himself  at  liberty  to  overrule 
the  decisions  of  those  who  had  gone  before  him.  He  says :  "As  an 
original  question  I  should  be  unable  to  see  any  settled  distinction  be- 
tween cases  relating  to  real  property,  where  the  declarations  of  the 
former  owner  are  constantly  admitted,  and  those  relating  to  choses 
in  action  and  other  personal  property,  where,  as  we  have  seen,  such 
declarations  are  rejected."  I  confess  myself  unable  to  see  any  distinc- 
tion at  all. 

It  was  objected  by  the  defendant  in  error,  that  there  is  no  aver- 
ment in  the  pleas,  that  the  note  was  assigned  after  it  became  due. 
That  was  unnecessary,  for  by  our  statute,  notes,  etc.,  given  for  money 
won  at  gaming  are  declared  to  be  absolutely  void,  even  in  the  hands 
of  the  assignee ;  hence,  it  was  unnecessary  to  show  that  the  note  was 
received  by  the  assignee  mala  fide.  Besides,  this  is  not  a  question  of 
pleading,  but  of  evidence,  and  the  presence  or  absence  of  such  an  aver- 
ment could  have  no  influence  upon  the  admissibility  of  the  proposed  evi- 
dence. 

The  judgment  of  the  circuit  court  must  be  reversed  with  costs,  and 
the  cause  remanded  for  a  new  trial. 

Judgment  reversed.** 


VROOMAN  v.  KING. 

(Court  of  Appeals  of  New  York,  1867.    36  N.  T.  477.) 

DaviEs,  C.  ].^°  This  is  an  action  of  ejectment ;  and  upon  the  trial 
the  plaintiflf  sought  to  show  title  in  herself  and  out  of  the  defendant, 
by  proving  the  declarations  of  one  Reeves,  a  former  owner  of  the 
land,  and  through  whom  the  defer^dant  claimed  title. 

88  Accord:  Murray  v.  Oliver.  18  Mo.  405  (1853),  admission  by  the  asslgnoi 
of  a  bond  ;  Robb  v.  Schmidt,  35  Mo.  290  (18(>i),  admission  of  payment  by  the 
prior  holder  of  a  past-due  promissory  note. 

Contra:  Paige  v.  Cagwin.  7  Hill  (N.  Y.)  361  (1843),  excluding  the  admission 
of  payment  by  the  prior  holder  of  a  past  due  note. 

90  Part  of  opinion  of  Davies,  C.  J.,  and  opinion  of  Grover,  J.,  omitted. 


516  HEARSAY  (Ch.  3 

Solomon  Higgins,  a  witness  for  tlie  plaintiff,  was  asked,  "While 
Reeves  was  in  possession,  what  did  you  hear  him  say  in  relation  to  the 
title  or  ownership  of  that  land?"  Answer — "I  heard  him  say  he  had 
no  title  to  the  land;  he  had  better  get  a  little  something  for  it  than 
lose  it;  that  the  widow  Kissam  was  coming  to  claim  it.  (The  de- 
fendant's counsel  objected  to  the  evidence,  as  being  what  Reeves  had 
said  after  he  sold  his  possession.  Objection  overruled  for  the  present, 
and  exception  taken.)  I  heard  Reeves  say  to  his  wife  that  he  had 
nothing  but  a  squatter's  title ;  she  was  desiring  to  know  why  he  sold 
it  (same  objection,  ruling  and  exception  as  above);  the  first  conversa- 
tion was  with  a  young  man  who  lived  there ;  the  next  was  when  he 
sold ;  the  old  man  Reeves  had  been  to  Jones,  and  when  he  came  home 
he  said :  'Wife,  I  have  sold  my  pine  land ;'  she  said,  'You  have  been  in 
a  scrape  and  given  old  Jim  Jones  that  land ;'  he  said  he  had  not ;  that 
he  had  sold  it  to  Jones  and  given  him  twenty  years  to  pay  for  it  in ; 
that  the  widow  Kissam  was  coming  to  take  the  land  away  from  him ; 
that  he  could  not  hold  it  if  she  came."  This  evidence  here  objected  to 
by  the  defendant's  counsel,  because  it  was  sayings  of  Reeves  after  the 
sale  of  land  by  him,  and  not  evidence  against  Jones  and  those  claiming 
under  him.  The  objection  was  overruled  for  the  present,  and  to  be 
considered  in  the  charge,  and  the  defendant  excepted.     *     *     * 

Were  the  statements  made  by  Reeves  after  the  sale  by  him  and  while 
in  possession  of  the  premises,  competent  evidence?  The  reason  why 
the  declarations  or  statements  of  a  party  are  ever  admissible  is  that 
they  affect  his  title  or  possession  and  characterize  the  same  while  owner 
or  in  possession,  and  are  consequently  binding  upon  the  party  making 
the  same,  and  his  privies.  But  if  made  by  a  party  not  an  owner  at  the 
time,  upon  what  principle  can  they  be  held  to  affect  his  grantee? 
Thompson,  Ch.  J.,  in  Jackson  v.  Aldrich,  13  Johns.  106.  thought  this 
rule  very  clear,  as  he  says :  "For  it  is  a  proposition  that  cannot  be 
questioned  that  a  grantor  cannot  after  the  execution  of  his  deed  law- 
fully do  any  act  to  prejudice  the  rights  of  his  grantee;  nor  are  decla- 
rations, confessions  or  admissions  of  his  to  be  admitted  against  the 
grantee." 

The  same  principle  was  affirmed  by  the  chancellor  in  Varick  v. 
Briggs,  6  Paige,  323.  The  doctrine  is  very  fully  discussed  by  the 
chancellor  in  Padgett  v.  Lawrence,  10  id.  170,  40  Am.  Dec.  232.  The 
chancellor  says :  "As  a  general  rule,  declarations  made  by  a  person  in 
possession  of  real  estate  as  to  his  interest  or  title  in  the  property  may 
be  given  in  evidence  against  those  who  subsequently  derive  title  under 
him,  in  the  same  manner  as  they  could  have  been  used  against  the  par- 
ty himself  if  he  had  not  parted  with  his  possession  or  interest.  On 
the  other  hand,  it  is  equally  well  settled  that  no  declaration  of  a  for- 
mer owner  of  the  property,  made  after  he  had  parted  with  his  inter- 
est therein,  can  be  received  in  evidence  to  affect  the  legal  or  equital))? 
title  to  the  premises.     *     *     * 


Sec.  2)  RECOGNIZED   EXCEPTIONS  517 

The  declarations  of  Reeves,  while  a  mere  tenant  at  sufferance  of 
Jones,  as  he  certainly  was  after  the  sale  to  him,  could  not  under  any 
circumstances  be  received  as  evidence  against  the  latter,  or  those  claim- 
ing under  him,  to  prejudice  or  impair  his  or  their  title  to  the  premises. 
And  if  it  be  doubtful  whether  the  declarations  were  made  by  the  gran- 
tor before  or  after  he  made  the  sale  and  gave  his  deed,  they  cannot  be 
received  in  evidence.  It  is  incumbent  on  the  party  claiming  to  put  in 
evidence  such  declarations  to  lay  the  proper  foundation  for  their  in- 
troduction. It  therefore  becomes  his  duty  clearly  to  establish  in  the 
first  instance  that  the  declarations  were  made  before  the  execution  of 
the  deed,  and  before  he  parted  with  his  interest  in  the  premises.  1 
Cow.  &  Hill  Notes,  686;  Stockett  v.  Watkins'  Adm'rs,  2  Gill  &  J. 
(Md.)  326,  343,  344,  20  Am.  Dec.  438. 

It  is  very  clear  that  in  this  case  the  whole  statement  of  Reeves  must 
be  taken  as  an  entirety.  ^^  And  by  one  portion  of  it  it  distinctly 
appears  that  previous  to  the  making  thereof  he  had  sold  the  premises 
to  Jones.  This  fact  thus  appearing,  the  residue  of  the  declaration  in 
relation  to  his  title  was  inadmissible,  and  should  not  have  been  received. 
And  as  it  already  had  been,  notwithstanding  the  defendant's  objection, 
it  should  have  been  stricken  out  on  his  motion  and  wholly  withdrawn 
from  the  consideration  of  the  jury.  For  this  error  a  new  trial  must 
be  granted.     *     *     * 

Judgment  reversed. 

81  By  the  court  in  Rex  v.  Paine,  5  Modem,  163  (1696):  "As  to  the  first 
point,  there  was  no  proof  that  he  was  the  composer  of  it.  or  that  he  wrote 
it,  but  by  his  own  confession  before  the  mayor.  Now  if  such  confession  shall 
be  taken  as  evidence  to  convict  him,  it  is  but  justice  and  reason,  and  so  al- 
lowed in  the  civil  law,  that  his  whole  confession  shall  be  evidence  as  well  for 
as  against  him,  and  then  there  will  be  no  proof  of  a  malicious  and  seditious 
publication  of  this  paper ;  for  he  confessed  that  it  was  delivered  by  mistake." 
And  so  in  Randle  v.  Blackburn,  5  Taunt.  245  (1813). 

Best,  C.  J.,  in  Smith  v.  Blandy,  R.  &  M.  257  (1825):  "I  agree  with  the 
case  just  stated,  which  seems  perfectly  consistent  with  the  account  given  of 
Remmie  v.  Hall.  The  whole  of  what  a  party  says  at  the  same  time  must 
be  given  in  evidence  and  what  he  says  in  his  favor  must  not  be  taken  as  true, 
but  must  be  left,  under  all  the  circumstances,  for  the  jury  to  say  whether 
they  believe  it  or  not.  I  think  this  paper  must  be  left  to  the  jury  without 
further  proof." 

But  the  party  against  whom  the  admission  is  used  is  not  entitled  to  prove 
distinct  assertions  in  his  own  favor,  not  limiting  or  qualifying  the  admis- 
sion, though  made  in  the  course  of  the  same  conversation.  Prince  v.  Samo, 
7  Ad.  &  El.  627  (1838),  disapproving  the  dictum  to  the  contrary  by  Lord 
Tenterden  in  the  Queen's  Case,  2  Br.  &  Bing.  297  (1820). 


51S  HEARSAY  (Ch.  3 

HUGHES  V.  DELAWARE  &  H.  CANAL  CO. 

(Supreme  Court  of  Pemisylvania,  1896.     176  Pa.  254,  35  Atl.  190.) 

This  was  an  action  of  trespass  for  the  death  of  plaintiff's  husband 
who  had  been  struck  and  injured  at  a  railroad  crossing  by  a  locomotive 
operated  by  the  defendant. 

When  Martin  Crippen,  a  witness  for  defendant,  was  on  the  stand, 
defendant  offered  to  prove  by  him  that  on  September  10,  1890,  he  call- 
ed upon  William  J.  Hughes,  plaintiff's  husband,  at  the  hospital ;  that 
Mr.  Hughes  there  made  a  statement  to  him  which  he  put  down  in  a 
small  memorandum  book ;  that  he  dictated  this  statement  to  W.  H. 
Jessup,  Jr.,  who  reduced  it  to  writing,  and  the  witness  thereupon  took 
it  back  to  the  hospital  and  read  it  to  Mr.  Hughes,  who  thereupon 
stated  that  it  was  correct  and  signed  it  in  his  presence;  which  state- 
ment is  as  follows: 

"Scranton,  Sept.  10,  1890. 

"I,  William  J.  Hughes  was  driving  down  Carbon  street,  in  a  wester- 
ly direction,  on  Sept.  3,  1890,  about  6:45  o'clock  in  the  evening  in  an 
open  one-horse  buggy.  David  Y.  Jones  was  in  the  buggy  with  me. 
I  was  driving  and  we  drove  upon  the  Carbon  street  crossing.  We 
were  struck  by  a  locomotive  and  both  thrown  out.  The  horse  was 
killed  and  the  buggy  broken  to  pieces.  We  were  driving  along  very 
easy  and  did  not  stop  before  we  were  struck,  and  we  did  not  know 
there  was  any  train  coming,  [Signed]         William  J,  Hughes. 

"Witness :  L  L.  Sutto. 
"U.  G.  Bull." 

This  was  oft'ered  for  the  purpose  of  showing  the  declaration  of 
William  J.  Hughes,  the  decedent,  for  the  injuries  to  whom,  resulting 
in  his  death,  this  suit  was  brought,  and  to  substantiate  the  proposi- 
tion that  decedent  was  guilty  of  contributory  negligence,  and  that 
therefore  the  plaintiff  cannot  recover.  The  offer  was  objected  to 
by  counsel  for  plaintiff  as  incompetent.  The  court  overruled  the  of- 
fer, saying,  "We  think  this  offer  is  incompetent.  We  do  not  under- 
stand that  the  present  plaintiff  is  the  successor  in  interest  of  the 
decedent.  The  action  is  an  independent  action  given  by  the  statute 
to  the  widow,  and,  therefore,  we  think  it  is  not  the  admissions  of  a 
party,  and  that  it  is  a  mere  declaration,  not  made  under  the  sanction 
of  an  oath,  and  therefore  incompetent." 

Exception  noted  for  defendant,  at  whose  request  a  bill  was  sealed. 

The  defendant's  seventh  point  that  upon  the  whole  evidence  the 
decedent  was  guilty  of  contributory  negligence  and  the  plaintiff'  was 
not  entitled  to  recover,  was  reserved,  and  motion  for  judgment  there- 
on for  defendant  non  obstante  veredicto  was  afterwards  overruled. 

Verdict  for  plaintiff  for  $9,499.50.     The  defendant  appealed.' 

02  Statement  condene.sed  and  part  of  opinion  omitted. 


02 


Sec.  2)  RECOGNIZED   EXCEPTIONS  519 

Mitchell,  j.  *  ♦  *  por  the  same  reason  it  was  also  error  to 
exclude  the  statement  by  Hughes,  the  plaintiff's  husband.  It  should 
have  gone  to  tlie  jury,  in  connection  with  the  circumstances  under 
which  it  was  made.  This  was  excluded,  also,  on  the  ground  that  it 
was  not  made  by  a  party  to  the  suit,  and  was  not,  therefore,  ad- 
missible against  the  plaintiff.  This,  however,  is  no  more  tenable  than 
the  other.  At  the  time  his  statement  was  made,  the  only  right  of  ac- 
tion there  was  at  all  was  in  Hughes.  Plaintiff  had  no  claim  until  he 
died,  and  then  the  foundation  of  her  claim  was  the  injury  to  him,  for 
which  he  might  have  sued  in  his  lifetime.  If  the  defendant  would  not 
have  been  liable  to  him  in  the  first  instance,  it  was  not  made  liable  to 
her  by  his  death.  We  are  not  aware  of  any  case,  and  certainly  our 
attention  has  not  been  called  to  any,  in  which  a  widow  has  recovered 
for  injuries  to  her  husband,  where  he  could  not  have  done  so  him- 
self if  he  had  survived;  and  on  principle,  it  is  perfectly  clear  that 
she  never  can  do  so,  for  the  original  right  of  action  is  in  him,  and 
hers  is  but  in  succession  or  substitution  for  his,  wdiere  he  has  not 
asserted  it  himself.  If  he  has  done  so,  his  action  survives;  if  he 
has  not,  then  by  virtue  of  the  statute  she  brings  hers,  in  its  place,  but 
for  the  same  cause.  Birch  v.  Railroad  Co.,  165  Pa.  339,  30  Atl.  826. 
In  this  connection  appellee  cites  the  remarks  in  Bradford  City  v. 
Downs,  126  Pa.  622,  17  Atl.  884,^^  as  to  the  declarations  of  an  infant, 
who  was  injured,  not  being  admissible  against  the  father,  in  an  action 
for  loss  of  services,  unless  they  were  part  of  the  res  gestje.  The 
cases  might  easily  be  distinguished,on  the  ground  that  the  father's 
action  in  his  own  right,  and  not  derived  through  the  infant.  A  much 
closer  analogy  may  be  found  in  the  declarations  of  a  predecessor  in 
title  while  in  possession,  which  have  always  been  held  admissible. 
Weidman  v.  Kohr,  4  Serg.  &  R.  174.  But  the  point  in  Bradford  City 
v.  Downs  was  comparatively  unimportant,  and  in  Ogden  v.  Railroad 
Co.  (Pa.)  16  Atl.  353,  the  court  distinctly  declined  to  include  it  in  the 
affirmance  of  the  judgment.  We  entertain  so  strong  a  doubt  of  its 
soundness  that  we  should  be  unwilling  to  extend  the  rule  to  the  pres- 
ent case,  even  if  the  analogy  were  closer  than  it  is. 

It  is  not  worth  while  to  discuss  the  minor  assignments  of  error, 
or  the  evidence  relative  to  the  place  where  the  deceased  stopped  to 
look  and  listen,  because,  on  the  whole  case,  his  contributory  negli- 
gence was  so  unquestionable  that  the  court  should  have  pronounced 
upon  it  as  a  matter  of  law.    *    *    * 

Judgment  reversed. 

93  See  to  the  same  effect,  Farber  v.  Missouri  Pae.  Ey.  Co.,  139  Mo.  272,  40 
S.  W.  932   (1897). 


520  HEARSAY  (Ch.  n 

FAIRLIE  V.  HASTINGS. 
(Court  of  Chancery,  1S04.     10  Ves.  123.) 

The  Master  of  the  Rolls.®*  The  subject  of  this  cause  is  a  loan 
of  money  by  the  late  Plaintiff  Maha  Rajah  Nobkissen  to  the  Defend- 
ant. As  it  is  not  by  bill  in  Equity  that  money  lent  is  to  be  recovered, 
it  is  incumbent  upon  the  Plaintiff  to  state,  and  to  prove,  some  ground 
for  coming  into  this  Court  for  the  payment,  or  the  means  of  obtaining 
payment  of  his  demand.  The  question  of  jurisdiction  must  depend 
upon  the  allegations  of  the  bill ;  which  states,  that  the  Defendant 
applied  to  the  Plaintiff  for  the  loan  of  three  lacks  of  rupees  upon  the 
security  of  the  Defendant's  bond ;  that  the  Plaintiff  agreed  to  advance 
that  sum  by  instalments;  that  a  bond  was  executed;  which  it  was 
agreed  should  remain  with  Caunto  Baboo,  an  agent  of  the  Defendant, 
until  the  whole  money  should  be  advanced,  and  then  should  be  delivered 
to  the  Plaintiff;  that  the  money  was  advanced,  but  the  Plaintiff  never 
received  the  bond ;  Caunto  Baboo  in  answer  to  his  repeated  applications 
at  length  informing  him  that  it  had  been  delivered  up  to  the  Defend- 
ant. 

In  support  of  this  statement  the  Plaintiff  has  not  read,  and  could 
not  read,  any  part  of  the  answer.  But  the  Plaintiff  has  gone  into  evi- 
dence of  declarations  by  Gobindee  Baboo  and  Caunto  Baboo ;  and  the 
question  is,  whether  these  declarations  can  amount  to  proof  of  such 
facts  as  are  alleged  by  the  bill. 

Upon  that  question  my  opinion  is,  that  these  declarations  do  not 
come  within  the  principle  upon  which  they  are  supposed  to  be  admis- 
sible.    As  a  general  proposition,  what  one  man  says,  not  upon  oath, 
cannot  be  evidence  against  another  man.     The  exception  must  arise 
out  of  some  peculiarity  of  situation,  coupled  with  the  declarations  made 
by  one.    An  agent  may  undoubtedly,  within  the  scope  of  his  authority, 
.bind  his  principal  by  his  agreement;    and  in  many  cases  by  his  acts. 
[What  the  agent  has  said  may  be  what  constitutes  the  agreement  of 
the  principal;    or  the  representations  or  statements  made  may  be  the 
foundation  of,  or  the  inducement  to,  the  agreement.     Therefore,  if 
writing  is  not  necessary  by  law,  evidence  must  be  admitted,  to  prove  the 
agent  did  make  that  statement  or  representation.     So,  with  regard  to 
acts  done,  the  words  with  which  those  acts  are  accompanied  frequently 
tend  to  determine  their  quality.     The  party,  therefore,  to  be  bound 
by  the  act,  must  be  affected  by  the  words.    But,  except  in  one  or  the 
other  of  those  ways,  I  do  not  know,  how  what  is  said  by  an  agent  can 
[be  evidence  against  his  principal.    The  mere  assertion  of  a  fact  cannot 
amount  to  proof  of  it;   though  it  may  have  some  relation  to  the  busi- 
ness, in  which  the  person  making  that  assertion  was  employed  as  agent. 
.For  instance,  if  it  was  a  material  fact,  that  there  was  the  bond  of  the 

»*  Statement  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  521 

Defendant  in  the  hands  of  Caunto  Baboo,  that  fact  would  not  be  proved 
by  the  assertion,  that  Gobindee  Baboo,  supposing  him  an  agent,  had  said 
there  was ;  for  that  is  no  fact,  that  is,  no  part  of  any  agreement  which 
Gobindee  Baboo  is  making,  or  of  any  statement  he  is  making,  as  in- 
ducement to  an  agreement.  It  is  mere  narration:  communication  to 
the  witness  in  the  course  of  conversation ;  and  therefore  could  not  be 
evidence  of  the  existence  of  the  fact. 

The  admission  of  an  agent  cannot  be  assimilated  to  the  admission 
of  the  principal.  A  party  is  bound  by  his  own  admission ;  and  is  not 
permitted  to  contradict  it.*'  But  it  is  impossible  to  say,  a  man  is  pre- 
cluded from  questioning  or  contradicting  any  thing  any  person  has  as- 
serted as  to  him,  as  to  his  conduct  or  his  agreement,  merely  because 
that  person  has  been  an  agent  of  his.  If  any  fact,  material  to  the  in-^ 
terest  of  either  party,  rests  in  the  knowledge  of  an  agent,  it  is  to  be 
proved  by  his  testimony,  not  by  his  mere  assertion.  Lord  Kenyon 
carried  this  so  far  as  to  refuse  to  permit  a  letter  by  an  agent  to  be 
read  to  prove  an  agreement  by  the  principal;  holding,  that  the  agent 
himself  must  be  examined;  Maesters  v.  Abram,  1  Esp.  N.  P.  Cas. 
375.  If  the  agreement  was  contained  in  the  letter,  I  should  have  thought 
it  sufficient  to  have  proved  that  letter  was  written  by  the  agent:  but, 
if  the  letter  was  offered  as  proof  of  the  contents  of  a  pre-existing  agree- 
ment, then  it  was  properly  rejected.  This  doctrine  was  discussed 
incidentally  in  Bauerman  v.  Radenius,  7  Term  Rep.  663 ;  and  in  that 
case  there  is  a  reference  to  another.  Biggs  v.  Lawrence,  3  Term  Rep. 
454,  in  which  Mr.  Justice  Buller  held,  that  a  receipt  given  by  an  agent 
for  goods,  directed  to  be  delivered  to  him,  might  be  read  in  evidence 
against  the  principal.  The  Counsel  in  Bauerman  v.  Radenius  state, 
that  the  contrary  had  been  frequently  since  held  by  Lord  Kenyon  at 
Nisi  Prius,  without  its  having  ever  been  questioned.  That  statement 
does  not  appear  to  have  been  denied  upon  the  other  side ;  and  seems 
to  have  been  acquiesced  in  by  Lord  Kenyon ;  who  said,  "that  was  not 
the  point,  upon  which  the  case  was  argued  or  determined;"  meaning 
the  point,  that  such  a  receipt  could  be  admitted  in  evidence. 

It  will  be  found,  however,  that  this  question  can  hardly  be  said  to 
arise  in  this  case ;  when  it  is  considered,  what  the  concern  of  Caunto 
Baboo  in  this  transaction  was,  and  what  are  the  facts,  in  proof  of 
which  his  declaration  was  offered.  Caunto  Baboo  is  stated  to  have 
been  in  the  employment  of  the  Defendant.  One  of  the  witnesses  says,  \ 
he  had  the  general  management  of  his  pecuniary  concerns.  But  of 
this  particular  transaction  he  does  not  appear,  either  by  the  bill  or  the 
witness,  to  have  had  the  management.  Upon  the  whole  of  the  state-  > 
ment  and  evidence  it  does  not  appear,  that  Caunto  Baboo  was  con- 
cerned in  the  negotiation  of  the  loan;    that  he  was  employed  as  the  I 

9s  The  early  notion,  that  a  party  was  bound  by  an  admission,  so  that  he 

could  not  contradict  or  explain  it,  has  lonp  since  been  exploded.     Ridgwav  v. 

Philip.  1  C.  M.  &  R.  415  (1S34);   Heane  v.  Rogers,  9  B.  &  C.  577  (1S29) ;   Anvil 

Mining  Co.  v.  Humble,  153  U.  S.  540,  14  Sup.  Ct  876,  38  L.  Ed.  814  (1894). 


522  HEARSAY  (Ch.  3 

agent  for  this  purpose.  The  statement  of  the  bill  represents  the  De- 
fendant himself  to  have  made  the  agreement:  therefore  any  repre- 
sentation of  Caunto  Baboo  relative  to  an  agreement,  not  stated  to  have 
[been  made  by  him,  would  not  be  the  statement  of  an  agent:  supposing, 
such  statement  was  to  be  admitted  in  evidence.  The  Plaintiff  fails 
first  in  showing  Caunto  Baboo  was  the  agent  of  the  Defendant.  In 
this  case,  such  a  fact  as  Counto  Baboo  is  represented  to  have  stated, 
is  matter,  not  of  admission,  but  of  testimony.  A  man  cannot  admit 
what  another  has  done,  or  has  agreed  to  .do :  but  he  must  prove  it. 
When  put  upon  the  proof,  that  the  Defendant  made  the  agreement, 
it  is  absurd  to  say,  Caunto  Baboo  admitted,  he  made  it.  In  truth  he 
does  not  admit,  that  the  Defendant  made  it.  But,  suppose  Caunto 
Baboo  distinctly  proved  the  agent  of  the  Defendant,  and  that  he  said, 
he  knew,  the  Defendant  did  make  the  agreement  for  this  loan,  and 
did  promise  and  undertake  to  give  a  bond  for  the  money,  and  did  ex- 
ecute a  bond,  but  gave  the  bond,  not  to  the  Plaintiff,  but  to  the  wit- 
ness, and  he  gave  it  back  to  the  Defendant,  who  undertook  to  calculate 
the  interest,  and  to  give  a  bond  for  the  whole :  all  this  would  be  no  evi- 
dence whatsoever  of  what  the  Defendant  had  agreed  to  do,  or  had 
done,  or  omitted  to  do;  and  without  evidence  of  his  agreement,  or 
his  acts,  or  his  breach  of  agreement,  it  is  utterly  impossible  to  support 
this  bill. 

Bill  dismissed. 


WOOD  et  al.  v.  BRADDICK. 
(Court  of  Common  Pleas,  1S08.     1  Tannt.  104.) 

This  was  an  action  brought  to  recover  from  the  Defendant  the  pro- 
ceeds of  certain  linens,  which  the  bankrupts,  in  the  year  1796,  had 
consigned  for  sale  in  America,  as  the  Plaintiffs  alleged  to  the  De- 
fendant jointly  with  one  Cox,  who  was  then  his  partner,  but,  as  the 
Defendant  contended,  to  Cox  only.  The  Defendant  pleaded  the  gen- 
eral issue,  and  the  statute  of  limitations :  at  the  trial  at  Guildhall,  be- 
fore Mansfield,  C.  J.,  the  Plaintiffs  produced  in  evidence  a  letter  from 
Cox,  dated  the  24th  of  June,  1804,  stating  a  balance  of  £919.  to  be 
then  due  to  the  bankrupts  upon  this  consignment. 

It  was  in  proof  that  on  the  30th  of  July,  1802,  Braddick  and  Cox 
dissolved  their  partnership,  as  from  the  17th  of  November,  1800. 

Cockell  and  Lens,  Serjts.,  objected,  that  this  letter  being  written 
after  the  dissolution  of  the  partnership,  was  not  admissible  evidence 
to  charge  Braddick.  The  Chief  Justice  overruled  the  objection,  but 
reserved  the  point:  and  the  jury  being  of  opinion  that  the  agency 
was  undertaken  by  Cox  on  the  partnership  account,  found  a  verdict 
for  the  Plaintiff. 

Cockell,  Srrjt.,  now  moved  for  a  new  trial.  He  cited  a  case  of 
Petherick  v.  Turner  and  Another,  tried  in  Mich,  term,  42  Geo.  3,  before 


Sec.  2)  RECOGNIZED   EXCEPTIONS  523 

Lord  Alvanley,  C.  J.  "Assumpsit  for  wages  against  two  Defendants, 
who  had  been  partners.  One  of  them  suffered  judgment  to  go  by  de- 
fault :  the  other  pleaded  non  assumpsit.  At  the  trial  the  Plaintiff  pro- 
posed to  read  in  evidence  the  answer,  which  the  first  mentioned  De- 
fendant had  put  in  to  a  bill  in  the  Exchequer,  filed  after  the  dissolu- 
tion of  the  partnership  against  the  same  parties :  the  bill  charged 
collusion,  and  also  charged  that  the  debt  for  which  this  action  was 
brought,  had  not  been  paid ;  the  answer  denied  the  collusion,  but  ad- 
mitted the  money  had  not  been  paid.  Lord  Alvanley,  C.  J.,  held  that 
it  would  have  been  good  evidence  against  the  Defendant  who  put  in 
the  answer,  but  that  being  made  after  the  dissolution  of  the  partner- 
ship, it  could  not  be  received  as  evidence  against  the  other  Defendant, 
and  rejected  it."  Cockell,  Serjt.,  inferred  from  this  case,  that  the  evi- 
dence given  by  a  partner  after  the  partnership  had  ceased,  is  not  ad- 
missible for  the  purpose  of  proving  the  joint  undertaking  of  himself 
and  his  former  partner,  even  though  the  former  existence  of  their 
partnership  is  established  by  other  proof. 

Mansfield,  C.  J.  Clearly  the  admission  of  one  partner,  made  after 
the  partnership  has  ceased,  is  not  evidence  to  charge  the  other,  in  any 
transaction  which  has  occurred  since  their  separation :  but  the  power 
of  partners  with  respect  to  rights  created  pending  the  partnership, 
remains  after  the  dissolution.  Since  it  is  clear  that  one  partner  can 
bind  the  other  during  all  the  partnership,  upon  what  principle  is  it, 
that  from  the  moment  when  it  is  dissolved,  his  account  of  their  joint 
contracts  should  cease  to  be  evidence?  and  that  those  who  are  to-day  as 
one  person  in  interest,  should  tomorrow  become  entirely  distinct  in 
interest  with  regard  to  past  transactions  which  occurred  while  they 
were  so  united? 

Heath,  J.  Is  it  not  a  very  clear  proposition,  that  when  a  partner- 
ship is  dissolved,  it  is  not  dissolved  with  regard  to  things  past,  but 
only  with  regard  to  things  future?  With  regard  to  things  past,  the 
partnership  continues,  and  always  must  continue. 

Cockell  took  nothing  by  his  motion. 


UNITED  STATES  v.  GOODING. 
(Supreme  Court  of  the  United  States,  1S27.     12  Wheat.  460,  6  L.  Ed.  693.) 

Story,  J.®°  This  is  the  case  of  an  indictment  against  Gooding  for 
being  engaged  in  the  slave-trade,  contrary  to  the  prohibitions  of  the 
act  of  Congress  of  the  20th  of  April,  1818.  It  comes  before  us  upon  a 
certificate  of  division  of  opinions  in  the  circuit  court  of  the  district  of 
Maryland,  upon  certain  points  raised  at  the  trial.  We  take  this  op- 
portunity of  expressing  our  anxiety,  lest,  by  too  great  indulgence  to  the 

50  Statement  and  part  of  opinion  omitted. 


524  HEARSAY  (Ch.  3 

wishes  of  counsel,  questions  of  this  sort  should  be  frequently  brought 
before  this  court,  and  thus,  in  effect,  an  appeal  in  criminal  cases  become 
an  ordinary  proceeding,  to  the  manifest  obstruction  of  public  justice, 
and  against  the  plain  intendment  of  the  acts  of  Congress.  Cases  of  real 
doubt  and  difficulty,  or  of  extensive  consequence  as  to  principle  and 
application,  and  furnishing  matter  for  very  grave  deliberation,  are 
those  alone  which  can  be  reasonably  presumed  to  have  been  within  the 
purview  of  the  legislature  in  allowing  an  appeal  to  tliis  court  upon 
certificates  of  division.  In  this  very  case  some  of  the  questions  certified 
may  have  been  argued  and  decided  in  the  court  below  upon  the  mo- 
tion to  quash  the  indictment ;  and  there  are  others  upon  which  it  is 
understood  that  the  circuit  court  had  no  opportunity  of  passing  a  de- 
liberate judgment. 

The  first  question  that  arises  is  upon  the  division  of  opinions  wheth- 
er, under  the  circumstances  of  the  case,  the  testimony  of  Captain  Coit, 
to  the  facts  stated  in  the  record,  was  admissible.  That  testimony  was 
to  the  following  effect:  That  he.  Captain  Coit,  was  at  St.  Thomas 
while  the  General  Winder  was  at  that  island,  in  September,  1824,  and 
was  frequently  on  board  the  vessel  at  that  time ;  that  Captain  Hill,  the 
master  of  the  vessel,  then  and  there  proposed  to  the  witness  to  engage 
on  board  the  General  Winder  as  mate  for  the  voyage  then  in  progress, 
and  described  the  same  to  be  a  voyage  to  the  coast  of  Africa,  for  slaves, 
and  thence  back  to  Trinidad  de  Cuba ;  that  he  offered  to  the  witness  70 
dollars  per  month,  and  five  dollars  per  head  for  every  prime  slave 
which  should  be  brought  to  Cuba;  that  on  the  witness  inquiring  who 
would  see  the  crew  paid  in  the  event  of  a  disaster  attending  the  voyage. 
Captain  Hill  replied,  "Uncle  John,"  meaning,  (as  the  witness  under- 
stood,) John  Gooding,  the  defendant. 

It  is  to  be  observed  that,  as  preliminary  to  the  admission  of  this  tes- 
timony, evidence  had  been  offered  to  prove  that  Gooding  was  owner 
of  the  vessel ;  that  he  lived  at  Baltimore,  where  she  was  fitted  out ;  and 
that  he  appointed  Hill  master,  and  gave  him  authority  to  make  the  fit- 
ments for  the  voyage,  and  paid  the  bills  therefor;  that  certain  equip- 
ments were  put  on  board  peculiarly  adapted  for  the  slave-trade ;  and 
that  Gooding  had  made  declarations  that  the  vessel  had  been  engaged  in 
the  slave-trade,  and  had  made  him  a  good  voyage.  The  foundation  of 
the  authority  of  the  master,  the  nature  of  the  fitments,  and  the  object 
and  accomplishment  of  the  voyage,  being  thus  laid,  the  testimony  of 
Captain  Coit  was  offered  as  confirmatory  of  the  proof,  and  properly  ad- 
missible against  the  defendant.  It  was  objected  to,  and  now  stands 
upon  the  objection  before  us.  The  argument  is,  that  the  testimony  is 
not  admissible,  because,  in  criminal  cases,  the  declarations  of  the  mas- 
ter of  the  vessel  are  not  evidence  to  charge  the  owner  with  an  offence ; 
and  that  the  doctrine  of  the  binding  effect  of  such  declarations  by 
known  agents,  is,  and  ought  to  be,  confined  to  civil  cases.  We  can- 
not yield  to  the  force  of  the  argument.  In  general,  the  rules  of  evi- 
dence in  criminal  and  civil  cases  are  the  same.     Whatever  the  agent 


Sec.  2)  RECOGNIZED   EXCEPTIONS  525 

does,  within  the  scope  of  his  authority,  binds  his  principal,  and  is  deem- 
ed his  act.  It  must,  indeed,  be  shown  that  the  agent  has  the  authority, 
and  that  the  act  is  within  its  scope ;  but  these  being  conceded  or  proved, 
either  by  the  course  of  business  or  by  express  authorization,  the  same 
conchision  arises,  in  point  of  law,  in  both  cases.  Nor  is  there  any  au- 
thority for  confining  the  rule  to  civil  cases.  On  the  contrary,  it  is 
the  known  and  familiar  principle  of  criminal  jurisprudence,  that  he 
who  commands  or  procures  a  crime  to  be  done,  if  it  is  done,  is  guilty 
of  the  crime,  and  the  act  is  his  act.  This  is  so  true,  that  even  the  agent 
may  be  innocent,  when  the  procurer  or  principal  may  be  convicted  of 
guilt,  as  in  the  case  of  infants  or  idiots  employed  to  administer  poison. 
The  proof  of  the  command  or  procurement  may  be  direct  or  indirect, 
positive  or  circumstantial ;  but  this  is  matter  for  the  consideration  of 
the  jury,  and  not  of  legal  competency.  So,  in  cases  of  conspiracy  and 
riot,  when  once  the  conspiracy  or  combination  is  estabUshed,  the  act 
of  one  conspirator,  in  the  prosecution  of  the  enterprise,  is  considered 
the  act  of  all,  and  is  evidence  against  all.  Each  is  deemed  to  consent 
to  or  command  what  is  done  by  any  other  in  furtherance  of  the  com- 
mon object.  Upon  the  facts  of  the  present  case,  the  master  was  just 
as  much  a  guilty  principal  as  the  owner,  and  just  as  much  within  the 
purview  of  the  act  by  the  illegal  fitment. 

The  evidence  here  offered  was  not  the  mere  declarations  of  the 
master  upon  other  occasions  totally  disconnected  with  the  objects  of 
the  voyage.  These  declarations  were  connected  with  acts  in  further- 
ance of  the  objects  of  the  voyage,  and  within  the  general  scope  of  his 
authority  as  conductor  of  the  enterprise.  He  had  an  implied  authority 
to  hire  a  crew,  and  do  other  acts  necessary  for  the  voyage.  The  tes- 
timony went  to  establish  that  he  endeavored  to  engage  Captain  Coit  to 
go  as  mate  for  the  voyage  then  in  progress,  and  his  declarations  were 
all  made  with  reference  to  that  object,  and  as  persuasives  to  the  under- 
taking. They  were,  therefore,  in  the  strictest  sense,  a  part  of  the  res 
gestae,  the  necessary  explanations  attending  the  attempt  to  hire.  If 
he  had  hired  a  mate,  the  terms  of  the  hiring,  though  verbal,  would  have 
been  part  of  the  act,  and  the  nature  of  the  voyage,  as  explained  at  the 
time,  a  necessar}^  ingredient.  The  act  would  have  been  so  combined 
with  the  declarations,  as  to  be  inseparable  without  injustice.  The 
same  authority  from  the  owner  which  allows  the  master  to  hire  the 
crew,  justifies  him  in  making  such  declarations  and  explanations  as  are 
proper  to  attain  the  object.  Those  declarations  and  explanations  are 
as  much  within  the  scope  of  the  authority  as  the  act  of  hiring  itself. 
Our  opinion  of  the  admissibility  of  this  evidence  proceeds  upon  tlie 
ground  that  these  were  not  the  naked  declarations  of  the  master,  un- 
accompanied with  his  acts  in  that  capacity,  but  declarations  coupled 
with  proceedings  for  the  objects  of  the  voyage,  and  while  it  was  in  prog- 
ress. We  give  no  opinion  upon  the  point  whether  mere  declarations, 
under  other  circumstances,  would  have  been  admissible.  The  principle 
which  we  maintain  is  stated  with  great  clearness  by  Mr.  Starkie,  in  his 


526  HEARSAY  (Ch.  3 

Treatise  on  Evidence,  2  Stark.  Evid.  pt.  4,  p.  60.  "Where,"  says  he, 
"the  fact  of  agency  has  been  proved,  either  expressly  or  presumptively, 
the  act  of  the  agent,  coextensive  with  the  authority,  is  the  act  of  the 
principal,  whose  mere  instrument  he  is;  and  then,  whatever  the 
agent  says  within  the  scope  of  his  authority,  the  principal  says,  and 
evidence  may  be  given  of  such  acts  and  declarations  as  if  they  had  been 
actually  done  and  made  by  the  principal  himself."  *  *  * 
Opinion  certified  to  the  Circuit  Court. 


GARTH  V.  HOWARD  &  FLEMING. 

(Court  of  Common  Pleas,  1832.     8  Bing.  451.) 

Detinue  for  plate.  Plea,  general  issue.  At  the  trial  before  Tindal, 
C.  J.,  it  appeared  that  Howard  had,  without  authority,  pawned,  for 
£200.,  certain  plate  belonging  to  the  plaintiff.  The  defendant,  Fleming, 
was  a  pawnbroker ;  but  the  only  evidence  to  show  that  the  plate  had 
ever  been  in  his  possession,  was  a  witness,  who  stated  that,  at  the  house 
of  the  plaintiff's  attorney,  he  heard  Fleming's  shopman  say  that  it  was 
a  hard  case,  for  his  master  had  advanced  all  the  money  on  the  plate 
at  5  per  cent. 

This  evidence  being  objected  to,  was  received,  subject  to  a  motion 
to  this  Court ;  and  a  verdict  having  been  given  for  the  plaintiff. 

Andrews,  Serjt,,  obtained  a  rule  nisi  for  a  new  trial. ^^ 

TiXDAL,  C.  J.  The  rule  in  this  case  has  been  obtained  upon  two 
distinct  grounds;  but  it  is  unnecessary  to  give  an  opinion  upon  any 
other  than  this,  namely,  whether  the  declaration  of  the  shopman  of  the 
defendant  Fleming,  that  the  goods  were  in  the  possession  of  his  master, 
was  admissible :  for  it  is  clear  that,  unless  Fleming  is  to  be  affected  by 
such  declaration,  he  is  entitled  to  the  verdict  upon  the  general  issue, 
non  detinet.  If  the  transaction  out  of  which  this  suit  arises  had  been 
one  in  the  ordinary  trade  or  business  of  the  defendant  as  a  pawnbrok- 
er, in  which  trade  the  .shopman  was  agent  or  servant  to  the  defendant, 
a  declaration  of  such  agent  that  his  master  had  received  the  goods, 
might  probably  have  been  evidence  against  the  master,  as  it  might  be 
held  within  the  scope  of  such  agent's  authority  to  give  an  answer  to 
such  an  inquiry  made  by  any  person  interested  in  the  goods  deposited 
witli  the  pawnbroker.  In  'hat  case,  the  rule  laid  down  by  the  Master  of 
the  Rolls  in  the  case  of  Fairlie  v.  Hastings,  10  Ves.  128,  which  may  be 
regarded  as  the  leading  case  on  this  head  of  evidence,  directly  applies. 
But  the  transaction  with  Fleming  appears  to  us,  not  a  transaction  in 
his  business  as  a  pawnbroker,  but  was  a  loan  by  him  as  by  any  other 
lender  of  money  at  5  per  cent.  And  there  is  no  evidence  to  show  the 
agency  of  the  shopman  in  private  transactions  unconnected  with  the 
business  of  the  shop.    I  doubted  much  at  the  time  whether  it  could  be 

»7  Statement  condeused. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  527 

received,  and  intimated  such  doubt  by  reserving  the  point ;  and  now, 
upon  consideration  with  the  Court,  am  satisfied  that  it  is  not  admissible. 
It  is  dangerous  to  open  the  door  to  declarations  of  agents,  beyond  what 
the  cases  have  already  done.  The  declaration  itself  is  evidence  against 
the  principal,  not  given  upon  oath :  it  is  made  in  his  absence,  when  he 
has  no  opportunity  to  set  it  aside,  if  incorrectly  made,  by  any  observa- 
tion, or  any  question  put  to  the  agent;  and  it  is  brought  before  the 
Court  and  jury  frequently  after  a  long  interval  of  time.  It  is  liable, 
therefore,  to  suspicion  originally,  from  carelessness  or  misapprehension 
in  the  original  hearer ;  and  again  to  further  suspicion,  from  the  faith- 
lessness of  memory  in  the  reporter  and  the  facility  with  which  he  may 
give  an  untrue  account.  Evidence,  therefore,  of  such  a  nature,  ought 
always  to  be  kept  within  the  strictest  limits  to  which  the  cases  have 
confined  it;  and  as  that  which  was  admitted  in  this  case  appears  to 
us  to  exceed  those  limits,  we  think  there  ought  to  be  a  new  trial. 
Rule  absolute. 


HANEY  V.  DONNELLY. 
(Supreme  Judicial  Court  of  Massacliusetts,  1S59.     12  Gray,  361.) 

Action  of  tort  by  an  infant,  by  his  father  and  next  friend,  against 
the  defendant,  for  breaking  the  plaintiff's  leg  on  the  2d  of  Julv,  1855. 
Writ  dated  May  16,  1856. 

At  the  trial  in  the  superior  court  of  Suffolk  at  March  term,  1857, 
before  Nash,  J.,  it  appeared  that  the  plaintiff  lived  with  his  father. 
The  defendant  offered  in  evidence  a  conversation  between  him  and 
Patrick  Haney,  the  father,  on  the  3d  of  July,  1855,  (at  which  time  the 
defendant  said  he  was  first  informed  of  the  accident,)  upon  the  sub- 
ject of  the  injury  suffered  by  the  plaintiff,  and  upon  the  question  by 
whom  it  was  occasioned ;  and  the  defendant  desired  to  put  in  all  that 
was  said  by  Patrick  at  that  time  on  that  subject;  contending  that  he 
was  then  acting  as  agent  of  the  plaintiff".     But  the  judge  excluded  it. 

The  defendant  was  also  asked  by  his  counsel,  "Who  was  present  at 
the  conversation,  when  information  of  the  accident  was  communicated 
to  you?"  But  it  not  being  claimed  that  plaintiff  was  present,  the  judge 
excluded  this  evidence  also.  A  verdict  was  returned  for  the  plaintiff, 
and  the  defendant  alleged  exceptions. 

Merrick,  J.^^  There  is  no  ground  upon  which  the  defendant's 
exceptions  can  be  sustained.  The  declarations  and  statements  of  the 
plaintiff''s  father,  which  he  offered  to  put  in  evidence,  were  rightly  re- 
jected, because  it  had  not  been  made  to  appear  that  he  had,  up  to  tlie 
time  of  the  occurrence  of  the  conversation  proposed  to  be  proved, 
ever  been  appointed  or  recognized  as  the  agent  of  the  plaintiff,  or  au- 
thorized to  speak  on  any  subject  on  his  account  or  in  his  behalf.     Be- 

8  8  Part  of  opiuiou  omitted. 


)28  HEARSAY  (Ch. 


fore  anything  said  or  done  by  a  supposed  agent  can  be  admitted  in 
evidence  to  affect  the  rights  of  his  alleged  principal,  the  fact  of  agency 
must  first  be  satisfactorily  established,  and  it  cannot  be  proved  merely 
by  his  own  admission  or  assertions.  2  Stark,  Ev.  (1st  Amer.  Ed.)  55 ; 
1  Greenl.  Ev.  §  114.  He  may  be  called  as  a  witness  and  the  agency 
may  be  shown  by  his  testimony.  But  his  statements,  declarations  and 
admissions,  made  out  of  court,  stand  on  different  ground,  and  are 
never  to  be  received  as  evidence  for  such  purpose.  They  are  to  be 
considered  and  treated  as  mere  hearsay,  and  are  of  course  not  admis- 
sible when  offered  in  evidence  as  means  or  instruments  of  proof.  The 
defendant  could  not  therefore  establish  the  fact  of  the  agency  of  the 
father  by  proof  of  anything  said  by  him ;  and  he  did  not  show  it  by  any 
other  positive  or  circumstantial  evidence  in  the  case.  From  the  facts 
which  were  proved,  as  reported  in  the  bill  of  exceptions,  and  which 
were  adverted  to  by  the  defendant's  counsel  in  his  argument  in  sup- 
port of  the  exceptions  as  being  sufficient  to  justify  an  inference  to 
that  effect,  no  such  deduction  can  be  legitimately .  or  legally 
drawn.     *     *     * 

Exceptions  overruled. 


PEOPLE  v.  DAVIS. 
(Court  of  Appeals  of  New  York,  1874.     56  N,  Y.  95.) 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  third  ju- 
dicial department  to  review  order  reversing  a  judgment  of  the  Court 
of  Oyer  and  Terminer  of  the  county  of  Otsego,  entered  upon  a  verdict 
convicting  defendant  in  error  of  a  felony,  upon  an  indictment  under 
the  statute  "for  the  better  prevention  of  the  procurement  of  abor- 
tions," etc.  (chapter  181,  Laws  of  1872.)  Said  order  also  granted 
a  new  trial. 

Reported  below,  2  Thomp.  &  C.  212.^ 

Grover,  j.  *  *  *  The  counsel  for  the  accused  excepted  to  the 
ruling  of  the  court  admitting  evidence  of  the  statement  of  the  deceased, 
in  the  absence  of  the  accused,  as  to  what  was  done  at  the  doctor's  office 
upon  the  occasion  of  a  ride  she  took  with  him.  This  ruling  is  sought 
to  be  sustained  upon  the  ground,  first,  that  it  was  part  of  the  res  gestae  ; 
and  second,  that  it  was  competent  as  the  act  or  declaration  of  a  co- 
conspirator, while  engaged  in  the  purpose  of  the  conspiracy.  The  case 
shows  that  the  deceased,  in  company  with  the  prisoner,  left  her  resi- 
dence, in  his  buggy,  and  was  absent  several  hours ;  that  he  brought  her 
back,  and  she  came  into  the  house ;  that  the  prisoner  did  not  come  in ; 
that  immediately  after  she  came  in,  in  answer  to  inquiries  from  her 
stepmother,  she  made  the  statement  in  question,  telling  what  had  been 
done  by  the  doctor  at  his  office,  and  how  he  did  it,  and  exhibited  cer- 

1  Stutemeut  coudeu.sed  aud  part  of  upiiiluu  uuiilted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  529 

tain  medicine  which  she  said  the  doctor  gave  her,  and  stated  what 
he  told  her  as  to  taking  it  when  her  pains  came  on.     *     *     * 

It  is  insisted  that  the  statement  was  competent,  as  being  the  dec- 
laration of  a  co-conspirator.    The  evidence  was  such  as  to  warrant  the 
conclusion  that  the  prisoner  and  the  deceased  had  agreed  or  conspired 
together  to  procure  the  miscarriage  of  the  latter;    that  in  the  prose- 
cution of  this  purpose  they  went  away  from  the  residence  of  the  de- 
ceased together,  in  the  buggy  of  the  prisoner.     The  counsel  for  the 
prisoner  insists  that  the  deceased  was  not  an  accomplice  but  a  victim, 
and  cites  Dunn  v.  People  [29  N.  Y.  523,  86  Am.  Dec.  319]  in  support 
of  the  position.    This  has  no  bearing  upon  the  question  under  consid- 
eration.   Irrespective  of  the  ethical  view  of  the  conduct  of  the  woman, 
section  2  of  the  statute  makes  her  acts  highly  criminal.     The  perpe- 
tration of  the  crimes  prohibited  by  the  statute  may  be  the  subject  of  a 
conspiracy,  and  the  female  subject  of  the  acts  a  co-conspirator.    The 
general  rule  is,  that  when  sufficient  proof  of  a  conspiracy  has  been  giv- 
en to  establish  the  fact  prima  facie  in  the  opinion  of  the  judge,  the  acts 
and  declarations  of  each  conspirator  in  the  furtherance  of  the  com- 
mon object  are  competent  evidence  against  all.     1  Whart.  Crim.  Law, 
702;   3  Greenl.  Ev.  94;    1  Taylor,  Ev.  527.    But  to  make  the  declara- 
tion competent  it  must  have  been  made  in  the  furtherance  of  the  pros- 
ecution of  the  common  object,  or  constitute  a  part  of  the  res  gestae 
of  some  act  done  for  that  purpose.    A  mere  relation  of  something  al- 
ready done  for  the  accomplishment  of  the  object  of  the  conspirators  is 
not  competent  evidence  against  the  others.     1  Taylor,  Ev.  542,  §  530. 
We  have  already  seen  that  the  statement  in  question  was  a  mere  narra- 
tion of  what  had  been  done.    True,  she  stated  that  the  medicine  ex- 
hibited was  to  be  taken  by  her  thereafter,  but  this  was  not  for  the  pur- 
pose of  producing  her  miscarriage,  but  to  protect  her  from  the  dan- 
ger to  be  apprehended  therefrom.     The  means  to  produce  the  mis- 
carriage, upon  the  theory  of  the  prosecution,  had  already  been  applied. 
There  remained  nothing  further  to  be  done  to  effect  this  object.    The 
conspiracy  was  therefore  ended.    Had  it  been  shown  that  the  medicine 
was  to  be  taken  to  aid  in  producing  the  miscarriage,  what  was  said  in 
respect  to  it  would  have  been  admissible.    This  was  not  shown,  and  the 
entire  statement  was  inadmissible.     *     *     * 
Order  (granting  new  trial)  affirmed. ^ 

2  In  the  conspiracy  cases  it  frequently  appears  to  be  assumed  that  all  that 
is  necessary  is  that  the  declaration  or  statement  should  have  been  made  while 
the  conspiracy  existed;  perhaps  the  expression,  "clum  feryet  opus,"  so  fre- 
quently used,  may  account  for  this  notion. — Ed. 

HiNT.Ev.^— 34 


530  HEARSAY  (Ch.  3 


WARNER  V.  MAINE  CENT.  R.  CO. 

(Supreme  Judicial  Court  of  Maine.  1913.     Ill  Me.  149,  88  Atl.  403,  47  L.  R.  A. 

[N.  S.]  830.) 

Action  for  damages  for  the  destruction  of  certain  property  by  fire 
alleged  to  have  been  set  out  by  defendant's  locomotive.  The  station 
agent's  letter  reporting  the  matter  to  the  general  manager  was  admit- 
ted on  behalf  of  the  plaintiff,  who  obtained  a  verdict  in  tlie  court  be- 
low.^ 

King,  j.  *  *  *  ^Xe  are  of  opinion  that  the  letter  was  both  in- 
competent and  prejudicial  to  the  defendant,  and  should  not  have  been 
received  in  evidence. 

The  rule  governing  the  admission  of  declarations  of  an  agent  as 
evidence  against  his  principal  has  been  frequently  stated  by  courts  and 
text-writers,  though  in  somewhat  varying  language.  It  is  founded  upon 
'  the  idea  of  the  legal  identity  of  the  agent  and  the  principal,  which  pre- 
supposes authority  from  the  principal  to  the  agent  to  make  the  declara- 
tions. That  authority  may  be  expressly  given  as  to  make  some  specific 
declaration,  or  it  may  be  derived  by  implication  from  authority  given 
to  the  agent  to  do  a  certain  act  for  the  principal,  in  the  doing  of  which 
the  declaration  is  made.  While  acting  within  the  scope  of  his  authority, 
and  in  the  execution  of  it,  the  agent  is  the  principal,  and  his  declara- 
tions and  representations  in  reference  to  and  accompanying  his  act  are 
therefore  admissible  in  evidence  against  the  principal  in  the  same  man- 
ner as  if  made  by  the  principal  himself. 

The  language  of  Sir  Wm.  Grant  in  the  leading  case  of  Fairlie  v. 
Hastings,  10  Ves.  123,  is  often  quoted  as  a  correct  statement  of  the 
principles  upon  which  the  declarations  of  an  agent  can  be  received 
as  evidence  against  his  principal.  In  that  opinion  he  said :  "What  the 
agent  has  said  may  be  what  constitutes  the  agreement  of  the  principal, 
or  the  representations  or  statements  may  be  the  foundation  of  or  the 
inducement  to  the  agreement.  Therefore,  if  writing  is  not  necessary 
by  law,  evidence  must  be  admitted  to  prove  the  agent  did  make  that 
statement  or  representation.  So,  in  regard  to  acts  done,  the  words 
with  which  those  acts  are  accompanied  frequently  tend  to  determine 
their  quality.  The  party,  therefore,  to  be  bound  by  the  act  must  be  af- 
fected by  the  words.  But,  except  in  one  or  the  other  of  those  way.s,  I 
do  not  know  how  what  is  said  by  an  agent  can  be  evidence  against  his 
principal." 

Prof.  Greenleaf  says:  "It  is  to  be  observed  that  the  rule  admitting 
the  declarations  of  the  agent  is  founded  upon  the  legal  identity  of  the 
agent  and  the  principal,  and  therefore  they  bind  only  so  far  as  there 
is  authority  to  make  them.  Where  tiiis  authority  is  derived  by  impli- 
cation from  authority  to  do  a  certain  act,  the  declarations  of  the  agent 

3  StuteuiC'iit  eoii(Ji'ii.se(J  and  iiart  of  upiuiou  oiiiiUcd. 


Sec.  2)  RECOGNIZED   EXCErTIONS  531 

to  be  admissible  must  be  a  part  of  the  res  gesta;."  Greenlcaf  on  Ev. 
(15th  Ed.)  §  114. 

]\Ir.  Mechem,  in  his  work  on  Agency  (section  714),  states:  "And 
(3)  the  statements,  representations,  or  admissions  must  have  been  made 
by  the  agent  at  the  time  of  the  transaction,  and  "either  while  he  was  ac- 
tually engaged  in  the  performance,  or  so  soon  after  as  to  be  in  reality 
a  part  of  the  transaction.  Or,  to  use  the  common  expression,  they 
must  have  been  a  part  of  the  res  gestae.  If,  on  the  other  hand,  they 
were  made  before  the  performance  was  undertaken,  or  after  it  was 
completed,  or  while  the  agent  was  not  engaged  in  the  performance,  or 
after  his  authority  had  expired,  they  are  not  admissible.  In  such  case 
they  amount  to  no  more  than  the  narrative  of  a  past  transaction,  and 
do  not  bind  the  principal." 

Our  own  court  has  said :  "The  declarations,  representations,  or  ad- 
missions of  an  agent  authorized  to  make  a  contract  made  as  induce- 
ments to  or  while  making  the  contract  are  admissible  as  evidence 
against  his  principal.  They  are  also  admissible  as  evidence  against 
him,  when  made  by  his  agent  accompanying  the  performance  of  any 
act  done  for  him.  They  are  not  admissible,  and  do  not  bind  the  prin- 
cipal, when  not  made  as  before  stated,  but  at  a  subsequent  time." 
Franklin  Bank  v.  Steward,  Zl  Me.  519,  524. 

In  Packet  Co.  v.  Clough,  20  Wall.  528,  540  (22  L.  Ed.  406),  the  Su- 
preme Court,  by  Mr.  Justice  Strong,  said :  "It  is  true  that  whatever 
the  agent  does  in  the  lawful  prosecution  of  the  business  intrusted  to 
him  is  the  act  of  the  principal,  and  the  rule  is  well  stated  by  Mr.  Jus- 
tice Story  that,  'where  the  acts  of  the  agent  will  bind  the  principal, 
there  his  representations,  declarations,  and  admissions  respecting  the 
subject-matter  will  also  bind  him,  if  made  at  the  same  time,  and  con- 
stituting part  of  the  res  gestae.'  A  close  attention  to  this  rule,  which 
is  of  universal  acceptance,  will  solve  almost  every  difficulty." 

Applying  this  rule  to  the  present  case,  how  does  it  stand?  The  thing 
of  which  the  plaintiffs  complain  was  that  the  defendant's  locomotive 
engine  emitted  sparks  or  cinders,  by  which  the  buildings  burned  were 
set  on  fire.  That,  and  that  alone,  constituted  the  alleged  cause  of  ac- 
tion. That  was  the  res  gestae.  The  station  agent,  Hayes,  had  no  part 
in  that.  In  writing  the  letter  the  next  day  after  the  fire  he  was  doing 
no  act  for  the  defendant  which  formed  a  part  of  the  particular  trans- 
action from  which  its  alleged  liability  arose.  His  statements  contain- 
ed in  the  letter  amount  to  no  more  than  his  narrative  and  opinion  of  a 
past  transaction,  and  for  that  reason  could  not  affect  his  principal. 

But  it  is  contended  that  the  letter  was  admissible  because  the  agent 
in  writing  it  was  performing  a  duty  required  of  him  by  the  company  to 
report  such  occurrences.  Granted  that  he  was,  upon  what  principle 
could  it  be  held  that  the  defendant  would  be  bound  by  his  statements 
and  admissions  contained  in  the  report,  without  proof  that  it  adopted 
those  statements  and  admissions  as  its  own,  except  for  the  purpose  of 
charging  it  with  notice  thereof  ?    As  stated  in  Carroll  v.  East  Tennessee, 


532  HEARSAY  (Ch.  3 

V.  &  G.  Ry.  Co.,  82  Ga.  452,  10  S.  E.  163,  6  L.  R.  A.  214:  "It  surely 
cannot  be  sound  law  to  hold  that  by  collecting  information,  whether 
under  general  rules  or  special  orders,  and  whether  from  its  own  of- 
ficers, agents,  and  employes  or  others,  a  corporation  acquires  and  takes 
such  information  at  the  peril  of  having  it  treated  as  its  own  admis- 
sions, should  litigation  subsequently  arise  touching  the  subject-matter." 

In  that  case,  which  was  an  action  to  recover  damages  for  personal 
injuries  alleged  to  have  been  caused  by  the  defendant's  negligence,  re- 
ports of  the  accident,  made  to  the  general  manager  of  the  company,  by 
the  superintendent  and  by  the  conductor  of  the  train,  supported  by  his 
affidavit  and  that  of  several  others,  embracing  the  engineer,  fireman, 
flagman,  and  brakeman,  were  admitted  in  evidence  on  behalf  of  the 
plaintift",  over  the  defendant's  objection.  But  it  was  held  on  exceptions 
that  they  were  inadmissible. 

Further,  it  needs  no  argument  to  sustain  the  proposition  that  Air. 
Hayes  had  no  authority  by  virtue  of  his  office  as  station  agent  to  bind 
the  railroad  company  by  an  admission  of  its  liability  as  alleged  in  this 
case.  If  authority  in  him  to  make  such  an  admission  is  claimed,  it 
should  be  shown  by  competent  proof,  for  it  cannot  be  inferred  as  with- 
in the  scope  of  his  authority  as  station  agent. 

In  the  case  of  Randall,  Ex'r,  v.  Northwestern  Tel.  Co.,  54  Wis.  140, 
UN.  W.  419,  41  Am.  Rep.  17,  which  was  a  suit  to  recover  damages 
for  an  injury  occasioned,  as  alleged,  by  the  negligence  of  the  defendant 
in  not  keeping  its  line  in  proper  repair,  whereby  the  plaintiff  while 
traveling  along  the  highway  became  entangled  in  its  wire,  and  was  in- 
jured, the  admission  of  the  following  telegram  from  the  superintendent 
of  the  telegraph  company  was  held  reversible  error :  "To  Gen.  George 
C.  Ginty :  Many  thanks  for  your  kind  words  for  us  to  the  gentlemen 
who  were  hurt  by  our  old  wire.  I  hope  to  be  with  you  tomorrow,  and 
see  them ;  but  I  must  go  home.  Have  them  make  a  bill  and  send  me. 
We  will  pay  any  reasonable  bill.  My  instructions,  if  obeyed,  would 
have  prevented  the  accident ;  but  the  repairman  neglected  his  duty,  and 
we  must  pay  the  penalty."  The  court  there  said :  "In  the  absence  of 
any  proof  showing  that  the  superintendent  was  authorized  by  the  com- 
pany to  bind  it  by  his  admissions,  we  do  not  think  the  court  was  justi- 
fied in  assuming  that  he  had  such  power.  He  was  a  competent  witness 
for  the  plaintiff,  and,  though  holding  a  high  position  as  an  agent  of  the 
defendant,  he  was  still  only  an  agent,  and  for  the  purpose  of  admitting 
away  the  rights  of  the  defendant  he  cannot  be  presumed  to  have  all  the 
powers  of  the  corporation.  *  *  *  fiie  authority  to  make  the  ad- 
mission for  the  principal  or  corporation  is  not  to  be  inferred  from  the 
position  or  rank  of  the  party  making  the  same.  If  such  authority  is 
alleged  to  exist,  it  must  be  shown  by  competent  proofs." 

In  the  case  at  bar  the  letter  was  introduced  by  the  plaintiff  as  affirma- 
tive evidence  against  the  defendant,  as  an  admission  of  liability  binding 
upon  the  defendant.  But  according  to  well  established  principles  of 
law  it  was  incompetent  for  such  purpose,  and  we  are  constrained  to  the 


Sec.  2)  RECOGNIZED   EXCEPTIONS  533 

opinion  that  its  admission  was  prejudicial  to  the  defendant.  We  must 
hold,  therefore,  that  tliere  was  reversible  error  in  admitting  the  letter  in 
evidence.  This  conclusion  makes  it  unnecessary  to  consider  the  other 
exceptions  or  motion. 

In  each  case  the  entry  will  be: 

Exceptions  sustained.* 


(B)  Confessions  ' 
FELTON'S  CASE. 

(Court  of  King's  Bench,  1628.    3  How.  St.  Trials,  367.) 

[The  defendant  was  under  arrest  for  the  murder  of  the  Duke  of 
Buckingham,  and  was  brought  up  for  examination.] 

Afterwards  Felton  was  called  before  the  council,  where  he  con- 
fessed much  of  what  is  before  mentioned  concerning  his  inducement  to 
the  murder :  the  council  much  pressed  him  to  confess  who  set  him  on 
work  to  do  such  a  bloody  act,  and  if  the  Puritans  had  no  hand  therein ; 
he  denied  they  had,  and  so  he  did  to  the  last,  that  no  person  whatso- 
ever knew  anything  of  his  intentions  or  purpose  to  kill  the  duke,  that 
he  revealed  it  to  none  living.  Dr.  Laud,  bishop  of  London,  being 
then  at  the  council-table,  told  him  if  he  would  not  confess,  he  must 
go  to  the  rack.  Felton  replied,  if  it  must  be  so  he  could  not  tell  whom 
he  might  nominate  in  the  extremity  of  torture,  and  if  what  he  should 
say  then  must  go  for  truth,  he  could  not  tell  whether  his  lordship 
(meaning  the  bishop  of  London)  or  which  of  their  lordships  he  might 
name,  for  torture  might  draw  unexpected  things  from  him :  after  this 
he  was  asked  no  more  questions,  but  sent  back  to  prison.  The  council 
then  fell  into  debate,  whether  by  the  law  of  the  land  they  could  justify 
the  putting  him  to  the  rack ;  the  King  being  at  council  said,  before  any 
such  thing  should  be  done,  let  the  advice  of  the  judges  be  had  therein, 
whether  it  be  legal  or  no,  and  afterwards  his  majesty  the  13th  of  No- 
vember, 4  Car.,  propounded  the  question  to  Sir  Tho.  Richardson,  Lord 
Chief  Justice  of  the  Common  Pleas,  to  be  propounded  to  all  the  jus- 
tices, (viz.)  Felton  now  a  prisoner  in  the  Tower  having  confessed  that 
he  had  killed  the  duke  of  Buckingham,  and  said  he  was  induced  to  this, 
partly  for  private  displeasure,  and  partly  by  reason  of  remonstrance 
in  parliament,  having  also  read  some  books,  which,  he  said,  defended 
that  it  was  lawful  to  kill  an  enemy  to  the  republic,  the  question  there- 
fore is,  whether  by  the  law  he  might  not  be  racked,  and  whether  there 
were  any  law  against  it  (for  said  the  king)  if  it  might  be  done  by 
law,  he  would  not  use  his  prerogative  in  this  point,  and  having  put 

*  For  a  collection  of  the  cases  on  this  point,  see  Atchison,  T.  &  S.  F.  Ry. 
Co.  V.  Burks,  18  L.  R.  A.  (N.  S.)  231,  annotated  (190S). 

s  For  the  rule  that  a  confession  alone  is  not  sufficient  to  prove  the  corpus 
delicU.  see  Wistrand  v.  People,  213  111.  72,  72  N.  E.  748  (1904),  post,  p.  917. 


534  HEARSAY  (Ch.  3 

this  question  to  the  Lord  Chief  Justice,  the  king  commanded  him  to 
demand  the  resokitions  of  all  the  judges. 

First  the  Justices  of  Serjeants  Inn  in  Chancery-lane  did  meet  and 
agree,  that  the  king  may  not  in  this  case  put  the  party  to  the  rack.  And 
the  14th  of  November  all  tlie  justices  being  assembled  at  Serjeants  Inn 
in  Fleet-street,  agreed  in  one,  that  he  ought  not  by  the  law  to  be  tor- 
tured by  the  rack,  for  no  such  punishment  is  known  or  allowed  by  our 
law. 

And  this  in  case  of  treason  was  brought  into  this  kingdom  in  the 
time  of  Henry  the  6th ;  note  Fortescue  for  this  point,  in  his  book  'de 
laudibus  legum  Anglise,'  see  the  preamble  of  the  act  28  H.  8  for  the 
trial  of  felony,  where  treasons  are  done  upon  the  sea,  and  statute  14 
Ed.  3,^  ca.  of  jailors  or  keepers,  who  by  duress  make  the  prisoners  to 
be  approvers. 

On  Thursday  the  27th  of  November,  Felton  was  removed  from  the 
Tower  to  the  Gate-House,  in  order  to  his  trial,  and  was  the  same  day 
brought  by  the  sheriffs  of  London  to  the  King's  Bench  bar,  and  the  in- 
dictment being  read,  he  was  demanded  whether  he  were  guilty  of  the 
murder  therein  mentioned :  He  answered,  he  was  guilty  in  killing  the 
duke  of  Buckingham,  and  further  said,  that  he  did  deserve  death  for 
the  same,  though  he  did  not  do  it  out  of  malice  to  him.  So  the  court 
passed  sentence  of  death  upon  him ;  whereupon  he  offered  that  hand 
to  be  cut  off  that  did  the  fact;  but  the  court  could  not.  upon  his  own 
offer,  inflict  that  further  punishment  upon  him :  Nevertheless  the  king 
sent  to  the  judges  to  intimate  his  desire,  that  his  hand  might  be  cut 
off  before  execution.  But  the  court  answered,  that  it  could  not  be ; 
for  in  all  murders,  the  judgment  was  the  same,  unless  when  the  statute 
of  25  E.  3,  did  alter  the  nature  of  the  offence,  and  upon  a  several  indict- 
ment, as  it  was  in  queen  Elizabeth's  time,  when  a  felon  at  the  bar  flung 
a  stone  at  a  judge  upon  the  bench,  for  which  he  was  indicted,  and  his 
sentence  was  to  have  his  hand  cut  off,  which  was'  accordingly  done. 
And  they  also  proceeded  against  him  upon  the  other  indictment  for 
felony,  for  which  he  was  found  guilty,  and  afterwards  hanged.  And 
Felton  was  afterwards  hung  up  in  chains,  in  manner  as  is  usual  upon 
notorious  murders. 

8  "And  if  it  liappen  that  the  keeper  of  the  prison,  or  underlieeper,  by  too 
great  duress  of  imprisoninent,  and  by  pain,  mal^e  any  prisoner  that  lie  hath 
in  his  ward  to  become  an  appellor  apainst  his  will,  and  thereof  be  attainted, 
he  shall  have  judgment  of  life  and  of  member." 


f 

/ 

/ 


Sec.  2)  RECOGNIZED   EXCEPTIONS  535 

REX  V.  JONES.  ' 

(Court  of  Criminal  Appeal,  1809.     Russ.  &  Ry.  152.) 

The  prisoner  was  tried  before  Mr.  Justice  Chambre,  at  the  Win- 
chester Lent  assizes,  in  the  year  1809,  upon  an  indictm,ent  for  steahng 
money  to  the  amount  of  £1.  8s.,  the  property  of  John  Webb,  a  private 
in  the  Somerset  MiHtia. 

A  part  of  the  evidence  was  as  follows : 

The  prosecutor,  who,  as  well  as  others,  had  been  in  pursuit  of  the 
prisoner,  found  him,  at  last,  in  a  room  of  a  public  house,  in  custody  of 
a  constable,  to  whom  he  had  been  delivered  by  a  serjeant  of  marines, 
who  had  apprehended  him.  On  finding  him  there,  the  prosecutor  asked 
him  for  the  money  that  he,  the  prisoner,  had  taken  out  of  the  prose- 
cutor's pack,  upon  which  the  prisoner  took  lis.  6Vod.  out  of  his  pocket, 
and  -said  it  was  all  he  had  left  of  it.  The  Serjeant  (who  was  in  the 
same  room  with  the  constable  and  the  prisoner)  gave  the  same  account 
of  the  conversation  and  of  the  production  of  the  money  by  the  pris- 
oner; but  he  added,  that  Webb  the  prosecutor,  before  the  money  was 
produced,  said  "he  only  wanted  his  money,  and  if  the  prisoner  gave 
him  that,  he  might  go  to  the  devil  if  he  pleased." 

The  money  (lis.  6i/2<^-)  was  taken  charge  of  by  the  serjeant. 

The  learned  judge  left  the  whole  of  this  evidence  for  the  considera- 
tion of  the  jury,  and  they  found  the  prisoner  guilty. 

In  Easter  term,  29th  of  April,  1809,  the  majority  of  the  judges 
present,  viz.,  Macdonai.d,  C.  B.,  Chambre,  J.,  Lawrence,  J.,  LE 
Elanc,  J.,  and  Heath,  J.,  held  that  the  evidence  was  not  admissible, 
and  the  conviction  wrong.  Wood,  B.,  Grose,  J.,  Mansfield,  C.  J. 
of  C.  B.,  contra.     Lord  Ellenborough,  dubitante. 


REX  v.  JENKINS. 

(Court  of  Criminal  Appeal,  1822.     Russ.  &  R.  492.) 

The  prisoner  was  convicted  before  Mr.  Justice  Bayley  (present  Mr. 
Justice  Park),  at  the  Michaelmas  Old  Bailey  sessions,  in  the  year 
1822,  of  stealing  several  gowns  and  other  articles.  He  was  induced 
by  a  promise  from  the  prosecutor  to  confess  his  guilt,  and,  after  that 
confession,  he  carried  the  officer  to  a  particular  house  as  and  for  the 
house  where  he  had  disposed  of  the  property,  and  pointed  out  the 
person  to  whom  he  had  delivered  it.  That  person  denied  knowing  any- 
thing about  it,  and  the  property  was  never  found.  The  evidence  of 
the  confession  was  not  received;  the  evidence  of  his  carrying  the  offi- 
cer to  the  hoise  as  above-mentioned  was;  but  as  Mr.  Justice  Bayley 
thought  it  questionable  whether  that  evidence  was  rightly  received,  he 
stated  the  point  for  the  consideration  of  the  judges. 


536        '  \  HEARSAY  (Ch.  3 

In  Michaelmrls  term,  1822,  the  case  was  considered  by  the  judges, 
who  were  of  o  jinion  that  the  evidence  was  not  admissible,  and  that 
the  conviction  was  therefore  wrong.  The  confession  was  exchided,  be- 
cause being  made  under  the  influence  of  a  promise  it  could  not  be  relied 
upon,  and  the  acts  of  the  prisoner,  under  the  same  influence,  not  being 
confirmed  by  the  finding  of  the  property,  were  open  to  the  same  objec- 
tion. The  influence  which  might  produce  a  groundless  confession, 
might  also  produce  groundless  conduct. '' 


REG.  V.  MOORE. 

(Court  of  Criminal  Appeal,  1852.     2  Denison,  Crown    Cas.  522.) 

The  prisoner  was  tried  at  the  last  Assizes  for  Sussex  before  Parke, 
B.,  on  the  coroner's  inquisition,  for  wilful  murder  of  her  new  6orn 
child.    There  was  an  indictment  also  against  her  for  the  same  ofifence. 

She  was  found  guilty  of  the  misdemeanor  of  concealing  the  birth  of 
her  child. 

There  was  offered  in  evidence  against  her  a  confession  made  by  her, 
in  the  presence  of  her  mistress,  to  a  surgeon  who  was  attending  her, 
of  her  having  strangled  her  child  with  a  thread,  and  placed  the  dead 
body  in  a  privy,  where  it  was  found,  with  the  thread  around  its  neck. 
Her  mistress  had  told  her,  before  the  surgeon  came  in,  that  "she  had 
better  speak  the  truth,"  and,  in  answer,  she  said  she  would  tell  it  to 
the  surgeon. 

An  objection  was  taken,  that  any  subsequent  confession  was  inad- 
missible. After  consulting  Coleridge,  J.,  his  Lordship  received  the  evi- 
dence, being  of  opinion  that  in  this  case  her  husband,  not  being  the 
prosecutor,  nor  the  offence  in  any  way  connected  with  the  manage-' 
ment  of  the  house,  the  prisoner's  mistress  could  not  be  considered  as 
having  any  control  over  the  prosecution  so  as  to  raise  a  presumption 
that  the  inducement  held  out  by  her  would  be  likely  to  cause  her  to 
tell  an  untruth. 

The  prisoner  was  acquitted  of  the  murder,  because  the  jury  believed 
that  she  was  in  such  a  state  of  mind  that  she  did  not  know  what  she 
was  about  at  the  time. 

The  learned  Baron,  therefore,  requested  the  opinion  of  the  Judges, 
whether  the  evidence  was  admissible. 

On  the  24th  April,  A.  D.  1852,  this  case  was  argued  before  Pollock, 
C.  B.,  Parke,  B.,  Erie,  J.,  Williams,  J.,  and  Crompton,  J. 

On  the  14th  June,  A.  D.  1852,  the  following  Judges  being  present, 
Jervis,  C.  J.,  Parke,  B.,  Alderson,  B.,  Maule,  J.,  Cresswell,  J.,  Plait, 
B.,  Talfourd,  J.,  and  ]\Tartin,  B.,  the  following  judgment  was  read  by 

1 1t  had  boon  held  In  1783,  In  Wnrlckshall's  Case.  Leach.  2G.3,  lliat,  whore 
Htolf'ii  firoiKTly  Is  rocovaroil  as  the  result  of  a  ronfossion,  that  fact  may  be 
proved,  thougli  the  coufes-sloii  itself  may  be  inadiuissible. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  537 

Parks,  B.  The  cases  on  this  subject  have  gone  quite  far  enough, 
and  ought  not  to  be  extended. 

It  is  admitted  that  confessions  ought  to  be  excluded  unless  volun- 
tary, and  the  Judge,^  not  the  jury,  ought  to  determine  whether  they 
are  so. 

One  element  in  the  consideration  of  this  question  as  to  their  being 
voluntary  is,  whether  the  threat  or  inducement  was  such  as  to  be 
likely  to  influence  the  prisoner.  Perhaps  it  would  have  been  better  to 
have  held   (when  it  was  determined   that  the  Judge  was  to   decide 

8  That  the  .iudge  conclusively  settles  the  question  of  admissibility,  see  State 
V.  Brister,  ante,  p.  120 ;  Burton  v.  State,  107  Ala.  108,  18  South.  284  (1894) ; 
State  V.  Breuuan,  164  Mo.  487,  65  S.  W.  325  (1901) ;  State  v.  Monich,  74  N.  J. 
Law,  522,  64  Atl.  1016  (1906). 

Contra:  Fuller.  C.  J.,  in  WiLson  v.  United  States,  162  U.  S.  613,  16  Sup.  Ct. 
895,  40  Lu  Ed.  1090  (1896) :  "When  there  is  a  conflict  of  evidence  as  to  whether 
a  confession  is  or  is  not  voluntary,  if  the  court  decides  that  it  is  admissible, 
the  question  may  be  left  to  the  jury  with  the  direction  that  they  should  re- 
ject the  confession  if  upon  the  whole  evidence  they  are  satisfied  it  was  not 
the  voluntary  act  of  the  defendant.  Commonwealth  v.  Preece,  140  Mass  270 
5  N.  E.  494  (1885) ;  People  v.  Howes,  81  Mich.  396,  45  N.  W.  961  (1890) ;  Thom- 
as V.  State.  84  Ga.  613,  10  S.  E.  1016  (1890) ;  Hardy  v.  United  States,  3  Dist. 
Col.  App.  35  (1893)." 

Cave,  J.,  in  Regina  v.  Thompson,  [1893]  2  Q.  B.  D.  12:  "  *  *  ♦  'The  ma- 
terial question  consequently  is  whether  the  confession  has  been  obtained  by 
the  influence  of  hope  or  fear:  and  the  evidence  to  this  point  being  in  its  na- 
ture preliminary,  is  addressed  to  the  judge,  who  will  require  the  prosecutor 
to  show  affirmatively,  to  his  satisfaction,  that  the  statement  was  not  mdde 
under  the  influence  of  an  improper  inducement,  and  who,  in  the  event  of  any 
doubt  subsisting  on  this  head,  will  reject  the  confession.'  The  case  cited  in 
support  of  this  proposition  is  Reg.  v.  Warringham  [2  Den.  C.  C.  447,  note 
(1851)],  where  Parke,  B.,  says  to  the  counsel  for  the  prosecution:  'You  are 
bound  to  satisfy  me  that  the  confession  which  you  seek  to  use  against  the 
prisoner  was  not  obtained  from  him  by  improper  means,  I  am  not  satisfied 
of  that ;  for  it  is  impossible  to  collect  from  the  answers  of  this  witness  wheth- 
er such  was  the  case  or  not'  Parke,  B.,  adds,  'I  reject  the  evidence  of  ad- 
mission, not  being  satisfied  that  It  was  voluntary.'  *  •  *  If  these  princi- 
ples and  the  reasons  for  them  are,  as  it  seems  impossible  to  doubt,  well  found- 
ed, they  afford  to  magistrates  a  simple  test  by  which  the  admissibility  of  a 
confession  may  be  decided.  They  have  to  ask,  Is  it  proved  affirmatively  that 
the  confession  was  free  and  voluntary — that  is.  Was  It  preceded  by  any  in- 
ducement to  make  a  statement  held  out  by  a  person  in  authority?  If  so,  and 
the  inducement  has  not  clearly  been  removed  before  the  statement  was  made, 
evidence  of  the  statement  is  inadmissible." 

Compare  Sherwood,  J.,  in  State  v.  Patterson,  73  Mo.  695  (1881):  "Green- 
leaf,  to  whose  work  we  are  cited,  states:  'Before  any  confession  can  be  re- 
ceived in  evidence  in  a  criminal  case,  it  must  be  shown  that  it  was  voluntary.' 
1  Greenleaf,  Ev.  §  219.  This  assertion  in  all  its  broadness  is  not  supported  by 
the  authorities.  Wharton  lays  down  the  rule  quite  differently:  'In  order  to 
exclude  evidence  of  a  prisoner's  confession,  it  must  appear  affirmatively  that 
some  inducement  to  confess  was  held  out  to  him,  by  or  in  the  presence  of 
some  one  having  authority.'  1  Am.  Crim.  Law,  §  69S.  Roscoe  is  thought  to 
state  the  rule  more  accurately.  He  says:  'For  the  purpose  of  introducing  a 
confession,  it  is  unnecessary  in  general,  to  negative  any  promise  or  induce- 
ment, unless  there  is  good  reason  to  suspect  that  something  of  the  kind  has 
taken  place.'  Roscoe,  Crim.  Ev.  54;  Id.  40;  liex  v.  Clewes,  4  C.  &  P.  221 
[1830] ;  Whart.  Crim.  Ev.  §  689 ;  6  St.  Tr.  807  [1666] ;  Reg.  v.  Garner,  1  Den. 
C.  C.  329  [1848] ;  Reg.  v.  Williams,  3  Russ.  on  Crimes,  432  [1811].  In  the  case 
last  cited  Taunton,  J.,  said:  'A  confession  is  presumed  to  be  voluntary  unless 
the  contrary  is  shown,  and  as  no  threat  or  promise  is  proved  to  have  been 
made  by  the  constables,  it  Is  not  to  be  presumed.' " 


538  HEARSAY  (Ch.  3 

whether  the  confession  was  voluntary),  that  in  all  cases  he  was  to 
decide  that  point  upon  his  own  view  of  all  the  circumstances,  including 
the  nature  of  the  threat  or  inducement,  and  the  character  of  the  person 
holding  it  out  together,  not  necessarily  excluding  the  confession  on 
account  of  the  character  of  the  person  holding  out  the  inducement 
or  threat. 

But  a  rule  has  been  laid  down  in  different  precedents  by  which  we 
are  bound,  and  that  is,  that  if  the  threat  or  inducement  is  held  out 
actually  or  constructively  by  a  person  in  authority,  it  cannot  be  re- 
ceived, however  slight  the  threat  or  inducement,  and  the  prosecutor, 
magistrate,  or  constable,  is  such  a  person,  and  so  the  master  or  mis- 
tress may  be. 

If  not  held  out  by  one  in  authority,  they  are  clearly  admissible. 

The  authorities  are  collected  in  Mr.  Joy's  very  able  Treatise  on  Con- 
fessions and  Challenges,  p.  23. 

But  in  referring  to  the  cases  where  the  master  or  mistress  have  been 
held  to  be  persons  in  authority,  it  is  only  when  the  offence  concerns 
the  master  or  mistress,  that  their  holding  out  the  threat  or  promise 
renders  the  confession  inadmissible. 

In  Rex  V.  Upchurch,  R.  &  M.  C.  C.  865,  the  offence  was  arson  of 
the  dwelling-house,  in  the  management  of  which  the  mistress  took  a 
part.  Reg.  v.  Taylor,  8  C.  &  P.  703,  is  to  the  like  effect;  so  Rex 
V.  Carrington,  109;  Rex  v.  Howell,  534;  so  where  the  threat  was 
used  by  the  master  of  a  ship  to  one  of  the  crew,  and  the  oft'ence  com- 
mitted on  board  the  ship  by  one  of  the  crew  towards  another ;  and  in 
that  case  also  the  master  of  the  ship  threatened  to  apprehend  him,  and 
the  offence  being  a  felony,  and  a  felony  actually  committed,  would 
have  a  power  to  do  so,  on  reasonable  suspicion  that  the  prisoner  was 
guilty.  In  Rex  v.  Warringham,  tried  before  me,  Surrey  Spring  As- 
sizes, 1851,  the  confession  was  in  consequence  of  what  was  said  by  a 
mistress  of  the  prisoner,  she  being  in  the  habit  of  managing  the  shop, 
and  the  offence  being  larceny  from  the  shop.  This  appears  from  my 
note. 

In  the  present  case,  the  offence  of  the  prisoner,  in  killing  her  child 
or  concealing  its  dead  body,  was  in  no  way  an  offence  against  the 
mistress  of  the  house.  She  was  not  the  prosecutrix  then,  and  there 
was  no  probability  of  herself  or  the  husband  being  the  prosecutor  of 
of  an  indictment  for  that  offence;  in  practice  the  prosecution  is  always 
the  result  of  a  coroner's  inquest.  Therefore,  we  are  clearly  of  opinion 
that  the  confession  was  properly  received. 

Conviction  confirmed." 

»  A  niling  to  the  same  effect  had  been  made  In  the  enrHor  rase  of  Rex  v. 
Row,  Russell  &  Ryan,  ]")?,  (ISOO),  where  certain  friends  of  tlie  prisoner  had 
urged  hhn  to  consider  his  family  and  tell  the  truth. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  539 

REG.  V.  BALDRY. 
(Court  of  Criminal  Appeal,  1852.    2  Denison,  Crown  Cas.  430.) 

While  tlie  defendant  was  in  custody  on  a  charge  of  poisoning  his 
wife,  a  constable  having  charge  of  him,  told  him  that  he  need  not  say 
anything  to  criminate  himself,  what  he  did  say  would  be  taken  down 
and  used  as  evidence  against  him.  The  prisoner  thereupon  made  a 
confession,  which  was  received  at  the  trial.  Lord  Campbell  reserved 
the  question  for  the  Court  of  Criminal  Appeal.  During  the  course  of 
the  argument  counsel  for  the  prisoner  advanced  the  proposition  that 
"  'The  law  cannot  measure  the  force  of  the  influence  used,  or  decide 
upon  its  effect  upon  the  mind  of  the  prisoner,  and  therefore,  excludes 
the  declaration  if  any  degree  of  influence  has  been  exerted.'  It  is 
gathered  from  this  that  if  any  inducement — of  the  slightest  description 
— whereby  any  worldly  advantage  to  himself  as  a  consequence  of 
making  a  statement,  be  held  out  to  a  prisoner,  the  law  presumes  the 
statement  to  be  untrue."  ^° 

Pollock,  C.  B.  You  are  overstating  it.  The  law  does  not  pre- 
sume that  it  is  untrue ;  but  rather  that  it  is  uncertain  whether  a  state- 
ment so  made  is  true. 

Lord  Campbell,  C.  J.  I  doubt  whether  the  rule  excluding  con- 
fessions made  in  consequence  of  an  inducement  held  out,  proceeds 
upon  the  presumption  that  the  confession  is  untrue;  but  rather  that 
it  would  be  dangerous  to  receive  such  evidence,  and  that  for  the  due 
administration  of  justice  it  is  better  that  it  should  be  withdrawn  from 
the  consideration  of  the  jury. 

Parke,  B.  I  entirely  agree  with  the  Lord  Chief  Baron  and  with 
the  view  taken  by  Lord  Campbell  at  the  trial.  The  prisoner  was 
tried  upon  an  indictment  charging  him  with  having  administered  poison 
to  his  wife  with  intent  to  murder  her.  On  the  part  of  the  prosecution 
a  police  constable  was  called,  whose  evidence  thus  began :  "I  went  to 
the  prisoner's  house  on  the  17th  December.  I  saw  the  prisoner.  Dr. 
Vincent,  and  Page,  another  constable,  were  with  me.  I  told  him  what 
he  was  charged  with ;  he  made  no  reply,  and  sat  with  his  face  buried 
in  his  handkerchief.  I  believe  he  was  crying.  I  said  he  need  not 
say  anything  to  criminate  himself,  what  he,  did  say  would  be  taken 
down  and  used  as  evidence  against  him."  Objection  was  made  on 
behalf  of  the  prisoner  that  what  he  then  said  was  not  admissible.  His 
Lordship  thought  that  the  words  of  the  statute  were  merely  a  direction, 
and  that  although  the  caution  of  the  constable  differed  from  that  di- 
rected by  11  «&  12  Vict.  c.  42,  §  18,  to  be  given  by  the  justice  to  the 
prisoner  in  the  word  "will"  instead  of  "may,"  it  did  not  amount  to 
any  promise  or  threat  to  induce  the  prisoner  to  confess ;   that  it  could 

10  Statement  condensed  and  concui-ring  opinions  omitted. 


540  HEARSAY  (Ch.  3 

have  no  tendency  to  induce  him  to  say  anything  untrue;  and  that  in 
spite  of  it,  if  he  did  afterwards  confess,  the  confession  must  be  con- 
sidered vohmtary.  In  that  I  entirely  concur,  and  I  think  that  the 
reasons  given  by  the  Lord  Chief  Justice  are  satisfactory.  By  the  law 
of  England,  in  order  to  render  a  confession  admissible  in  evidence 
it  must  be  perfectly  voluntary ;  and  there  is  no  doubt  that  any  in- 
ducement in  the  nature  of  a  promise  or  of  a  threat  held  out  by  a 
person  in  authority,  vitiates  a  confession.  The  decisions  to  that  effect 
have  gone  a  long  way ;  whether  it  would  not  have  been  better  to  have 
allowed  the  whole  to  go  to  the  jury,  it  is  now  too  late  to  inquire,  but 
I  think  there  has  been  too  much  tenderness  towards  prisoners  in  this 
matter.  I  confess  that  I  cannot  look  at  the  decisions  without  some 
shame  when  I  consider  what  objections  have  prevailed  to  prevent  the 
reception  of  confessions  in  evidence ;  and  I  agree  with  the  observation 
of  Mr,  Pitt  Taylor,  that  the  rule  has  been  extended  quite  too  far,  and 
that  justice  and  common  sense  have,  too  frequently,  been  sacrificed 
at  the  shrine  of  mercy.  We  all  know  how  it  occurred.  Every  Judge 
decided  by  himself  upon  the  admissibility  of  the  confession,  and  he 
did  not  like  to  press  against  the  prisoner,  and  took  the  merciful  view 
of  it.  If  the  question  were  res  nova  I  cannot  see  how  it  could  be 
argued  that  any  advantage  is  offered  to  a  prisoner  by  his  being  told 
that  what  he  says  will  be  used  in  evidence  against  him.  I  have  the 
most  unfeigned  respect  for  Coleridge,  J.,  and  Maule,  J.,  and  in  defer- 
ence to  their  decisions,  I  offered  to  reserve  a  case  at  Aylesbury,  but 
I  cannot  concur  in  their  judgment.  I  have  reflected  on  Reg.  v.  Drew 
and  Reg.  v.  Morton,  and  I  have  never  been  able  to  make  out  that 
any  benefit  was  held  out  to  the  prisoner  by  the  caution  employed  in 
those  cases.  We  ought  therefore  to  be  extremely  obliged  to  T.ord 
Campbell  for  having  reserved  the  point  in  order'  that  it  might  be 
settled. 

Conviction  affirmed. 


REG.  v.  JARVIS. 
(Court  of  Crown  Cases  Reserved,  1SG7.    L.  R.  1  Crown  Cas.  Res.  9G.) 

The  following  case  was  stated  by  the  Recorder  of  London : 
At  a  session  of  the  Central  Criminal  Court,  held  on  the  8th  of 
July,  1867,  and  following  days,  Frank  Jarvis,  Richard  Bulkley,  and 
Wilford  Bulkley,  were  tried  before  me  on  an  indictment,  for  feloni- 
ously stealing  138  yards  of  silk  and  other  property  of  William  Leaf 
and  others,  the  masters  of  Jarvis.  There  was  a  second  count  in  the  in- 
dictment for  feloniously  receiving  the  same  goods.  William  Laidler 
Leaf  was  examined,  and  said :  The  prisoner  Jarvis  was  in  my  employ. 
On  the  13th  of  May  we  called  him  up,  when  the  officers  were  there, 
into  our  private  counting  house.     I  said  to  him,  "Jarvis,  I  think  it  is 


Sec.  2)  RECOGNIZED   EXCEPTIONS  54J 

right  that  I  should  tell  you  that,  besides  being  in  the  presence  of  my 
brother  and  myself,  you  are  in  the  presence  of  two  officers  of  the 
police;  and  I  should  advise  you  that  to  any  question  that  may  be  put 
to  you  you  will  answer  truthfully,  so  that,  if  you  have  committed  a 
fault,  you  may  not  add  to  it  by  stating  what  is  untrue."  I  produced  a 
letter  to  him,  which  he  said  he  had  not  written ;  and  I  then  said,  "Take 
care,  Jarvis ;  we  know  more  than  you  think  we  know."  I  do  not  be- 
lieve I  said  to  him,  "You  had  better  tell  the  truth." 

Counsel  for  the  prisoner  Jarvis  objected  to  any  statement  of  his 
made  after  the  above  was  said  being  received  in  evidence,  and  re- 
ferred to  R.  V.  Williams,  2  Den.  C.  C.  433;  Reg.  v.  Warringham,  15 
Jur.  318;  2  Den.  C.  C.  447,  note;  Reg.  v.  Garner,  1  Den.  C.  C.  329; 
R.  V.  Shepherd,  7  C.  &  P.  579;  and  Reg.  v.  Millen,  3  Cox's  Crim.  Cas. 
507. 

Counsel  for  the  prosecution  referred  to  Reg.  v.  Baldry,  2  Den. 
C.  C.  430 ;  Reg.  v.  Sleeman,  Dears.  C.  C.  249 ;  and  Reg.  v.  Parker, 
Leigh  &  Cave,  C.  C.  42.    I    decided  that  the  statem.ent  was  admissible. 

The  jury  found  Jarvis  guilty,  adding  that  they  so  found  upon  his  own 
confession,  but  they  thought  that  confession  prompted  by  the  inquiries 
put  to  him.  They  acquitted  the  other  two.  At  the  request  of  counsel 
for  Jarvis  I  reserved  for  the  Court  for  the  consideration  of  Crown 
Cases  Reserved  the  question, — Whether  I  ought  to  have  admitted  the 
statements  of  the  prisoner  in  evidence  against  him? 

Kelly,  C.  B.  While  it  is  our  duty  to  watch  with  a  jealous  cau- 
tion the  rules  of  law  as  to  inducements  to  confess,  for  the  sake  of  pub- 
lic justice  we  must  not  allow  consideration  for  prisoners  to  interfere 
with  the  rules  or  decisions  of  courts  of  law.  In  this  case,  do  the 
words  fairly  considered  import  either  a  threat  of  evil  or  a  promise  of 
good  ?  They  are  these :  "Jarvis,  I  think  it  is  right  that  I  should  tell  you 
that,  besides  being  in  the  presence  of  my  brother  and  myself,  you  are 
in  the  presence  of  two  officers  of  the  police ;  and  I  should  advise  you 
that  to  any  question  that  may  be  put  to  you  you  will  answer  truth- 
fully." Pausing  at  these  words,  they  would  seem  to  operate  as  a 
warning  rather  than  a  threat,  as  advice  given  by  a  master  to  a  serv- 
ant. What  follows? — "So  that,  if  you  have  committed  a  fault,  you  may 
not  add  to  it  by  stating  what  is  untrue."  These  words  appear  to  have 
been  added  on  moral  grounds  alone;  there  was  no  inducement  of 
advantage.  Under  these  circumstances,  putting  no  strain  one  way  or 
the  other,  the  words  amount  only  to  this :  "We  put  certain  questions 
to  you ;  I  advise  you  to  answer  truthfully,  only  that  you  may  not  add 
a  fault  to  an  offence  committed,  if  any  has  been  committed."  With 
reference  to  the  last  words,  "Take  care;  we  know  more  than  you 
think  we  know" — these  amount  only  to  a  caution.  The  words,  "You 
had  better  tell  the  truth,"  seem  to  have  acquired  a  sort  of  technical 
meaning  importing  either  a  threat  or  a  benefit;    but  they  were  not 


542  HEARSAY  (Ch.  3 

used  in  this  case.  The  words  that  have  been  used  import  only  advice 
on  moral  grounds. 

WiLLES,  J.  The  case  would  have  been  different,  if  it  had  appeared 
that  the  words  used  were,  "It  is  better  for  you  to  tell  the  truth." 

Conviction  affirmed. 


STATE  v.  BROUGHTON. 

(Supreme  Court  of  North  Carolina,  1S46.     29  N.  C.  96,  45  Am.  Dec.  507.) 

Appeal  from  the  Superior  Court  of  Law  of  New  Hanover  County, 
at  the  Fall  Term,  1846,  his  Honor  Judge  Settle,  presiding. 

The  prisoner  was  indicted  for  the  murder  of  Frank  De  Silva. 
The  homicide  occurred  in  Wilmington,  during  the  term  of  New  Han- 
over Superior  Court,  and  the  grand-jury  then  empannelled  were  en- 
gaged in  an  enquiry  as  to  the  circumstances,  character,  and  perpetra- 
tor of  the  act.  At  the  instance  of  the  grand  jury,  Broughton  was  sum- 
moned and  sworn  in  Court  and  sent  to  them  as  a  witness.  On  the  trial 
of  the  present  indictment  Mr.  Savage,  who  was  at  the  time  the  fore- 
man of  the  grand-jury,  was  called,  as  a  witness  for  the  State,  to  prove 
that  the  prisoner,  on  his  examination  before  the  grand- jury  on  that 
occasion,  charged  one  Gonzales  with  the  murder  of  De  Silva.  The 
counsel  for  the  prisoner  objected  to  the  examination  of  Mr.  Savage, 
as  to  any  matter  that  occurred  before  the  grand-jury.  But  the  Court 
received  the  witness  for  the  purpose,  to  which  he  was  called ;  and  he 
stated  that  the  prisoner  charged  Gonzales  with  murder  and  betrayed 
unusual  anxiety  to  fix  it  upon  him.^^ 

RuFFiN,  C.  J.  *  *  *  The  counsel  for  the  prisoner  took  the  fur- 
ther ground  here,  that  it  was  incompetent  to  prove  the  evidence  of  the 
prisoner,  because  it  was  in  the  nature  of  a  confession,  which,  compelled 
by  an  oath,  was  not  voluntary.  It  is  certainly  no  objection  to  the  evi- 
dence, merely,  that  the  statement  of  the  prisoner  was  given  by  him,  as 
a  witness  under  oath.  He  might  have  refused  to  answer  questions, 
when  he  could  not  do  so  without  criminating  himself;  and  the  very 
ground  of  that  rule  of  law  is,  that  his  answers  are  deemed  voluntary 
and  may  be  used  afterwards  to  criminate  or  charge  him  in  another 
proceeding,  and  such  is  clearly  the  law.  2  Stark.  28;  Wheater's  case,  2 
Mood.  Cr.  Cas.  45.  But  it  is  true,  that  if  a  prisoner,  under  examina- 
tion as  to  his  own  guilt,  be  sworn,  his  statement  is  not  evidence;  be- 
cause the  statute,  Rev.  Stat.  ch.  35,  §  1,  (which  is  taken  from  that  of 
Phil,  and  M.)  intended  to  have  the  party  free  to  admit  or  deny  his 
guilt,  and  the  oath  deprives  him  of  that  freedom — 2  Hawk.  PI.  6,  ch. 
46,  §  37 ;  Bul.  N.  P.  242.  And  we  think  it  was  also  properly  decided 
in  Lewis'  case,  C,  C.  &  P.  161,  where  a  magistrate  was  engaged  in 
the  investigation  of  a  felony,  and  no  one  in  particular  was  then  charged 

11  Statement  condensed  and  part  of  opiuiou  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS.  543 

with  It,  and  the  prisoner  and  other  persons  were  summoned  and  sworn 
as  witnesses,  and  the  prisoner  gave  evidence,  upon  which  he  was  com- 
mitted for  trial,  that  his  examination  was  not  admissible  against  him. 
For  plainly  it  was  a  case  within  the  reason  of  the  statute;  which 
could  be  completely  evaded,  if,  instead  of  a  direct  examination  of  a 
suspected  person,  there  could  be  a  general  inquisition  and  eveiy  in- 
dividual made  to  betray  himself.  For  that  reason  the  Court  would,  in 
this  case,  have  held,  that  the  evidence  given  by  the  prisoner  could  not 
have  been  used  against  him,  if  it  purported  to  confess  his  guilt  and  the 
grand-jury  had  founded  a  presentment  on  it ;  for  the  proceeding  before 
the  grand-jury  at  the  time  was  in  its  nature  inquisitorial  and  the  wit- 
ness was  as  much  the  object  of  it  as  any  other  person.  But  it  is  al- 
together a  mistake  to  call  this,  evidence  of  a  confession  by  the  prisoner. 
It  has  nothing  of  that  character.  It  was  not  an  admission  of  his  own 
guilt,  but,  on  the  contrary,  an  accusation  of  another  person.  That  it 
was  preferred  on  oath  in  no  way  detracts  from  the  inference,  that 
may  be  drawn  from  it  unfavourably  to  the  prisoner,  as  being  a  false 
accusation  against  another,  and  thus  furnishing,  with  other  things,  an 
argument  of  his  own  guilt. 

There   was,  in  our  opinion,   no  error   in   receiving  the   evidence. 

*         *         *   12 


COMMONWEALTH  v.  MOREY. 
(Supreme  Judicial  Court  of  Massachusetts,  1854.    1  Gray,  461.) 

Indictment  for  breaking  and  entering  in  the  night  the  shop  of  An- 
son Chapm.an  in  Westhampton,  and  there  stealing  bank  bills  and  silver 
coin. 

At  the  trial  in  the  court  of  common  pleas,  before  Mellen,  J.,  "Chap- 
man, being  called  as  a  witness  for  the  Commonwealth,  and  to  prove 
certain  confessions  of  the  defendant,  testified  that  after  the  defendant 
M^as  arrested  and  committed  on  his  complaint,  and  before  the  ex- 
amination, he  visited  him  at  the  jail  alone,  and  told  him  he  supposed 
he  knew  what  he  came  for;  the  defendant  replied  that  he  did;  that  he 
then  said  to  him,  that  if  he  wished  for  any  conversation,  he  could 
have  a  chance :  that  the  defendant  made  no  reply  for  the  minute  or 
two ;  that  he  then  told  him  he  thought  it  was  better  for  all  concerned 
in  all  cases  for  the  guilty  party  to  confess;  that  the  prisoner  then 
said  he  supposed  he  should  have  to  stay  there  whether  he  confessed 

12  See.  also.  People  v.  Molineux,  168  X.  T.  330,  61  N,  E.  286.  62  L.  R.  A.  193 
(1901),  discriminating  between  a  violation  of  the  defendant's  privilege  against 
self-incrimination,  by  compelling  him  to  testify,  and  the  use  of  his  voluntary 
testimony  as  a  mere  witness. 

Compare  State  v.  Young,  119  Mo.  495,  24  S.  W.  1038  (1894)  where  certain 
admissions  were  obtained  from  the  suspected  party  on  his  examination  at  the 
coroner's  inquest. 

State  V.  Blackburn,  273  Mo.  469,  201  S.  W.  90  (1918). 


544  '  HEARSAY  (Ch.  3 

or  not ;  that  the  prosecutor  replied  he  supposed  he  would,  and  in  his 
opinion  it  would  make  no  difference  as  to  legal  proceedings,  and  that 
it  was  considered  honorable  in  all  cases,  if  a  person  was  guilty,  to 
confess."  The  district  attorney  then  proposed  to  prove  the  confes- 
sions of  the  defendant  made  immediately  after,  to  which  the  defend- 
ant objected  as  incompetent,  but  they  were  admitted  by  the  judge.  To 
this  admission  the  defendant,  being  convicted,  alleged  exceptions. 

Shaw,  C.  J.  The  ground  on  which  confessions  made  by  a  party 
accused,  under  promises  of  favor,  or  threats  of  injury,  are  excluded 
as  incompetent,  is,  not  because  any  wrong  is  done  to  the  accused, 
in  using  them,  but  because  he  may  be  induced,  by  the  pressure  of 
hope  or  fear,  to  admit  facts  unfavorable  to  him,  without  regard  to 
their  truth,  in. order  to  obtain  the  promised  relief,  or  avoid  the  threat- 
ened danger,  and  therefore  admissions  so  obtained  have  no  just  and 
legitimate  tendency  to  prove  the  facts  admitted.  The  general  rule  is 
well  expressed  in  the  passage,  cited  in  the  argument,  from  the  case  of 
State  V.  Grant,  22  Me.  171.  "To  exclude  the  confession,  there  must 
appear  to  have  been  held  out  some  fear  of  personal  injury,  or  hope 
of  personal  benefit,  of  a  temporal  nature."  Of  course,  such  induce- 
ment must  be  held  out  to  the  accused  by  some  one,  who  has,  or  who 
is  supposed  by  the  accused  to  have,  some  power  or  authority  to  as- 
sure to  him  the  promised  good,  or  cause  or  influence  the  threatened 
injury.  Commonwealth  v.  Taylor,  5  Cush.  606.  The  general  rule  of 
law  seems  sufficiently  plain  and  clear,  but  the  great  variety  of  facts 
and  circumstances,  attending  particular  cases,  renders  the  application 
difficult,  and  each  case  must  depend  much  on  its  own  circumstances. 
In  the  present  case,  we  think  the  decision  was  right,  on  the  facts 
stated,  and  the  confessions  admissible. 

Exceptions  overruled.^' 


.  MILLER  et  al.  v.  PEOPLE. 
(Supreme  Court  of  Illinois,  1S66.     39  111.  457.) 

On  writ  of  error  to  review  the  conviction  of  the  defendants,  IMiller, 
Francis,  and  Barrett,  on  a  charge  of  robbery.^* 

Mr.  Justice  BrEESE.  *  *  *  The  record  shows  the  confession  of 
Francis  was  extorted  from  him  by  a  high-handed  act  of  violence  and 

1 8  Brown,  J.,  In  State  v.  Powell,  258  Mo.  239, 167  S.  W.  559  [1914] :  "  •  *  • 
What  is  necessary  to  render  a  confession  involuntary  doix-nfls,  lo  a  large  ex- 
tent, upon  the  person  from  whom  such  confession  is  ol)taincd.  Tiio  age.  sex, 
disF)Osition  and  past  experience  of  the  jiarty  must  necessarily  bo  considered. 
2  Wharton's  Criminal  Evidence  (10th  Ed.)  p.  1320;  12  Cj^c.  404;  State  v. 
Brof  kinan,  40  Mo.  506  [1870]." 

The  tendency  to  treat  the  problem  as  purely  a  question  of  fact  may  account 
for  tile  extreme  decision  in  Com.  v.  Kii;ii)p,  10  Pick.  477,  20  Am.  Dec.  5.34 
(l.s:',0),  wliere  the  confession  was  made  after  a  promise  of  immunity  for  turn- 
ing state's  evidence,  and  was  afterwards  used  against  the  prisoner  when  he 
refused  to  testify  against  the  others. — Ed. 

I*  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  54i3 

wrong,  and  under  circumstances  of  unusual  cruelty.  At  about  mid- 
night, he  was  taken  from  his  home  by  a  body  of  armed  and  disguised 
men  to  a  neighboring  wood,  and  there  hung  upon  a  tree  by  the  neck, 
when,  taken  down  almost  senseless,  he  confessed  that  he,  with  the 
other  prisoners  charged,  committed  the  robbery,  and  detailed  the  cir- 
cumstances. 

The  rule  has  been  long  settled  in  our  law  that,  whilst  a  free  and 
voluntary  confession  of  guilt  is  of  the  highest  order  of  evidence,  one 
extorted  is  never  received.  Unlike  the  laws  of  the  polished  and 
learned  Roman,  the  cruel  provisions  of  which  allowed  criminals  and 
even  witnesses  in  some  cases,  to  be  put  to  the  torture,  for  the  pur- 
pose of  forcing  a  confession,  ours,  in  most  commendable  contrast, 
are  fashioned  in  a  spirit  more  just  and  humane. 

The  confession  of  Francis,  against  objections,  should  not  have  gone 
to  the  jury.     *     *     * 

Judgment  reversed. 


STATE  V.  JONES. 

(Supreme  Court  of  Missouri,  1874.     54  Mo.  478.) 

Wagner,  Judge,  delivered  the  opinion  of  the  court. 

The  only  question  at  all  important  to  be  considered  in  this  case  is, 
whether  the  confession  made  by  the  defendant  was  properly  admitted 
in  evidence  against  him.  From  the  record  it  appears,  that  the  defend- 
ant, with  several  others,  was  indicted  for  killing  one  Hildebrand  in 
Moniteau  County. 

A  short  time  after  the  commission  of  the  murderous  act,  the  de- 
fendant was  arrested  in  Miller  County.  He  denied  all  knowledge  of 
the  crime,  and  the  party,  in  whose  possession  he  was,  hung  him  twice 
by  the  neck,  and  extorted  a  statement  from  him  in  regard  to  the  mur- 
der. He  was  then  taken  back  to  Moniteau  County,  and  when  he  arrived 
in  California,  the  county  seat  of  that  county,  and  whilst  he  was  sitting 
on  his  horse,  one  Hickox  went  up  to  him  and  shook  hands  with 
him,  and  told  him  that  he  was  sorry  to  see  him  in  the  fix  that  he  was 
in.  The  prisoner  said  that  he  had  done  nothing.  Hickox  then  told 
him  that  he  was  afraid  he  was  in  a  very  bad  fix,  because  Blankenship 
(who  was  alleged  to  be  a  participator  in  the  crime)  had  said,  that  the 
prisoner  and  two  other  men  had  come  to  his  house,  and  forced  him  to 
pilot  them  through  the  prairie  to  Hildebrand's  house,  and  therefore  the 
prisoner  must  be  the  murderer.  The  prisoner  then  asked  Hickox,  did 
he  say  that?  And  Hickox  replied,  that  he  did,  and  that  he,  the  pris- 
oner, must  know  whether  it  was  true  or  not.  The  parties  then  separat- 
ed, and  afterwards  the  prisoner  sent  for  Hickox  to  come  and  see  him 

HiNT.Ev.— 35 


54G  HEARSAY  (Ch,  3 

in  the  back  room  of  a  store-house,  where  he  was  confined.  He  tlien 
said  to  Hickox,  that  Blankenship  had  betrayed  them,  that  he  had  made 
up  his  mind  to  tell  the  whole  thing,  and  he  then  made  a  detailed  confes- 
sion of  all  the  facts  relating  to  the  murder. 

Before  a  confession  can  be  received  in  evidence  in  a  criminal  case, 
it  must  be  shown  that  it  was  voluntary.  And  a  promise  of  benefit  or 
favor,  or  threat  of  intimidation  or  disfavor,  held  out  by  the  person 
having  authority  in  the  matter,  will  be  sufficient  to  exclude  a  confession, 
made  in  consequence  of  such  inducement,  either  of  hope  or  fear.  State 
v.  Brockman,  46  Mo.  566. 

In  this  case,  Hickox,  the  person  to  whom  the  confession  was  made, 
was  a  private  citizen,  had  no  authority  in  the  matter,  nor  does  it  ap- 
pear that  any  threats  or  inducements  were  held  out  from  any  source  to 
obtain  the  confession.  It  is  true,  that  on  the  preceding  day  the  prisoner 
had  been  brutally  treated ;  but  that  had  been  done  by  a  different  party, 
and  it  is  not  shown,  that  any  of  them  were  present  exerting  any  influ- 
ence when  the  confession  to  Hickox  was  made. 

Where  a  confession  has  once  been  obtained  by  means  of  hope  or 
fear,  confessions  subsequently  made  are  presumed  to  come  from  the 
same  motive ;  and,  if  it  is  not  shown  that  the  original  influences  have 
ceased  to  operate,  they  are  inadmissible.  1  Whart.  Crim.  Law,  §  594; 
Roscoe  Crim.  Ev.,  45;  Peter  v.  State,  4  Smedes  &  M.  (Miss.)  31; 
Com.  V.  Harman,  4  Pa.  269 ;  Van  Buren  v.  State,  24  Miss.  512. 

The  cases  above  cited  show,  tliat  in  each  instance  the  prisoners  were 
intimidated,  and  under  the  influence  of  threats  made  the  confessions 
before  the  magistrate  when  they  were  being  examined,  and  the  subse- 
quent confessions  were  made  before  the  same  magistrates  upon  the 
basis  of  the  first  ones.  As  the  magistrates  were  persons  in  authority, 
and  were  regarded  as  having  the  prisoners  in  their  power,  it  would  be 
necessar}'  to  show,  that  the  fear,  under  which  the  first  confession  was 
made,  had  ceased  before  the  second  one  could  be  received.  The  pre- 
sumption would  be,  that  under  all  the  surroundings  it  was  not  volun- 
tarily made,  and  that  presumption  would  have  to  be  removed  by  evi- 
dence. I  can  find  no  authority,  however,  for  the  rejection  of  the  con- 
fession in  the  case  now  under  consideration.  It  was  not  made  to  any 
of  the  parties  who  had  previously  been  guilty  of  inflicting  the  outrage 
on  the  prisoner.  It  was  made  without  solicitation,  and  without  any 
inducement  being  held  out,  after  the  prisoner  had  considered  the  mat- 
ter and  come  to  the  determination  to  make  a  full  disclosure.  Hickox 
had  no  authority  or  power  in  the  case,  and  was  incapable  of  rendering 
any  favor  or  relief  by  virtue  of  official  position.  Of  all  this  the  de- 
fendant was  well  aware,  and  nothing  was  said  to  him  to  produce  a  con- 
trary belief.  He  was  impressed  with  the  idea,  that  Blankenship  had 
betrayed  him,  and  therefore  he  considered  that  he  might  as  well  tell 
the  whole  truth.  Whether  Blankenship  had  made  the  disclosure  and 
exposed  the  crime,  is  of  no  importance. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  547 

Had  it  been  a  mere  artifice/"  the  case  would  not  be  altered;  as  no 
objection  can  be  taken  because  the  confession  was  made  under  a  mis- 
taken supposition,  that  some  of  the  defendant's  accomplices  were  in  cus- 
tody, or  that  they  had  divulged  the  facts  in  relation  to  the  crime,  and 
this  would  be  so,  even  though  the  suppositions  were  created  by  arti- 
fice, with  a  view  to  obtain  the  confession.  1  Whart.  Crim.  Law,  §  691 ; 
Roscoe's  Crim.  Ev.  47;  R.  v.  Burley,  2  Stark.  Ev.  12n. ;  1  Phil.  Ev. 
164;  2  Russ.  Cr.  845. 

Under  every  view  that  we  have  been  able  to  take  of  the  case,  the 
confession  seems  to  have  been  entirely  voluntary.  It  was  made  with- 
out any  threats,  fears  or  hopes.  Not  only  so,  but  it  was  made  without 
solicitation  emanating  from  any  source.  The  prisoner  sent  for  Hickox, 
asked  for  the  interview,  and  said,  that,  after  thinking  over  the  matter, 
he  had  concluded  to  divulge  the  whole  truth.  There  is  here  an  utter  ab- 
sence of  all  the  tests  which  would  warrant  the  exclusion  of  the  confes- 
sion. I  think  it  was  properly  admissible  in  evidence,  and  that  the  court 
did  not  err  in  permitting  it  to  be  received. 

The  prisoner  was  convicted  of  murder  in  the  second  degree,  and 
sentenced  to  the  penitentiary,  and  the  judgment  of  the  court  below  is 
aiBrmed.     The  other  judges  concur. 


STATE  V.  HARRINGTON. 

(Supreme  Court  of  Missouri,  in  Banc,  1906.     198  Mo.  23,  95  S.  W.  235.) 

Fox,  J.^®  *  *  *  15.  It  is  insisted  by  appellant  that  the  court 
committed  error  in  the  admission  of  the  statements  and  admission  of 
defendant  while  under  arrest.  Upon  this  proposition  the  record  dis- 
closes that  the  jury  was  excluded  and  many  witnesses  heard  by  the 
court  in  laying  the  proper  foundation  for  the  introduction  of  such 
statements.  The  court  heard  this  testimony,  and  determined  that  the 
statements  were  voluntary,  hence,  admitted  them.  With  the  excep- 
tion of  the  testimony  of  the  defendant  the  evidence  tended  strongly 
to  show  that  there  were  no  promises  or  threats  made  as  an  inducement 
to  making  the  statements  offered  in  evidence.  The  mere  fact  that  the 
defendant  was  in  charge  of  an  officer  does  not  render  any  statements 
that  he  may  make  inadmissible,  if  it  appears  that  they  were  not  induced 
by  threats  or  promises  of  reward  or  the  hope  thereof,  nor  does  the 
fact  that  the  statements  of  the  defendant  were  elicited  by  questions 
put  to  him  by  an  officer  or  private  persons  render  tliem  inadmissible, 

15  The  rule  appears  to  be  the  same  where  the  deception  was  practiced  by 
those  having  the  prisoner  in  cliarge,  as  in  Com.  v.  Cressinger,  193  Pa.  3126.  44 
Atl.  433  (1899),  where  the  defendant  was  made  to  believe  that  his  knife  had 
been  found  at  the  place  where  the  crime  had  been  committed.  For  a  collec- 
tion of  the  cases  on  this  and  related  points,  see  note  in  IS  L.  R.  A.  (N.  S.) 
&40  (1902). 

18  Part  of  opinions  omitted. 


548  HEARSAY  (Ch.  3 

nor  is  it  any  sufficient  ground  of  objection  that  the  questions  pro- 
pounded to  the  defendant  by  those  seeking  a  statement  from  liim  as- 
sumed his  guilt,  or  that  he  was  not  warned. that  his  statements  would 
be  used  against  him.  Kelley's  Crim.  Law,  pp.  180,  181 ;  State  v.  Jones, 
54  Mo.  478 ;  State  v.  Phelps,  74  Mo.  128 ;  State  v.  Northway,  164  Mo. 
513,  65  S.  W.  331;  State  v.  McClain,  137  Mo.  307,  38  S.  W.  906; 
State  V.  Rush.  95  Mo.  199,  8  S.  W.  221;  State  v.  Guy,  69  Mo.  430; 
State  V.  Shackelford,  148  Mo.  493,  50  S.  W.  105  *  *  * 
•  Valliant,  J.  (dissenting).  *  *  *  Jn  the  oiden  times  to  which  I 
have  already  alluded  when  one  suspected  of  a  crime  was  arrested,  he 
was  put  to  the  torture  and  broken  piece  by  piece  until  the  confession 
came:  whether  guilty  or  not  guilty,  the  confession  usually  came.  We 
have  advanced  many  milestones  from  that  station,  we  no  longer  break 
them  on  the  wheel,  we  now  only  "sweat"  them,  and  some  of  these  days 
we  will  advance  beyond  that  station.  When  this  man  was  arrested 
he  was  taken  to  the  office  of  the  chief  of  detectives  and  from  9  o'clock 
in  the  evening  until  2  o'clock  in  the  morning  he  was  subjected  to  what 
the  witness  for  the  state  called  "a  course  of  sweating."  According 
to  testimony  in  his  behalf  all  the  technical  skill  and  ingenuity  of  the 
most  experienced  experts,  bore  upon  him  to  entrap  him  into  saying 
something  that  would  be  evidence  against  himself.  There  was  no 
threat,  no  promise,  oh  no,  in  fact  the  prisoner  was  expressly  told  that 
they  would  make  no  threat,  they  would  make  no  promise,  he  was  en- 
tirely free  to  answer  or  not  as  he  might  elect,  yet  free  as  he  was,  the 
sweating  process  went  on  until  at  length  his  nerves  gave  way,  he 
broke  down,  and  wept.  What  he  said  on  that  occasion  was  given  in 
evidence  by  the  state,  and  the  court  in  its  instruction  to  the  jury  on  that 
point  said :  "What  the  defendant  said  against  himself,  if  anything,  the 
law  presumes  to  be  true  because  said  against  himself.  What  he  said 
for  himself  you  are  not  bound  to  believe  because  said  in  a  statement  or 
statements  proved  by  the  state,  but  you  may  believe  it  or  disbelieve  it 
as  is  shown  to  be  true  or  false  as  shown  by  all  the  evidence  in  the 
case."  I  am  not  going  now  to  contend  that  that  testimony  was  illegal 
because  although  we  have  advanced  beyond  the  rack  and  the  wheel  we 
still  cling  to  the  "sweating  process."  But  I  do  contend  that  testi- 
mony so  obtained  should  not  be  given  to  the  jury  with  the  stamp  of  the 
legal  presumption  of  absolute  truth  upon  it.  The  jury  could  not  have 
understood  the  instruction  to  mean  anything  else  than  that  what  the 
prisoner  said  that  might  be  construed  as  tending  to  incriminate  him- 
self was  to  be  taken  as  gospel  truth,  while  what  he  said  which  tends 
to  exculpate  him  is  to  be  received  with  caution,  and  believed  or  dis- 
believed as  the  other  evidence  in  the  case  might  warrant.  Not  only 
does  the  court  by  that  instruction  invade  the  province  of  the  jury  who 
alone  are  entitled  to  weigh  the  evidence  and  determine  the  credibility 
of  the  witness,  whether  he  be  the  party  in  interest  or  not,  but  it  fails  to 
distinguish  between  what  all  the  law  writers  on  the  subject  call  solemn 


Sec.  2)  RECOGNIZED   EXCEPTIONS  549 

admissions  that  is  admissions  in  judicio,  or  admissions  extra  judicium 
which  have  been  made  to  influence  the  conduct  of  others,  and,  there- 
fore, worked  an  estoppel,  and  mere  verbal  admissions.  Those  of  the 
first  class  are  presumed  in  law  to  be  true.  1  Greenleaf  on  Ev.  §  27, 
while  those  of  the  second  class  should  be  received  with  caution.  Id.  § 
45.  And  in  section  200  the  author  says :  "With  respect  to  all  verbal 
admissions,  it  may  be  observed  that  they  ought  to  be  received  with  great 
caution."  ♦  *  * 
Judgment  affirmed.^' 


AMMONS  V.  STATE. 

(Supreme  Court  of  Mississippi.  1902.     SO  Miss.  502.  32  South.  9,  18  L.  R.  A. 

[N.  S.]  768,  92  Am.  St  Rep.  607.) 

Ammons,  appellant,  was  indicted,  tried,  and  convicted  of  burglary. 
On  the  trial  certain  confessions  of  the  defendant,  obtained  by  the 
aid  of  a  sweat  box  in  the  manner  mentioned  in  the  opinion  of  the 
court,  were  offered  in  evidence  against  defendant  over  his  objection. 
Without  the  confessions  there  was  not  sufficient  evidence  to  support 
the  verdict.  From  the  conviction  the  defendant  appealed  to  the  su- 
preme court,  assigning  as  error  the  admission  of  the  confessions. 

Calhoon,  J.  The  chief  of  poHce  testifi.ed  that  the  accused  made  to 
him  a  "free  and  voluntary"  statement.  The  circumstances  under 
which  he  made  it 'were  these:  There  was  what  was  known  as  a 
"sweat  box"  in  the  place  of  confinement.  This  was  an  apartment 
about  five  or  six  feet  one  way  and  about  eight  feet  another.  It  was 
kept  entirely  dark.  For  fear  that  some  stray  ray  of  light  or  breath 
of  air  might  enter  without  special  invitation,  the  small  cracks  were 
carefully  blanketed.  The  prisoner  was  allowed  no  communication 
whatever  with  human  beings.  Occasionally  the  officer,  who  had  him 
put  there,  would  appear,  and  interrogate  him  about  the  crime  charged 
against  him.  To  the  credit  of  our  advanced  civilization  and  human- 
ity it  must  be  said  that  neither  the  thumbscrew  nor  the  wooden  boot 
was  used  to  extort  a  confession.  The  efficacy  of  the  sweat  box  was 
the  sole  reliance.  This,  with  the  hot  weather  of  summer,  and  the 
fact  that  the  prisoner  was  not  provided  with  sole  leather  lungs,  finally, 
after  "several  days"  of  obstinate  denial,  accomplished  the  purpose  of 
eliciting  a  "free  and  voluntary"  confession.  The  officer,  to  his  credit, 
says  he  did  not  threaten  his  prisoner,  that  he  held  out  no  reward  to 
him,  and  did  not  coerce  him.  Everything  was  "free  and  voluntary." 
He  was  perfectly  honest  and  frank  in  his  testimony,  this  officer  was. 
He  was  intelligent,  and  well  up  in  the  law  as  applied  to  such  cases, 
and  nothing  would  have  tempted  him.  we  assume,  to  violate  any 
technical  requirement  of  a  valid  confession, — no  threats,  no  hope  of 

IT  But  see  State  v.  Powell,  258  5Io.  239,  167  S.  W.  559  (1914). 


550  HEARSAY  (Ch.  3 

reward,  no  assurance  that  it  would  be  better  for  the  prisoner  to  con- 
fess. He  did  tell  him,  however,  "that  it  would  be  best  for  him  to  do 
what  was  right,"  and  that  it  "would  be  better  for  him  to  tell  the  truth." 
In  fact,  this  was  the  general  custom  in  the  moral  treatment  of  these 
sweat-box  patients,  since  this  officer  says,  "I  always  tell  them  it  would 
be  better  for  them  to  tell  the  truth,  but  never  hold  out  any  inducement 
to  them."  He  says,  in  regard  to  the  patient  Ammons,  "I  went  to  see 
this  boy  every  day,  and  talked  to  him  about  the  case,  and  told  him 
it  would  be  better  for  him  to  tell  the  truth ;  tell  everything  he  knew 
about  the  case."  This  sweat  box  seems  to  be  a  permanent  institution, 
invented  and  used  to  gently  persuade  all  accused  persons  to  voluntarily 
tell  the  truth.  Whenever  they  do  tell  the  truth, — that  is,  confess  guilt 
of  the  crime, — they  are  let  out  of  the  sweat  box.  Speaking  of  this 
apartment,  and  the  habit  as  to  prisoners  generally,  this  officer  says, 
"We  put  them  in  there  [the  sweat  box]  when  they  don't  tell  me  what 
I  think  they  ought  to."  This  is  refreshing.  The  confession  was  not 
competent  to  be  received  as  evidence.  6  Am.  &  Eng.  Enc.  Law,  p. 
531,  note  3;  Id.  p.  550,  note  7;  Hamilton  v.  State,  17  Miss.  675,  27 
South.  606;  Simon  v.  State,  37  Miss.  288.  Defendant,  unless  de- 
mented, understood  that  the  statement  wanted  was  confession,  and 
that  this  only  meant  release  from  this  "black  hole  of  Calcutta."  Such 
proceedings  as  this  record  discloses  cannot  be  too  strongly  denounced. 
They  violate  every  principle  of  law,  reason,  humanity,  and  personal 
right.  They  restore  the  barbarity  of  ancient  and  medieval  methods. 
They  obstruct,  instead  of  advance,  the  proper  ascertainment  of  truth. 
It  is  far  from  the  duty  of  an  officer  to  extort  confession  by  punish- 
ment. On  the  contrary,  he  should  warn  his  prisoner  that  every  state- 
ment he  may  choose  to  make  may  be  used  against  him  on  his  trial. 
Reversed  and  remanded.^* 


STATE  v.  POWELL. 

(.Supreme  Court  of  Missouri,  Divisiou  No.  2,  1U14.    258  Mo.  2.39,  167  S.  W.  559.) 

Brown,  J.  *  *  *  ^°  It  will  be  observed  that  the  written  con- 
fession implicates  defendant's  brothers  Halsey  and  Cottrel  Powell  as 
participating  in  the  robbery  and  murder  committed  at  the  Missouri 
Pacific  freight  office.  According  to  that  confession,  Halsey  Powell 
was  present  and  told  defendant  just  before  the  robbery  to  come  over 
to  his  mother's  house  that  night  and  get  some  of  the  money  (which  they 
were  going  to  secure  by  the  robbery).  At  the  trial  defendant  attempted 
to  prove  by  said  Halsey  Powell,  and  by  three  white  employes  of  the 
Union  Pacific  Railroad  Company,  that  said  Halsey  Powell  was  a  mile 

J«  Ap[)rovf(l  aiid  ruli'  ;ipi)lio(l  in  Pooi)Io  v.  Brockett,  lOl  Mir-li.  1(!0,  IHl  N. 
W.  901  (1917),  wliere  siniilur  uielhods  were  u.sed  to  obtuiu  u  (.•oures.sion  from 
u  boy. 

i»  I'art  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  551 

and  a  quarter  distant  from  the  scene  of  the  robbery  and  murder  just 
one  minute  before  those  crimes  were  committed  deHvering  some  way- 
bills to  the  yardmaster  and  other  employes  of  said  Union  Pacific  Rail- 
road Company,  and  therefore  could  not  have  been  present  at  the  com- 
mission of  the  crime,  as  recited  in  defendant's  confession.  Upon  ob- 
jection by  the  state,  this  proffered  evidence  was  excluded,  to  which 
ruling  defendant  duly  saved  his  exceptions.     *     *     * 

Regarding  the  exclusion  of  the  evidence  tending  to  prove  that  parts 
of  the  confession  were  untrue  offered  by  defendant  for  the  purpose  of 
impeaching  or  throwing  discredit  upon  said  confession,  we  have  not 
found,  nor  has  the  Attorney  General  cited  us  to,  any  law  which  sus- 
tains the  ruling  of  the  trial  court. 

In  the  case  of  Jaynes  v.  People,  44  Colo.  535,  99  Pac.  325,  16  Ann. 
Cas.  787,  the  authorities  on  this  point  are  collated  and  reviewed  at 
length ;  and  in  that  case  it  was  expressly  held  that  a  confession  recit- 
ing that  defendant  procured  poison  at  a  certain  establishment,  with 
which  he  feloniously  poisoned  a  horse,  might  be  impeached  by  proof 
that  the  establishment  where  defendant  claimed  to  have  obtained  the 
poison  never  kept  or  sold  the  same.    • 

The  case  of  People  v.  Fox,  50  Hun,  604,  3  N.  Y.  Supp.  359,  was 
very  much  like  the  one  at  bar.  In  that  case  the  defendant  made  an 
affidavit  that  he  and  four  other  parties  committed  a  robbery,  and, 
when  this  affidavit  was  introduced  against  him,  he  offered  to  im- 
peach the  same  by  evidence  that  the  four  other  men  named  in  the 
affidavit  did  not  participate  in  the  crime.  In  holding  that  this  evi- 
dence was  competent  and  should  have  been  admitted,  the  Supreme 
Court  of  New  York  said :  "Now  it  is  quite  correct  to  say  that  the 
confession  may  be  false  in  every  other  particular,  and  yet  it  may  be 
true  that  defendant  participated  in  the  robbery.  But  the  question 
here  is  whether  the  defendant  may  not  give  evidence  tending  to  dis- 
prove an  alleged  fact,  of  which  the  people  have  given  proof  against 
him.  Certainly,  when  one  side  gives  evidence  tending  to  prove  a 
fact,  the  other  side  may  give  evidence  to  the  contrary.  The  people 
had  given  evidence  tending  to  show  that  these  five  persons,  together, 
had  committed  the  alleged  crime.  Could  not  the  defendant  show  that 
four  of  them  were  not  there,  and  did  not  commit  it,  especially  since 
the  crime  could  not  have  been  committed  by  one  alone?  If  the  de- 
fendant had  made  a  confession  that  he  alone  went  to  Plank's,  and 
tied  him  and  his  boy,  and  robbed  the  house,  such  a  confession,  under 
the  other  testimony,  would  have  received  no  credit.  But  he  makes  a 
confession  of  a  transaction  not  improbable  on  its  face.  And  evidence 
is  offered  tending  to  show  that  statements  in  that  confession  are  not 
true ;  and  tliese  are  such  statements,  furthermore,  that,  if  they  are 
not  true,  then  the  truth  of  the  confession  becomes  doubtful." 

This  decision  was  affirmed  by  the  New  York  Court  of  Appeals,  121 
N.  Y.  449,  24  N.  E.  923. 


552  HEARSAY  (Ch.  3 

A  similar  result  was  reached  by  the  Supreme  Court  of  Pennsylvania 
in  dealing  with  the  same  kind  of  an  issue  in  Commonwealth  v.  Shaffer, 
178  Pa.  409,  loc.  cit.  415,  35  Atl.  924. 

The  exclusion  of  evidence  tending  to  prove  that  Halsey  Powell  was 
not  at  tlie  Missouri  Pacific  freight  office  when  the  robbery  and  murder 
were  committed,  and  therefore  could  not  have  participated  therein, 
was  very  prejudicial  to  defendant.  Defendant  not  only  confessed  that 
Halsey  Powell  was  present  as  one  of  the  active  participants  in  that 
robbery,  but  that  said  Halsey  Powell  had,  on  that  very  occasion,  re- 
quested defendant  to  come  to  the  home  of  his  mother  and  receive  part 
of  the  proceeds  of  the  robbery.  This  part  of  the  confession  was  about 
the  only  evidence  of  motive  on  the  part  of  defendant.  Therefore 
proof  that  Halsey  Powell  was  not  present  and  could  not  have  taken 
part  in  the  crime  would  have  tended  to  rebut  the  evidence  of  motive 
on  the  part  of  defendant,  and  would  also  have  directly  tended  to  prove 
that  the  confession  was  not  voluntarily  made,  for  if  defendant  did 
not  want  to  incriminate  his  brother  Halsey  (as  stated  by  the  officers), 
and  yet  did  incriminate  him,  when  the  latter  was  not  guilty,  this 
would  furnish  the  highest  kind  of  proof  that  the  confession  was  not 
only  involuntary,  but  also  unwortlTv  of  lielief. 

For  the  error  of  the  trial  court  in  admitting  the  written  confession 
of  defendant,  and  in  excluding  evidence  tending  to  impeach  said  con- 
fession after  it  was  admitted,  its  judgment  will  be  reversed,  and  the 
cause  remanded  for  a  new  trial. 

It  is  so  ordered. 


HEIM  v.  UNITED  STATES. 

(Court  of  Appeals  for  the  District  of  Columbia,  1918.     46  Wash.  T.aw  Rep. 

242.) 

Mr.  Justice  Van  Orsdel  delivered  the  opinion  of  the  Court: 

Appellant,  defendant  below,  was  convicted  in  the  Supreme  Court  of 
the  District  of  Columbia  of  the  crime  of  adultery.' 

It  appears  that,  when  arraigned,  defendant  entered  a  plea  of  not 
guilty.  Thereafter,  when  the  cause  came  on  for  trial,  he  appeared  in 
court  with  counsel  who  had  been  representing  him,  but  who  had  ex- 
pressed a  desire  to  withdraw  from  the  case.  The  defendant  asked  the 
court  for  a  continuance  to  enable  him  to  .secure  other  counsel.  The 
request  was  denied,  and  defendant  asked  leave  to  withdraw  his  plea 
of  not  guilty  and  enter  a  plea  of  guilty,  which  was  granted.  Thereaft- 
er, defendant,  through  other  counsel,  moved  the  court  to  strike  from 
the  record  the  plea  of  guilty,  which  motion  was  granted,  and  defend- 
ant was  put  upon  trial. 

In  the  course  of  the  trial,  counsel  for  the  Government  offered  to 
prove  the  plea  of  guilty  by  the  introduction  of  the  docket  entry,  and 
the  clerk  of  the  court  was  called  for  that  purpose.    Defendant  objected 


Sec.  2)  RECOGNIZED   EXCEPTIONS  553 

to  its  admission  "on  the  ground  that  it  was  an  invokintary  confession." 
The  court  overruled  the  objection,  and  the  clerk  was  permitted  to  read 
to  the  jury  the  minutes  showing  the  plea  of  guilty.  This  furnishes  the 
only  assignment  of  error  to  which  it  will  be  necessary  to  give  attention. 

Confessions  belong  in  tv/o  general  classes — judicial  and  extra-judi- 
cial. Judicial  confessions  may  be  divided  into  two  kinds — those  made 
by  way  of  plea  of  guilty,  or  otherwise,  before  a  committing  magistrate, 
and  which  form  a  part  of  the  preliminary  record  upon  which  the  case  is 
sent  to  the  grand  jury  for  indictment ;  and  those  made  by  way  of  plea 
of  guilty  to  an  indictment  or  information  when  the  accused  is  ar- 
raigned in  the  trial  court.  To  the  latter  class  the  confession  before  us 
belongs.  The  objection  here  is  that  the  plea  of  guilty  was  not  volun- 
tarily made.  This  objection  goes  to  the  admissibility  of  the  confession. 
There  is  but  a  single  question  presented,  Is  such  an  admission  of  guilt 
ever  made  under  such  circumstances  as  to  make  it  competent  evidence 
upon  a  trial  under  a  substituted  plea  of  not  guilty? 

A  plea  of  guilty  to  an  indictment  is  made  under  conditions  of  duress 
which  require  die  utmost  discretion  in  receiving  it.  A  defendant  should 
only  be  permitted  to  enter  such  a  plea  after  being  admonished  by  the 
court  as  to  its  consequences.  When  thus  made,  he  waives  the  right 
to  trial  by  jury,  and  solemnly  confesses  the  truth  of  the  charge  made 
in  the  indictment. 

We  are  not  here  concerned  with  the  rules  which  govern  the  admissi- 
bility of  extra-judicial  confessions  or  judicial  confessions  made  be- 
fore a  committing  magistrate,  which  stand  upon  an  entirely  different 
plane  from  the  grade  of  judicial  confessions  we  are  here  considering. 
The  plea  of  guilty  to  an  indictment  amounts  to  a  conviction.  It  is  a 
conclusive  confession  of  the  truth  of  the  charge,  hence  the  admission  of 
such  a  plea  in  the  trial  under  a  substituted  plea  of  not  guilty  if  the  con- 
fession is  to  be  given  the  legal  inferences  which  render  confessions  as 
matter  of  law  admissible,  must  logically  be  sufficient  without  corrobora- 
tion to  sustain  a  verdict  of  guilty.  Matthews  v.  State,  55  Ala.  187; 
State  V.  German,  54  Mo.  526,  14  Am.  Rep.  481. 

Our  attention  has  been  called  to  but  three  instances  in  the  jurispru- 
dence of  this  country  where  a  plea  of  guilty  to  an  indictment  has  been 
used  against  a  defendant  in  the  trial  on  a  substituted  plea  of  not  guil- 
ty to  the  same  indictment.  In  State  v.  Meyers,  99  Mo.  107,  12  S.  W. 
516,  the  defendant,  when  the  indictment  charging  him  with  murder 
was  read  to  him,  in  open  court,  pleaded  guilty.  The  court  refused  to 
receive  the  plea,  which  was  not  recorded,  and  set  the  case  for  trial. 
At  a  subsequent  term  of  the  court  in  the  course  of  the  trial  the  prose- 
cution was  permitted  to  prove  by  the  clerk  of  the  court  and  others 
the  plea  of  guilty  offered  at  the  previous  term  of  the  court.  Holding 
the  evidence  inadmissible,  the  appellate  court  said:  "Such  testimony 
should  not  have  been  admitted.  The  confession  being  what  is  termed 
'a  plenary  judicial  confession,'  that  is  a  confession  made  before  a  tribu- 
nal competent  to  try  him,  was  sufficient  whereon  to  found  a  conviction. 


55-1:  HEARSAY  (Ch.  3 

I  Roscoe,  Crim.  Ev.  (Sth  Ed.)  40.  Consequently,  the  trial  court  might 
have  proceeded  at  once  to  pass  sentence  upon  the  accused.  *  *  * 
Xo  one  would  contend  that,  if  the  plea  of  guilty  had  been  entered  of 
record,  such  plea  could  have  been  received  in  evidence  against  the  de- 
fendant, and  yet  the  same  principle  is  involved  whether  the  plea  ac- 
tually go  upon  record  or  not ;  in  either  case,  it  must,  if  received  in  evi- 
dence, be  conclusive  of  the  defendant's  guilt.  '^  *  *  By  refusing 
to  receive  the  plea  and  granting  the  defendant  a  trial,  this,  of  neces- 
sity, meant  a  trial  with  the  issues  of  fact  to  be  determined  by  the  jury, 
and  not  to  be  determined  by  the  previous  plea  of  the  defendant,  which 
admitted  all  that  the  State  desired  to  prove.  In  short,  the  trial  court 
could  not  refuse  to  receive  the  defendant's  plea  of  guilty  at  one  time 
and  then  use  it  against  him  at  another." 

In  People  v.  Ryan,  82  Cal.  617,  23  Pac.  121,  the  defendant,  under  a 
statute  of  California  granting  the  right,  withdrew  a  former  plea  of 
guilty  and  entered  a  plea  of  not  guilty.  At  the  trial,  the  prosecution 
was  permitted  to  introduce  the  record  of  the  plea  of  guilty.  The  court, 
reversing  the  judgment  of  conviction,  said:  "The  case  stands  thus, 
without  the  evidence  of  a  withdrawn  plea  of  guilty,  for  which,  by  au- 
thority of  law  and  the  court,  a  plea  of  not  guilty  was  'substituted',  the 
defendant  could  not  have  been  legally  proven  or  found  guilty.  Can  it 
be  that  a  privilege  thus  conceded  to  a  defendant  of  substituting  one 
plea  for  another  is  to  have  the  inevitable  effect  of  defeating  the  whole 
object  of  the  'substituted'  plea?  We  do  not  think  that  the  legislature 
in  passing  the  law  under  which  the  defendant  was  allowed  to  nullify 
and  render  functus  officio  his  plea  of  guilty  by  substituting  or  putting 
in  place  of  it  a  plea  of  not  guilty,  intended  to  say  that,  notwithstanding 
such  substitution  and  doing  away  with  the  first  plea,  it  may  be  given 
in  evidence  and  sometimes  serve  as  the  only  conclusive  proof  of  a 
man's  guilt  under  the  plea  of  not  guilty.  Of  what  use  practically  would 
such  a  privilege  to  a  defendant  be,  as  that  granted  by  section  1018  of 
the  Penal  Code,  if  its  construction  is  to  be  such  as  that  contended  for 
by  the  respondent?'' 

The  only  case  cited  directly  in  point  which  holds  that  a  former  plea 
of  guilty  to  an  indictment  is  admissible  against  the  defendant  on  trial 
upon  a  substituted  plea  of  not  guilty  to  the  same  indictment  is  State  v. 
Carta,  90  Conn.  79,  96  Atl.  411,  L.  R.  A.  1916E,  634,  decided  by  the 
Supreme  Court  of  Errors  of  State  of  Connecticut.  Three  judges  an- 
nounced the  majority  opinion,  resting  the  decision  upon  the  case  of 
Commonwealth  v.  Ervine,  38  Ky.  (8  Dana)  30,  a  case  of  remote  anal- 
ogy, as  we  shall  observe  later.  Two  judges  joined  in  a  dissenting 
opinion,  not  only  conclusive  in  its  reasoning,  but  in  which  an  over- 
whelming array  of  authority  is  marshalled. 

•  The  text-writers  seem  to  be  unanimous  in  condemnation  of  the  prac- 
tice. Wharton,  in  his  work  on  Criminal  Evidence  (10th  Ed.)  §  638, 
says:  "Where  a  plea  of  guilty  is  withdrawn  l)y  the  permission  of  the 
court,  it  is  not  binding  as  a  confession,  nor  can  it  be  used  as  evidence." 


Sec.  2)  RECOGNIZED   EXCEPTIONS  555 

In  2  Encycl.  PI.  &  Pr.  p.  779,  the  rule  is  announced  as  follows: 
"The  effect  of  withdrawing  a  plea  is  to  render  it  functus  officio,  and  it 
cannot  afterwards  be  given  in  evidence  against  the  accused." 

In  8  Ruling  Case  Law,  p.  112,  the  subject  is  summarily  dismissed 
with  the  suggestion  that  "it  is  hardly  necessary  to  state  that  when  a 
plea  of  guilty  has  been  withdrawn  and  a  plea  of  not  guilty  entered,  the 
plea  of  guilty  is  not  admissible  in  evidence  against  the  accused." 

In  12  Cyc.  p.  426,  the  rule,  as  deduced  from  the  authorities,  is  stated 
as  follows :  "A  voluntary  offer  by  the  accused  before  trial  to  plead 
guilty  on  terms  to  the  offence  charged  is  competent  as  his  admission, 
but  a  withdrawn  plea  of  guilty  in  place  of  which  a  plea  of  not  guilty 
has  been  substituted  by  leave  of  the  court  is  not  competent  as  an  ad- 
mission." 

In  Abbott's  Criminal  Trial  Brief,  p.  314,  the  author  states  as  a  rule 
of  evidence  that  "a.  plea  which  has  been  held  invalid,  and  superseded 
by  the  plea  on  which  the  accused  is  tried,  cannot  be  read  in  evidence 
against  him." 

A  number  of  cases  have  been  cited  by  counsel  for  the  Government 
where  admissions  of  guilt  made  before  a  committing  magistrate  have 
been  used  against  the  accused  in  the  trial  court.  As  we  have  observe 
ed  these  are  judicial  confessions  of  a  lower  grade,  and  are  insufficient, 
without  corroboration,  to  support  a  judgment  of  conviction.  As  to  the 
admissibility  of  such  confessions  we  are  not  called  upon  to  express 
an  opinion  in  this  case.  In  Commonwealth  v.  Ervine,  supra,  strongly 
relied  upon  by  counsel  for  the  Government,  defendant  pleaded  guilty 
to  an  indictment  charging  a  misdemeanor,  upon  which  the  court  sen- 
tenced him  to  pay  a  fine.  Appeal  was  taken;  the  judgment  was  re- 
versed, and,  in  the  second  trial  he  pleaded  not  guilty.  It  was  held  that 
the  record  of  the  admission  of  guilt  on  the  former  trial  could  be  used 
against  him.  But  this  was  a  complete  record,  which  defendant  had 
deliberately  made  against  himself,  and  on  which  he  elected  to  stand 
through  an  appeal  to  a  higher  court.  When  reversed,  he  elected  to 
abandon  his  former  position  and  avail  himself  of  a  new  line  of  defense. 
While  the  Ervine  Case  stands  alone  and  furnishes  the  sole  support  for 
the  majority  opinion  in  the  Carta  Case,  we  think  it  is  only  remotely 
analogous  to  the  case  at  bar. 

Nor  can  the  error  be  cured  by  an  instruction  of  the  court  to  the 
jury  attempting  to  place  a  limitation  upon  the  weight  to  be  given  evi- 
dence of  such  a  confession.  Its  admission  under  any  circumstances  is 
such  an  invasion  of  the  right  of  one  accused  of  crime  to  a  fair  and 
impartial  trial  that  the  error  is  incurable.  It  is  so  destructive  of  the 
rights  of  the  accused  that  the  court  will  not  stop  to  examine  into  the 
technical  accuracy  of  the  objection  made  to  its  admission,  but  will,  in 
the  furtherance  of  justice  take  cognizance  of  the  error  and  refuse  to 
charge  the  defendant  with  any  waiver  of  his  rights  through  the  over- 
sight or  neglect  of  his  counsel  to  state  with  legal  precision  the  grounds 
of  his  objection.     Wiborg  v.  United  States,  163  U.  S.  632,  16  Sup. 


556  HEARSAY  (Ch.  3 

Ct.  1127,  1197,  41  L.  Ed.  289;  Crawford  v.  United  States,  212  U.  S. 
183,  194!  29  Sup.  Ct.  260,  53  L.  Ed.  465,  15  Ann.  Cas.  392;  Miller  v. 
United  States,  38  App.  D.  C.  361,  364,  40  Wash.  Law.  Rep.  210,  40 
L.  R.  A.  (N.  S.)  973. 

But  it  is  sought  to  distinguish  the  Ryan  Case,  in  that  the  plea  was 
withdrawn  under  a  right  conferred  by  statute,  while  here  its  with- 
drawal w^as  permitted  in  the  discretion  of  the  court.    Indeed,  the  pre- 
sumptions in  favor  of  the  defendant  are  stronger  here  than  in  the  Ryan 
Case.     There,  he  could  withdraw  his  plea  under  a  right  conferred  by 
statute,  irrespective  of  the  circumstances  which  may  have  induced  him 
to  make  it ;  but,  here,  the  mere  fact  that  the  court  permitted  the  with- 
drawal might  well  admit  of  the  implication  that  the  plea  of  guilty  had 
been  improperly  received.     The  most  charitable  treatment  which  the 
contention  deserves  is  to  consider  the  situations,  in  point  of  law,  analo- 
gous.    Whether  the  plea  of  guilty  is  withdrawn  in  the  exercise  of  a 
statutory  privilege  or  by  the  permission  of  the  court,  the  defendant 
stands  for  trial  upon  a  plea  of  not  guilt}%  and  is  entitled  to  all  the  safe- 
guards and  presumptions  of  innocence  which  the  humanity  of  the  law 
extends  to  one  on  trial  where  life  or  liberty  is  at  stake.     He  stands 
upon  a  substituted  plea  of  not  guilty,  and  it  matters  not  how  the  plea 
of  guilty  was  set  aside,  whether  by  express  or  implied  authority  of 
law.    The  authority  for  the  act,  so  long  as  it  existed,  fixed  the  status  of 
the  defendant.    After  the  plea  of  guilty  was  withdrawn,  the  case  was 
in  precisely  the  same  condition  as  if  the  plea  of  not  guilty  had  been 
originally  entered.     The  admission  of  guilt  had  disappeared  from  the 
case,  because  the  court,  in  the  exercise  of  its  sound  discretion,  had  de- 
terrnined  that,  in  justice,  it  should  go  out  of  the  case.     When  it  was 
stricken  out,  its  evidential  effect  as  a  confession  disappeared.     To  re- 
instate it  in  the  form  of  evidence  against  defendant  is  to  deprive  him 
of  any  advantage  gained  by  the  withdrawal  of  the  plea  of  guilty,  and 
restore  him  to  a  position  where  inevitable  conviction  awaited  him  at  the 
hands  of  the  jury.    As  was  said  in  the  dissenting  opinion  in  the  Carta 
Case :     "Considerations  of  fairness  would  seem  to  forbid  a  court  per- 
mitting for  cause  a  plea  to  be  withdrawn,  and  at  the  next  moment  al- 
lowing the  fact  of  the  plea  having  been  made,  with  all  its  injurious 
consequences,  to  be  admitted  in  evidence  as  an  admission  or  confes- 
sion of  guilt  by  the  accused.    The  withdrawal  is  permitted  because  the 
plea  was  originally  improperly  entered.     No  untoward  judicial  effect 
should  result  from  the  judicial  rectification  of  a  judicial  wrong." 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. 
Reversed  and  remanded.^" 

2  0  The  dissenting  opinion  of  Chief  Justice  Smith  has  been  omitted. 


5eC.  2)  RECOGNIZED   EXCEPTIONS  557 

IV.  Entries  and  Statements  against  Interest 
MANNING  V.  LECHMERE. 

(Court  of  Chancery,  1737.     1  Atk.  453.) 

Lord  Chancellor.  The  rules  as  to  evidence  are  the  same  in 
equity  as  at  law,  and  if  A.  was  not  admitted  as  a  witness  at  the  trial 
there,  because  materially  concerned  in  interest,  the  same  objection  will 
hold  against  reading  his  deposition  here. 

There  are  many  cases  where  leases  are  granted  to  persons,  in  which 
possession  upon  that  lease,  and  payment  of  rent,  shall  be  a  presump- 
tion of  right  in  the  lessor,  till  a  better  is  shewn ;  but  when  two  leases 
are  set  up,  you  cannot  read  one  of  them,  till  you  have  proved  possession 
under  that  lease. 

Receipts  for  rent  are  not  a  sufficient  evidence  of  a  title  in  the  lessor, 
unless  he  proves  actual  payment,  especially  where  the  person  who  has 
signed  the  receipt  is  living,^ ^  for  he  ought  to  have  been  examined  in 
the  cause. 

Where  there  are  old  rentals,  and  bailiffs  have  admitted  money  re- 
ceived by  them,  these  rentals  are  evidence  of  the  payment,  because  no 
other  can  be  had. 


WARREN  v.  GREENVILLE. 

(Court  of  King's  Bench,  1740.     2  Strange,  1129.) 

Upon  a  trial  at  bar,  the  lessor  of  the  plaintiff  claimed  under  an 
old  intail  in  a  family  settlement,  by  which  part  of  the  estate  appeared  to 
be  in  jointure  to  a  widow  at  the  time  her  son  suffered  a  common  re- 
covery, which  was  in  1699.  And  the  defendants  not  being  able  to  shew 
a  surrender  of  the  mother's  estate  for  life,  it  was  insisted  that  there 
was  no  tenant  to  the  praecipe  for  that  part,  and  the  remainder  under 
which  the  lessor  claimed  was  not  barred. 

To  obviate  this  it  was  insisted  by  the  defendant,  that  at  this  distance 
of  time  a  surrender  should  be  presumed;  according  to  1  Ven.  257, 
and  what  is  laid  down  in  Mr.  Pigot's  book  of  Common  Recoveries: 

2  1  Lord  Denman.  in  Phillips  v.  Cole,  10  Ad.  &  El.  106  (1839):  "With  regard 
to  the  first  of  these,  it  is  clear  that  declarations  of  third  persons  alive,  in  the 
absence  of  any  community  of  interest,  are  not  to  be  received  to  affect  the  title 
or  interests  of  other  persons,  merely  because  they  are  against  the  interest  of 
those  who  make  them.  The  general  rule  of  law,  that  the  living  witness  is  to 
be  examined  on  oath,  is  not  subject  to  any  exception  so  wide;  and  we  are  of 
opinion  that  the  circumstance  of  fraud  being  acknowledged  introduces  no  dif- 
ference in  principle;  that  acknowledgment  would  certainly  make  the  evi- 
dence, if  receivable,  more  weighty,  but  only  upon  the  ground  that  it  is  more 
strongly  against  the  interest  of  the  party  than  any  merely  pecuniary  consider- 
ation could  make  it.  The  ground  of  its  admission  would  be  the  same  in  ei- 
ther case ;  and  the  same  objection  applies  in  both,  the  want  of  community  of 
interest." 

See,  also,  Hennings  v.  Robinson,  ante,  p.  499. 


558  HEARSAY  (Ch.  3 

and  to  fortify  this  presumption  they  offered  to  produce  the  debt 
book  of  Mr.  Edwards  an  attorney  at  Bristol  long  since  deceased, 
where  he  charges  £32.  for  suffering  the  recovery,  two  articles  of  which 
are,  for  drawing  a  surrender  of  the  mother  20s.  and  for  ingrossing  two 
parts  thereof  20s.  more,  and  that  it  appeared  by  the  book  the  bill  was 
paid. 

And  this  being  objected  to  as  improper  evidence,  the  court  was  of 
opinion  to  allow  it,  for  it  was  a  circumstance  material  upon  the  in- 
quiry into  the  reasonableness  of  presuming  a  surrender,  and  could  not 
be  suspected  to  be  done  for  this  purpose ;  that  if  Edwards  was  living 
he  might  undoubtedly  be  examined  to  it,  and  this  was  now  the  next 
best  evidence.  And  it  was  accordingly  read.  After  which  the  court 
declared,  that  without  this  circumstance  they  would  have  presumed  a 
surrender;  and  desired  it  might  be  taken  notice  of,  that  they  did  not 
require  any  evidence  to  fortify  the  presumption,  after  such  a  length  of 
time. 


DOE,  Lessee  of  Reece  et  al,  v.  ROBSON  et  al. 
(Court  of  King's  Bench,  1812.     15  East,  32.) 

In  ejectment  for  a  messuage  in  the  parish  of  St.  Leonard,  Shore- 
ditch,  the  question  turned  upon  the  validity  of  a  lease  granted  under 
a  power  in  a  marriage  settlement  given  to  John  Fotherby  and  Anne 
Colepepper,  when  in  possession  respectively,  to  grant  leases  for  any 
term  not  exceeding  ninety-nine  years,  to  take  effect  in  possession  and 
not  in  reversion.  The  lease  in  question  bore  date  the  31st  of  August, 
1770,  and  was  granted  by  John  Fotherby  to  Stephen  Robson,  habendum 
from  the  29th  of  September,  now  next  ensuing,  for  the  term  of  ninety- 
nine  years.  At  the  trial,  before  Lord  Ellenborough,  C.  J.,  at  West- 
minster, the  lessors  of  the  plaintiff',  who  were  purchasers  of  the  re- 
version, insisted  upon  the  invalidity  of  this  lease;  it  appearing  from 
the  date  coupled  with  the  habendum  to  be  a  lease  in  reversion  and  not 
in  possession.  The  defendants  who  claimed  under  the  lease,  insisted 
that  although  it  bore  date  on  the  31st  of  August,  1770,  yet  it  was  not 
really  executed  and  delivered  until  a  period  subsequent  to  that  date. 
To  prove  this  they  produced  and  tendered  in  evidence  the  books  of 
Mr.  Strong,  deceased,  who  was  proved  to  have  been  Stephen  Robson's 
attorney ;  the  entries  in  which  were  all  proved  to  be  in  the  handwrit- 
ing of  Strong.  The  first  was  his  day  book,  containing  the  following 
entry : 

"Fotherby  to  Robson.  Inrlentures  of  lease;  Sept.  15."  Then  the 
journal  journalizing  from  the  day  book  with  the  following  entries: 

"17(J9.   1770.     P.   30.     Stephen   Robson,    Long- 
Alley,  near   Moorfiehls.  s.  d. 
Sept  15.     Indentures  of  lease  Fotherby  to  you  8  U 
Oct.      6.     Parchment  memorial  do.  0  4 
10.     Paid  registering  7  0" 


Sec.  2)  RECOGNIZED   EXCEPTIONS  559 

Also  the  bill-hook  or  ledger:  "1770,  October.  Drawing  and  engross- 
ing lease  from  Mr.  Fotherby  to  you,  and  counterpart,  and  drawing  and 
engrossing  memorial  thereof,  and  paid  registering,  £3.  13s.  6d."  It 
appeared,  that  the  above  charges  were  paid.  These  entries  were  ten- 
dered in  evidence  to  show  that  the  parchment  materials  upon  which 
the  lease  was  drawn  were  purchased,  and  the  lease  itself  executed, 
subsequent  to  the  31st  of  August,  the  date  of  the  lease.  The  evidence, 
though  objected  to,  was  admitted  by  Lord  Ellenborough,  C.  J.,  and  a 
verdict  was  thereupon  found  for  the  defendants. 

Park  now  moved  for  a  new  trial,  on  the  ground  that  the  evidence 
was  not  admissible.  He  allowed  that  this  question  had  been  much 
considered  in  a  late  case  of  Higham  v.  Ridgway,  10  East,  109;  but 
distinguished  that  case  from  the  present,  inasmuch  as  that  was  a  ques- 
tion respecting  the  time  of  birth  of  a  child,  upon  which  evidence  of 
reputation  in  the  family  is  admissible;  and,  therefore,  the  books  of  the 
midwife,  who  must  best  know  the  fact,  might  be  well  received.  But 
here  the  evidence  was  admitted  upon  a  matter  of  which  reputation  is 
no  evidence;  namely,  to  show  that  the  date  expressed  in  a  deed  was 
not  the  true  time  of  its  execution.  He  admitted  that  the  case  of  War- 
ren d.  Webb,  V.  Grenville,  2  Strange,  1129,  had  gone  farther;  for 
there  the  charges  made  in  the  attorney's  book  were  admitted  to  show 
the  surrender  of  a  life  estate,  in  order  to  support  a  subsequent  recov- 
ery ;  and  that  that  doctrine  had  been  upheld  by  later  decisions,  as  in 
Roe  V.  Rawlins,  7  East,  279.  But  he  contended  that  the  rule  ought 
not  to  be  relaxed  too  much. 

Lord  Ellenborough,  C.  J.  The  ground  upon  which  this  evi- 
dence has  been  received  is,  that  there  is  a  total  absence  of  interest  in 
the  persons  making  the  entries  to  pervert  the  fact,  and  at  the  same  time 
a  competency  in  them  to  know  it.  The  impression  on  my  mind  is  the 
same  now  as  it  was  at  the  trial,  that  the  evidence  is  admissible  on  the  I 
authority  of  the  cases. 

Grose,  J.,  concurred. 

Le  Blanc,  J.  The  case  of  Roe  v.  Rawlins  was  not  a  question  of 
reputation,  but  whether  the  ancient  rent  was  reserved  by  the  tenant 
for  life. 

BaylEy,  J.     It  has  long  been  an  established  principle  of  evidence,  I 
that  if  a  party  who  has  knowledge  of  the  fact '-  make  an  entry  of  it,  1 

22  Hayes,  J.,  in  Reg.  v.  Exeter,  L.  R.  4  Q.  B.  C.  341  (1S69):  "•  *  *  It 
would  be  absurd  to  hold  that  a  declaration  was  admissible,  but  to  hold  that 
it  was  no  evidence  as  to  one  of  the  main  facts  which  it  imported. 

"The  principle,  that  a  declaration  against  interest  was  evidence  as  to  all 
that  formed  an  essential  part  of  it,  was  long  since  settled  as  to  a  declaration 
against  pecuniary  interest  in  Higham  v.  Ridgway,  10  East,  109  [ISOS],  and 
tiie  numerous  cases  that  followed;  and  this  principle  wws  applied  to  declara- 
tions against  proprietary  interest  in  the  case  of  Reg.  v.  Birmingham,  1  B.  & 
S.  763  [1S61] ;   as  it  had  been  in  several  earlier  cases." 

bee,  also,  Knapp  v.  Trust  Co.,  199  Mo.  640,  98  S.  W.  70  (1906).  admitting 
the  paid  bill  of  a  deceased  physician  to  prove  the  disease  for  which  the  patient 
had  been  treated. 


560  HEARSAY  (Ch.  3 

whereby  he  charges  himself,  or  discharges  another  upon  whom  he 
would  otherwise  have  a  claim,  such  entry  is  admissible  in  evidence  of 
the  fact,  because  it  is  against  his  own  interest. 
Rule  refused.^' 


IVAT  V.  FINCH  et  al. 
(Court  of  Common  Pleas,  1808.     1  Taunt.  141.) 

This  was  an  action  of  trespass,  tried  before  Lord  Ellenborough,  C. 
J.,  at  the  last  assizes  for  the  county  of  Cambridge,  for  taking  three 
mares,  the  property  of  the  plaintiff,  and  converting  them  to  the  use  of 
the  defendants.  The  defendants  justified  under  a  heriot  custom;  and 
the  only  question  between  the  parties  was,  Whether  one  Alice  Watson, 
the  tenant,  was  possessed  of  the  said  mares  at  the  time  of  her  death  ? 
It  was  admitted  that  they  had  formerly  been  her  property,  but  it  was 
contended  that  some  time  before  her  death  she  had  transferred  them, 
with  the  rest  of  her  farming  stock,  to  the  plaintiff.  For  the  purpose 
of  proving  this  transfer,  a  witness  was  called  to  speak  to  a  conver- 
sation, in  which  Mrs.  Watson  had  stated  that  she  had  retired  from 
business,  and  given  up  her  farm  and  stock  to  her  son-in-law,  the 
plaintiff.  The  Chief  Justice  inquired  whetlier  these  declarations  were 
accompanied  by  any  act  relative  to  the  management  of  the  farm.  This 
being  answered  in  the  negative,  his  Lordship  was  of  opinion  that  the 
evidence  could  not  be  received.  The  jury  gave  their  verdict  for  the 
defendants.  A  rule  nisi  having  obtained  on  a  former  day  for  setting 
aside  the  verdict  and  granting  a  new  trial. 

Lens,  Serjt.,  upon  shewing  cause,  contended  that  the  evidence  was 
properly  rejected.  These  declarations  were  not  offered  as  explanatory 
of  any  act  relative  either  to  this  property,  or  to  the  business  and  man- 
agement of  the  farm.  They  were  nothing  but  casual  and  idle  con- 
versation. Evidence  of  such  a  description  was  calculated  rather  to 
mislead  than  inform;  and  the  admission  of  it  in  courts  of  justice 
would  be  attended  with  the  most  manifest  inconvenience  and  danger, 

Sellon,  Serjt.,  contra,  was  stopped  by  the  Court. 

Mansfield,  C.  J.  The  evidence  ought  to  have  been  received; 
though  undoubtedly  such  declarations  would  be  entitled  to  a  greater 
or  less  degree  of  attention  according  to  the  circumstances  by  which 
thev  were  accompanied.  The  admission,  supposed  to  have  been  made 
by  Mrs.  Watson,  was  against  her  own  interest.  Had  this  been  an  ac- 
tion between  Mrs.  Watson  and  the  present  plaintiff,  her  acknowledg- 
ment that  the  property  belonged  to  him  might  clearly  have  been  given 

23  In  the  earlier  case  of  Ili'^'liam  v.  Ridirway,  10  East,  100  (ISOS).  where  the 
paid  Hcf-fiunt  of  a  deceased  iilivsicinn  had  Ixen  admit  led  to  prove  tlie  date 
of  a  birth,  tlie  opinion  .seems  to  lay  .some  stress  on  the  fact  that  tHiere  was 
extrinsic  evidence  of  the  fact  that  the  physician  had  attended  the  case. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  561 

in  evidence.  It  ought,  therefore,  to  have  been  received  in  the  present 
instance ;  because  the  right  of  the  lord  of  the  manor  depended  upon 
her  title. 

PSR  Curiam.     Rule  absolute. 2* 


PEACEABLE  v.  WATSON. 

(Court  of  Common  Pleas,  1811.    4  Taunt.  16.) 

This  was  an  ejectment  brought  to  recover  possession  of  three  houses 
at  Wisbeach.  Upon  the  trial  at  the  Cambridge  spring  assizes,  1811, 
before  Grose,  J.,  the  counsel  for  the  plaintiff,  whose  lessor  claimed  the 
premises  by  descent  from  Robert  Farthing,  in  order  to  show  the 
seisin  of  Robert  Farthing,  asked  a  witness  if  he  had  known  one 
Clarke,  now  deceased,  and  upon  his  saying  yes,  asked  if  he  had  ever 
heard  Clarke  say  of  whom  he  rented  the  houses  which  he  occupied 
in  Wisbeach.  The  counsel  for  the  defendant  objecting  to  this  ques- 
tion, Grose,  J.,  refused  to  permit  it  to  be  put,  and  the  plaintiff,  being 
unable  to  prove  his  title  without  this  evidence,  was  nonsuited.  An- 
other objection  was  also  raised  by  the  defendant,  that  the  term  alleged 
to  be  demised  to  the  plaintiff  had  expired  before  the  trial,  but  that 
objection  was  overruled  at  the  trial,  and  the  rejection  sanctioned  by 
the  court  afterwards,  who  said  it  might  be  cured  by  amending. 

Peckwell,  Serjt.,  in  Easter  term  had  obtained  a  rule  nisi  to  set  aside 
the  nonsuit  and  have  a  new  trial,  upon  the  ground  that  evidence  of  the 
declarations  of  a  deceased  tenant  may  be  received  to  show  who  was  his 
landlord. 

Mansfield,  C.  J.  The  opinion  of  Grose,  J.,  is  unanswerable.  The 
ground  of  the  rejection  is  this.  Possession  is  prima  facie  evidence  of 
seisin  in  fee  simple:  the  declaration  of  the  possessor  that  he  is  tenant 
to  another,  makes  most  strongly,  therefore,  against  his  own  interest, 
and  consequently  is  admissible,  but  it  must  be  first  shown  that  he  was 
in  possession  of  the  premises  for  which  the  ejectment  is  brought.  The 
learned  judge's  report,  however,  seems  to  go  further,  and  to  intimate 
that  he  should  have  rejected  the  evidence  of  the  declarations,  whether 
there  had  or  had  not  been  other  evidence  to  identify  the  premises  which 
Clarke  held,  as  those  that  were  sued  for. 

Lawrence,  J.  The  plaintiff  must  know,  or  ought  to  know,  what 
premises  he  goes  for,  and  he  must  first  show,  that  the  defendant  is 

2  4  That  an  oral  statement  against  pecuniary  interest  is  equally  admissible, 
see  Mahaska  County  v.  Ingalls,  16  Iowa,  81  (1864),  where  the  cases  are  col- 
lected and  reviewed.  For  the  contrary  view,  limiting  statements  against 
pecuniary  interest  to  book  entries  and  siinilar  writings,  see  Lawrence  v.  Kim- 
ball, 1  Mete.  (Mass.)  527  (1840). 

HiNT.Ev.— 36 


562  HEARSAY  (Ch.  3 

in  possession  of  the  premises  sought  to  be  recovered,  and  next,  that 
the  plaintiff  has  a  better  title.     But  since  the  learned  judge  was  of 
opinion,  that,  after  those  facts  were  proved,  the  declaration  still  would 
not  be  evidence,  there  ought  to  be  a  new  trial. 
Rule  absolute. 


ADDAMS  v.  SEITZINGER. 

(Supreme  Court  of  Pennsylvania,  1S41.     1  Watts  &  S.  243.) 

This  was  an  action  of  assumpsit  on  a  note,  to  which  the  defendant 
pleaded  non  assumpsit  infra  sex  annos. 

The  plaintiff  gave  in  evidence  the  following  note : 

"On  demand  I  promise  to  pay  John  Addams  or  order  $600,  with- 
out defalcation,  for  value  received.    Reading,  Sept.  4,  1827. 

"Jacob  W.  Seitzinger" 
and  proved  that  said  John  Addams  died  in  November,   1832;    that 
the  following  endorsements  or  entries  on  the  back  of  said  promissory- 
note,  are  in  the  handwriting  of  said  John  Addams : 

"Interest  paid  up,  February  17,  1829.  Jno.  Addams." 

"Received  three  hundred  and  fifty  dollars  on  the  within  note  at 
different  times.     January  31,  1829.  Jno.  Addams," 

The  plaintiffs  then  oft'ered  to  read  the  said  entries  or  endorsements 
in  evidence,  to  take  the  case  out  of  the  statute  of  limitations ;  defend- 
ant objected  to  the  evidence;  the  court  sustained  the  objection,  and 
overruled  the  testimony;  to  which  decision  of  the  court  the  plaintiffs 
excepted. 

Error  assigned : 

The  court  erred  in  rejecting  the  entries  or  endorsements  on  the  back 
of  the  note,  and  in  deciding  that  the  same  did  not  take  tlie  case  out 
of  the  statute  of  limitations. 

The  opinion  of  the  Court  was  delivered  by 

Gibson,  C.  J.  Endorsements  or  memorandums  of  payments,  as 
acknowledgment  of  debt  to  avoid  the  consequences  of  lapse  of  time, 
were  never  much  encouraged  by  the  English  judges ;  and  they  have 
been  finally  prohibited,  as  regards  the  statute  of  limitations,  by  the 
9  G.  4,  c.  14,  though  they  may  still  be  used  in  the  English  courts,  to 
rebut  the  presumption  of  payment  which  ordinarily  arises  from  the 
lapse  of  twenty  years.  Yet  the  objection  usually  made  to  their  com- 
petency, that  they  enable  a  party  to  make  evidence  for  himself,  is 
more  specious  than  solid.  If  the  statute  had  closed  upon  the  right, 
or  the  foundation  of  the  presumption  were  complete  when  the  mem- 
orandum was  made,  an  objection  to  it  would  be  unanswerable;  but 
it  is  impossible  to  conceive  of  a  motive  for  fabricating  such  a  memo- 
randum while  the  right  of  action  remained  unimpaired.  To  suppose 
that  a  creditor  would  set  about  the  commission  of  what  is  at  least  a 


Sec.  2)  RECOGNIZED   EXCEPTIONS  563 

moral  forgery,  to  obviate  the  anticipated  consequences  of  his  own 
apprehended  supineness,  when  he  might,  by  bringing  immediate  suit, 
prevent  the  occurrence  of  those  consequences  altogether,  is  absurd. 
The  legal  presumption  is  in  favour  of  innocence  where  there  is  no 
violent  probability  of  guilt.  But  the  rule,  guarded  as  it  was  in  England, 
and  as  it  still  is  here,  allows  not  such  a  memorandum  to  go  to  the  jury, 
unless  it  appear  to  have  been  made  when  the  creditor  had  no  motive 
to  give  a  false  credit,  but  when,  on  the  contrary,  he  had  the  all-pre- 
vailing inducement  of  interest  to  avoid  the  appearance  of  it;  that  is, 
when  the  period  necessary  to  give  effect  to  the  statute  or  to  raise  a 
presumption  of  payment  had  not  elapsed,  and  consequently  when  to 
give  a  false  credit  would  have  been  to  throw  so  much  away.  With 
this  qualification,  such  evidence  cannot  operate  injuriously;  for  it  is 
not  to  be  supposed  that  a  creditor  could  so  far  mistake  his  interest,  as 
to  sacrifice  a  part  of  his  debt  to  save  the  residue,  when  no  part  of  it 
was  in  danger.  It  is  possible  that  a  weak  man  might  do  so ;  but  it  is 
inconsistent  with  the  ordinary  course  of  human  action.  The  rule  is 
not  only  essentially  a  good  one,  but  it  is  no  more  than  an  extension  of 
the  principle  which  allows  entries  or  memorandums,  which  were  preju- 
dicial to  the  interest  of  the  writer  where  his  testimony  cannot  be  had, 
to  be  evidence  of  a  fact  in  a  controversy  between  strangers ;  thus 
substituting  for  the  sanction  of  a  judicial  oath,  the  more  powerful 
sanction  of  a  sacrifice  of  self-interest.  In  the  case  before  us,  it  is 
certain  that  tlie  credits  were  endorsed  before  the  statute  had  run  its 
course.  The  note  was  drawn  in  1827;  and  the  endorsements,  both  in 
the  handwriting  of  the  creditor,  who  died  in  1832,  are  dated  1829; 
so  that  the  period  required  by  the  statute  had  not  run  round  even  at 
his  death.  Such  was  the  case  which  was  offered  to  be  proved;  and 
the  evidence  of  it  ought  to  have  been  received. 

Judgment  reversed,  and  a  venire  de  novo  awarded.^' 


HOSFORD  v.  ROWE  et  aL 
(Supreme  Court  of  Minnesota,  1SS9.    41  Minn.  245,  42  N.  W.  1018.) 

Dickinson,  J.^^  The  respondent,  Carrie  M.  Hosford,  is  the  widow 
of  the  deceased,  John  H.  Hosford.  Before  her  marriage  to  him  she 
was  a  widow,  and  bore  the  name  of  Thompson.  The  appellants  are  his 
daughters  by  a  former  marriage.     By  an  order  of  the  probate  court 

2  5  See  Searle  v.  Harrington,  2  Strange,  826  (1729),  affirmed  by  the  House 
of  Lords,  3  Brown,  P.  C.  593  (1730),  where  a  similar  entrj-  was  held  admis- 
sible to  rebut  a  presumption  of  payment ;  for  an  exhaustive  review  of  this 
case,  see  Gleadow  v.  Atkin,  1  Cr.  &  M.  410  (1833). 

2  6  Part  of  opinion  omitted. 


564  HEARSAY  (Ch.  3 

for  the  distribution  of  the  estate,  the  respondent,  the  widow,  was  al- 
lowed to  take  in  accordance  with  the  statute,  as  though  her  rights 
were  not  aft'ected  by  the  antenuptial  contract  hereafter  to  be  referred  to. 
The  daughters  of  the  deceased  appealed  to  the  district  court.  Upon 
trial  of  the  cause  in  the  latter  court  a  jury  was  called,  and  three  ques- 
tions were  submitted  to  them  for  decision,  viz. :  "First,  whether  about 
November  2,  1885,  the  antenuptial  contract  was  executed ;"  to  which 
the  jury,  by  direction  of  the  court,  answered,  "Yes;"  "second,  wheth- 
er the  deceased,  subsequent  to  tlie  marriage,  and  about  September  13, 
1886,  destroyed  that  contract  with  the  knowledge  and  consent  of  his 
wife;"  to  which  the  jury  answered,  "No;"  and,  "third,  whether  at  or 
about  the  time  last  named  he  signed  duplicate  instruments  presented  in 
the  case,  and  known  as  Exhibits  C  and  D,  purporting  to  annul  the 
antenuptial  contract;"  to  which  the  jury  answered,  "No."  The  widow, 
who  claimed  the  more  favorable  provision  made  by  law,  rather  than 
that  made  by  the  terms  of  the  antenuptial  agreement,  moved  for  a  new 
trial,  upon  the  ground,  among  others,  of  newly-discovered  evidence. 
The  court  granted  a  new  trial  upon  that  ground,  and  from  that  order 
this  appeal  v/as  taken. 

We  are  called  upon  to  consider  the  alleged  newly-discovered  evi- 
dence, as  it  may  bear  upon  the  second  and  third  of  the  questions  pre- 
sented to  the  jury.     *     *     * 

The  newly-discovered  evidence,  which  led  the  court  to  grant  a  new 
trial,  is  shown  in  the  affidavit  of  one  Abraham  L.  Jones,  stating  a  con- 
versation with  Mr.  Hosford  between  the  1st  and  15th  of  October,  1886, 
— a  short  time  after  the  alleged  destruction  of  the  antenuptial  contract, 
— in  which  Mr.  Hosford  said:  "I  burned  the  papers  we  had  written 
before  our  marriage.  I  propose  to  let  my  wife  have  the  biggest  part 
of  my  money."  Proof  of  such  a  declaration  would  not  be  subject  to 
the  objections  suggested  by  the  appellants.  It  would  be  provable  as 
evidence  of  the  destruction  and  annulling  of  the  antenuptial  contract, 
for  the  reason  that  such  a  declaration  by  him  would  be  against  his 
interest  in  a  pecuniary  or  proprietary  point  of  view,  and  is  therefore 
within  the  familiar  exception  to  the  rule  relating  to  secondary  evidence. 
1  Greenl.  Ev.  §§  147-149.  By  force  of  the  antenuptial  agreement  the 
husband's  power  to  dispose  of  his  estate  was  greater  than  it  would  be 
if  that  contract  should  be  annulled.  By  that  contract  the  interest  which 
his  widow  could  enjoy  in  his  estate,  upon  his  death,  was  limited  to 
one-seventh  part,  as  against  the  one-third  which  our  law  gives  when 
unaffected  by  such  an  agreement.  It  was  for  his  interest  to  preserve  the 
larger  power  of  disposition  with  respect  to  his  property,  which  the  con- 
tract secured  to  him.  He  could  still,  of  his  own  volition,  bestow  upon 
his  wife  while  living,  or  by  will  upon  his  widow,  a  greater  share  of  his 
estate  than  that  specified  in  the  agreement,  and  a  will  once  made  might 
be  revoked  or  altered  at  his  own  election.  He  would  be  free,  on  the 
other  hand,  to  make  any  other  disposition  he  migiit  desire  of  the  six- 


Sec.  2)  aECOGNizED  exceptions  565 

sevenths  of  the  estate.  This  right  of  election  on  his  part  would  at 
once  cease  upon  the  cancellation  of  that  contract.  Thereafter  he  could 
impose  no  restriction  upon  the  larger  statutory  rights  of  his  wife  to 
share  in  his  estate.  As  respected  his  interest  in  the  property,  it  was 
not  a  matter  of  indifference  whether  the  contract  remained  in  force  or 
not.  Its  annulment  would  diminish  his  power  to  control  the  disposition 
of  his  property;,  nor  would  it  be  in  his  own  power  to  place  himself 
again  in  his  former  advantageous  position. 

These  considerations  distinguish  this  case  from  a  class  of  decisions 
relied  upon  by  the  appellants  in  respect  to  which  it  is  to  be  observed 
that  the  declarations  in  question  could  not  be  said  to  be  against  the  in- 
terest of  the  persons  making  them.  Declarations  by  a  person  to 
show  that  he  had  executed  a  will,  or  that  he  had  not  executed  a  will,  or 
that  he  had  revoked  his  will,  are  examples  of  the  cases  referred  to. 
These  are  not  to  be  regarded,  in  general,  as  declarations  against  in- 
terest, for  the  acts  to  which  the  declarations  relate,  and  the  conse- 
quences of  such  acts,  are  wholly  within  the  control  of  the  person  whose 
declaration  is  in  question.  It  cannot  be  presumed  that  such  acts  are 
prejudicial  to  himself.  If  he  has  made  a  will,  he  can  revoke  it  at  pleas- 
ure, or  alter  it,  or  make  another.  And  so  his  declaration  that  he  has 
made  a  will  is  not  against  his  interest.  If  he  has  not  executed  a  will, 
that  is  not  to  his  prejudice.  He  can  do  so  whenever  he  may  deem  it 
best.  If  he  has  revoked  a  will,  he  can  make  another.  Whether  the 
declaration  in  question  would  be  admissible  in  this  case  upon  any 
other  ground  than  that  above  specified,  we  do  not  decide. 

The  latter  provision  in  the  antenuptial  agreement,  to  the  effect  that 
in  the  event  of  the  husband  surviving  the  wife,  the  heirs  and  next  of 
kin  of  the  latter  should,  upon  his  death,  take  the  same  interest  in  the 
property  which  the  contract  secured  to  her,  does  not  qualify  the  con- 
clusion that  it  was,  in  contemplation  of  law,  against  his  interest  to 
annul  this  agreement.  Their  ages  were  such  that — no  other  fact  ap- 
pearing— it  was  probable  that  she  would  survive  him,  and  hence  that 
this  last  provision  would  never  become  operative.  The  law  recognizes 
this  probability'  based  upon  such  a  difference  in  ages,  and  it  is  not  to 
be  disregarded  in  considering  whether  the  interest  of  Mr.  Hosford  was 
that  the  contract  should  remain  in  force  or  be  annulled.  The  case  as 
it  then  stood  may  be  thus  stated:  If  the  contract  should  remain  in 
force,  the  wife's  inchoate  interest  in  the  estate,  and  the  corresponding 
restriction  upon  the  husband's  power  of  disposition,  would  be  confined 
to  the  one-seventh  part.  But  this  limitation  of  his  power  would  be 
effectual,  even  though  he  should  outlive  her.  On  the  other  hand,  if 
the  contract  were  done  away  with,,  such  charge  and  restriction  would 
apply  to  one-third  of  the  estate, — more  than  twice  the  former  propor- 
tion,— if  Mr.  Hosford  should  die  before  his  wife,  as  it  was  probable 
he  would  do.  It  so  clearly  appears  from  this  that  his  interest  was  to 
preserve  the  contract  in  force,  that,  no  other  qualifying  circumstance 


566  HEARSAY  (Ch.  3 

being  shown,  it  should  be  assumed  that  the  declaration  in  question  was 
against  interest,  and  therefore  it  would  be  competent  evidence  against 
tlie  appellants.     *     *     ♦ 
Order  affirmed.-' 


SMITH  V.  BLAKEY. 
(Court  of  Queen's  Bench,  1S67.     L.  R.  2  Q.  B.  Cas.  326.) 

Declaration  for  money  lent,  money  paid,  work  done  and  commis- 
sion, money  had  and  received,  interest,  and  on  accounts  stated. 

Plea,  never  indebted. 

Issue  thereon. 

At  the  trial  before  Mellor,  J.,  at  the  sittings  in  Middlesex  after 
Easter  Term,  1866,  it  appeared  that  the  action  was  brought  to  re- 
cover £97 .  18s.  3d.,  the  balance,  with  interest,  due,  as  was  alleged,  on 
an  advance  by  the  plaintiffs  to  the  defendant,  on  a  consignment  of 
boots  and  shoes.  The  plaintiffs  in  1864  were  general  merchants,  hav- 
ing a  house  in  London,  Liverpool,  and  Calcutta.  The  plaintiff'  Smith 
managed  the  business  in  London,  and  the  business  in  Liverpool  was 
carried  on  by  a  confidential  clerk,  named  Barker,  whose  duty  and 
practice  it  was  to  keep  his  principals  constantly  advised  of  all  the 
business  he  transacted  for  them.  The  defendant  was  a  boot  and 
shoe  manufacturer  in  Liverpool.  Barker  died  in  August,  1864;  and, 
in  order  to  prove  the  alleged  transaction  between  the  plaintiffs  and 
the  defendant,  a  letter  written  by  Barker  to  the  plaintiff"  Smith  on 
the  5th  of  April,  1864,  was  tendered  in  evidence,  and  admitted,  after 
objection.     The  letter  was  as   follows : 

"April  5,  1864. 

"James  Smith,  Esq.,  London — Dear  Sir:  I  enclose  four  private  let- 
ters, also  two  drafts  of  Cuming  Brothers.  *  *  *  Draft  of  John 
Blakey  [the  defendant]  vv^hich  he  sent  to-day,  with  three  huge  cases, 
to  the  office.  I  enclose  his  invoices  for  your  perusal.  He.  leaves  ship- 
ment of  his  goods  to  your  judgment.  He  will  renew ;  he  banks 
with  the  North  and  South  Wales  Bank  here.  I  think  the  goods  are 
remarkably  cheap,  and  I  consider  him  a  perfectly  safe  man,  should 
there  be  any  reclamation.  He  draws  for  75  per  cent.,  and  will  pay 
me  the  i20.  he  owes  you,  which  it  was  arranged  you  should  take  out 
in  ponies;    this  I  stipulated  for.     I  have  a  sample  pair  of  each  de- 

27  In  Keg.  V.  Inlifibitants  of  Worth,  4  Q.  B.  1.32  (1843),  it  was  hi^ld  that  au 
entry  showing  a  contract  of  employment  was  not  against  the  interest  of  the 
emplovcr. 

In  (Juiiri  V.  Thrustou,  130  Mo.  330,  32  S.  W.  G54  (lS9.j),  on  a  question  of 
bringing  advanfements  into  liolchiKtt,  it  was  tliought  tliat  .ytatenieiits  by  tlie 
deceased  parent,  that  certain  transfers  wore  absolute  gifts,  werc^  against  his 
iDterest,  but  not  statenieuts  that  other  transfers  were  advancements. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  567 

scription  here,  which  we  can  send  out  by  first  ship,  and  keep  the 
goods  for  the  Lady  Palmerston,  which  vessel  arrived  yesterday  from 
Glasgow.    *     *     *  Yours,  &c.,         Geo.  C.  Barker." 

The  invoices  inclosed  were  one  to  each  case  of  boots  and  shoes, 

and  were  on  lithographed  forms  of  the  defendant,  headed  "Mr. 

Bought  of  J.  Blakey,"  no  name  being  inserted  as  buyer ;  and  the  list 
of  boots  and  shoes,  with  prices,  was  made  out  in  the  handwriting  of 
one  of  the  defendant's  clerks. 

The  draft  was  a  bill  of  exchange,  dated  April  5,  1864,  at  six  months 
drawn  by  the  defendant  to  his  own  order  on  the  plaintiffs,  for  £252. 
7s.  5d.,  "value  received,"  this  amount  being  about  £75.  per  cent,  on 
the  aggregate  invoice  prices. 

The  plaintiffs  accepted  this  bill,  and  returned  it  to  the  defendant, 
and  paid  it  at  maturity. 

Two  of  the  cases  were  consigned  for  sale  to  the  plaintiffs'  house 
at  Calcutta,  and  one  to  their  agents  at  Columbo,  in  Ceylon ;  and  on 
the  account  sales  returned  to  the  plaintiffs  by  their  correspondents, 
and  which  were  put  in  evidence,  the  net  proceeds  of  the  sale  of  the 
three  cases  showed  a  deficit  below  the  sum  advanced  by  the  plaintiffs, 
which  deficit,  with  interest,  made  up  the  sum  claimed. 

[The  jury  found  a  verdict  for  the  amount  claimed. 

A  rule  was  obtained  to  enter  a  nonsuit,  on  the  ground  that  there 
was  no  evidence  to  go  to  the  jury;  or  for  a  new  trial,  on  the  ground 
that  Barker's  letter  ought  not  to  have  been  admitted  in  evidence.] 

Blackburn,  J.-®  The  first  question  is,  was  the  letter  of  the  5th  of 
April,  1864,  written  by  Barker  to  the  plaintiffs  admissible  in  evidence 
against  the  defendant?  Mr,  Barker  was  employed  by  the  plaintiffs 
as  confidential  agent  in  Liverpool  to  carry  on  their  business  there ; 
and  part  of  his  duty,  part  of  what  he  was  employed  to  do,  was  to 
keep  his  principals  advised  of  the  business  transacted  by  him,  and 
he  did  keep  them  so  advised.  Of  course,  as  long  as  Barker  lived  this 
letter  would  not  have  been  evidence,  and  he  must  have  been  himself 
called  as  a  witness ;  but  Barker  is  dead,  and  it  was  sought  to  make 
the  letter  admissible,  as  coming  within  the  class  of  cases  in  which 
statements,  whereby  a  deceased  person  has  charged  himself  w^ith  or 
discharged  another  from  the  payment  of  money,  have  been  admitted. 
And  no  doubt  when  entries  are  against  the  pecuniary  interest  of  the 
person  making  them,  and  never  could  be  made  available  for  the  person 
himself,  there  is  such  a  probability  of  their  truth  that  such  statements 
liave  been  admitted  after  the  death  of  the  person  making  them,  as 
evidence  against  third  persons,  not  merely  of  the  precise  fact  which 
is  against  interest,  but  of  all  matters  involved  in  or  knit  up  with  the 
statement ;  as  in  Higham  v.  Ridgway,  10  East,  109,  where  the  entry 
of  man  midwife  that  he  had  delivered  the  wife  of  a  certain  man  of  a 

2  8  Tart  of  opinion  omitted. 


5G8  HEARSAY  (Ch.  3 

son  on  a  particular  day,  coupled  with  the  charges  which  were  marked 
as  paid,  was  held  admissible  to  prove  the  date  of  the  birth  of  a  per- 
son who  had  suffered  a  recovery,  showing  that  he  was  not  of  age  at 
the  time.  The  present  statement  is  contained  in  a  letter  which  ac- 
knowledges the  receipt  of  "three  huge  cases,"  and  if  this  acknowledg- 
ment is  receivable  in  evidence  as  against  interest,  then  the  rest  of  the 
letter  explanatory  of  the  transaction  under  which  the  cases  were  re- 
ceived would  also  be  evidence.  But  the  authorities  show,  as  was  said 
in  the  Sussex  Peerage  Case,  11  CI.  &  F.  85,  that  the  declaration  must 
be  against  pecuniary  interest,  or,  what  is  much  the  same  thing,  against 
proprietary  interest,  as  when  a  deceased  occupier  of  land  admitted 
that  he  held  as  tenant  of  another,  thus  cutting  down  his  prima  facie 
title  in  fee.  In  the  present  case  all  the  admission  by  Barker  that  can 
be  said  to  be  against  interest  amounts  to  no  more  than  an  admission 
that  he  has  the  care  of  the  three  chests  which  have  arrived  at  the  of- 
fice, and  the  possibility  that  this  statement  might  make  him  liable  in 
the  case  of  their  being  lost  is  an  interest  of  too  remote  a  nature  to 
make  the  statement  admissible  in  evidence.  *  *  * 
Rule  absolute  for  a  new  trial. 


DONNELLY  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1913.     228  U.  S.  243,  33  Sup.  Ct.  449, 
57  L.  Ed.  820,  Ann.  Cas.  1913E,  710.) 

Mr.  Justice  Pitney  ^^  delivered  the  opinion  of  the  court: 
Plaintiff  in  error  was  convicted  in  the  circuit  court  of  the  United 
States  for  the  northern  district  of  California,  upon  an  indictment  for 
murder ;  and,  having  been  sentenced  to  life  imprisonment,  sues  out 
this  writ  of  error.  The  indictment  charged  him  with  the  murder  of 
one  Chickasaw,  an  Indian,  within  the  limits  of  an  Indian  reservation 
known  as  the  Extension  of  the  Hocpa  Valley  Reservation,  in  the 
county  of  Humboldt,  in  the  state  and  northern  district  of  Califor- 
nia.    *     *     * 

The  only  remaining  question  arises  out  of  the  e.xclusion  by  the 
trial  judge  of  testimony  offered  by  the  plaintiff  in  error  for  the  pur- 
pose of  showing  that  one  Joe  Dick,  an  Indian,  since  deceased,  had  con- 
fessed that  it  was  he  who  had  shot  Chickasaw.  Since  the  circum- 
stances of  the  crime,  as  detailed  in  the  evidence  for  the  government, 
strongly  tended  to  exclude  the  theory  that  more  than  one  person 
participated  in  the  shooting,  the  Dick  confession,  if  admissible,  would 
have  directly  tended  to  exculpate  the  plaintiff'  in  error.  By  way  of 
foundation  for  the  offer,  plaintiff  in  error  shewed  at  the  trial  that 
Dick  was  dead,  thereby  accounting  for  his  not  being  called  as  a  witness, 

2»  Parts  of  opinion  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  5G9 

and  showed  in  addition  certain  circumstances  that,  it  was  claimed, 
pointed  to  him  as  the  guilty  man,  viz.,  that  he  lived  in  the  vicinity 
and  therefore  presumably  knew  the  habits  of  Chickasaw ;  that  the 
human  tracks  upon  a  sand  bar  at  the  scene  of  the  crime  led  in  the  di- 
rection of  an  acorn  camp  where  Dick  was  stopping  at  the  time,  rather 
than  in  the  direction  of  the  home  of  the  plaintiff  in  error ;  and  that 
beside  the  track  there  was  at  one  point  an  impression  as  of  a  person 
sitting  down,  indicating,  as  claimed,  a  stop  caused  by  shortness  of 
breath,  which  would  be  natural  to  Dick,  who  was  shown  to  have  been 
a  sufferer  from  consumption. 

Hearsay  evidence,  with  a  few  well-recognized  exceptions,  is  excluded 
by  courts  that  adhere  to  the  principles  of  the  common  law.  The  chief 
grounds  of  its  exclusion  are,  that  the  reported  declaration  (if  in  fact 
made)  is  made  without  the  sanction  of  an  oath,  with  no  responsibility 
on  the  part  of  the  declarant  for  error  or  falsification,  without  oppor- 
tunity for  the  court,  jury,  or  parties  to  observe  the  demeanor  and 
temperament  of  the  witness,  and  to  search  his  motives  and  test  his 
accuracy  and  veracity  by  cross-examination,  these  being  most  im- 
portant safeguards  of  the  truth  where  a  witness  testifies  in  person,  and 
as  of  his  own  knowledge ;  and,  moreover,  he  who  swears  in  court  to 
the  extrajudicial  declaration  does  so  (especially  where  the  alleged  de- 
clarant is  dead)  free  from  the  embarrassment  of  present  contradic- 
tion, and  with  little  or  no  danger  of  successful  prosecution  for  per- 
jury. It  is  commonly  recognized  that  this  double  relaxation  of  the 
ordinary  safeguards  must  very  greatly  multiply  the  probabilities  of 
error,  and  that  hearsay  evidence  is  an  unsafe  reliance  in  a  court  of 
justice. 

One  of  the  exceptions  to  the  rule  excluding  it  is  that  which  permits' 
the  reception,  under  certain  circumstances  and  for  limited  purposes,  of 
declarations  of  third  parties,  made  contrary  to  their  own  interest ;  but 
it  is  almost  universally  held  that  this  must  be  an  interest  of  a  pecuniary 
character ;  and  the  fact  that  the  declaration  alleged  to  have  been  thus 
extrajudicially  made  would  probably  subject  the  declarant  to  a  crim- 
inal liability  is  held  not  to  be  sufficient  to  constitute  it  an  exception  to 
the  rule  against  hearsay  evidence.  So  it  was  held  in  two  notable  cases, 
in  the  House  of  Lords, — Berkeley  Peerage  Case  (1811)  4  Campb.  401 ; 
Sussex  Peerage  Case  (1844)  11  Clark  &  F.  85,  103,  109,  8  Jur.  793, 
recognized  as  of  controlling  authority  in  the  courts  of  England. 

In  this  country  there  is  a  great  and  practically  unanimous  weight  of 
authority  in  the  state  courts  against  admitting  evidence  of  confessions 
of  third  parties,  made  out  of  court,  and  tending  to  exonerate  the  ac- 
cused. Some  of  the  cases  are  cited  in  the  margin.'"  A  few  of  them 
(West  V.  State,  76  Ala.  98;  Davis  v.  Com.,  95  Ky.  19,  44  Am.  St.  Rep. 


8  0  An  extensive  list  of  cases  is  collected  in  the  note  to  this  case  in  the  orig- 
inal report. 


570  HEARSAY  (Ch.  3 

201,  23  S.  W.  585 ;  and  People  v.  Hall,  94  Cal.  595,  599,  30  Pac.  7),  are 
precisely  in  point  with  the  present  case,  in  that  the  alleged  declarant 
Nvas  shown  to  be  deceased  at  the  time  of  the  trial,     *     *     * 

"The  danger  of  admitting  hearsay  evidence  is  sufficient  to  admonish 
courts  of  justice  against  lightly  yielding  to  the  introduction  of  fresh 
exceptions  to  an  old  and  well-established  rule,  the  value  of  which  is  felt 
and  acknowledged  by  all.  If  the  circumstance  that  the  eyewitnesses  of 
any  fact  be  dead  should  justify  the  introduction  of  testimony  to  es- 
tablish that  fact  from  hearsay,  no  man  could  feel  safe  in  any  property, 
a  claim  to  which  might  be  supported  by  proof  so  easily  obtained. 
*  *  *  This  court  is  not  inclined  to  extend  the  exceptions  further 
than  they  have  already  been  carried." 

This  decision  [Queen  v.  Hepburn  (1813)  7  'Cranch,  290,  295,  3  L. 
Ed.  348,  349,  per  Marshall,  C.  J.]  was  adhered  to  in  Davis  v.  Wood 
(1816)  1  Wheat.  6,  8,  4  L.  Ed.  22,  23;  Scott  v.  Ratliffe  (1831)  5  Pet. 
81,  86,  8  L.  Ed.  54,  55;  Ellicott  v.  Pearl  (1836)  10  Pet.  412,  436,  437, 
9  L.  Ed.  475,  485,  486;  Wilson  v.  Simpson  (1850)  9  How.  109,  121,  13 
L.  Ed.  66,  71 ;  Hopt  v.  Utah  (1884)  110  U.  S.  574,  581,  28  L.  Ed.  262, 
265,  4  Sup.  Ct.  202,  4  Am.  Crim.  Rep.  417.  And  see  United  States 
V.  Mulliolland  (D.  C.)  50  Fed.  413,  419. 

The  evidence  of  the  Dick  confession  was  properly  excluded. 

No  error  appearing  in  the  record,  the  judgment  is  affirmed. 

Mr. 'Justice  Van  DevantER  concurs  in  the  result. 

Mr.  Justice  Holmes,  dissenting: 

The  confession  of  Joe  Dick,  since  deceased,  that  he  committed  the 
murder  for  which  the  plaintiff  in  error  was  tried,  coupled  with  cir- 
cumstances pointing  to  its  truth,  would  have  a  very  strong  tendency 
to  make  anyone  outside  of  a  court  of  justice  believe  that  Donnelly 
did  not  commit  the  crime.  I  say  this,  of  course,  on  the  supposition  that 
it  should  be  proved  that  the  confession  really  was  made,  and  that  there 
was  no  ground  for  connecting  Donnelly  with  Dick.  The  rules  of  evi- 
dence in  the  main  are  based  on  experience,  logic,  and  common  sense, 
less  hampered  by  history  than  some  parts  of  the  substantive  law. 
There  is  no  decision  by  this  court  against  the  admissibility  of  such  a 
confession ;  the  English  cases  since  the  separation  of  the  two  coun- 
tries do  not  bind  us ;  the  exception  to  the  hearsay  rule  in  the  case  of 
declarations  against  interest  is  well  known ;  no  other  statement  is  so 
much  against  interest  as  a  confession  of  murder;  it  is  far  more 
calculated  to  convince  than  dying  declarations,  which  would  be  let  in 
to  hang  a  man  (Mattox  v.  United  States,  146  U.  S.  140,  36  L.  Ed.  917, 
13  Sup.  Ct.  50);  and  when  we  surround  the  accused  with  so 
many  safeguards,  some  of  which  seem  to  me  excessive;  I  think  we 
ought  to  give  him  the  benefit  of  a  fact  that,  if  proved,  commonly 
would  have  such  weight.  The  history  of  the  law  and  the  arguments 
against  the  English  doctrine  are  so  well  and  fully  stated  by  Mr.  Wig- 


Sec.  2)  RECOGNIZED   EXCEPTIONS  571 

more  that  there  is  no  need  to  set  tliem  forth  at  greater  length.    2  Wig- 
more,  Ev.  §§  1476,  1477. 

Mr.  Justice  Lurton  and  Mr.  Justice  Hughes  concur  in  this  dis- 
sent.^ ^ 


V.  Entries  in  the  Regular  Course  of  Business 

STATUTE  OF  7  JAMES  I,  c.  12  (1609)." 

An  Act  to  Avoid  the  Double  Payment  of  Debts. 

Whereas  divers  men  of  trades,  and  handicraftsmen  keeping  shop- 
books,  do  demand  debts  of  their  customers  upon  their  shop-books  long 
time  after  the  same  hath  been  due,  and  when  as  they  have  supposed  the 
particulars  and  certainty  of  the  wares  delivered  to  be  forgotten,  then 
either  they  themselves  or  their  servants  have  inserted  into  their  said 
shop-books  divers  other  wares  supposed  to  be  delivered  to  the  same 
parties,  or  their  use,  which  in  truth  never  were  delivered,  and  this  of 
purpose  to  increase  by  such  undue  means  the  said  debt:  (2)  and 
whereas  divers  of  the  said  tradesmen  and  handicraftsmen,  having  re- 
ceived all  the  just  debt  due  upon  their  said  shop-books,  do  oftentimes 
leave  the  same  books  uncrossed,  or  any  way  discharged,  so  as  the 
debtors,  their  executors  or  administrators,  are  often  by  suit  of  law 
enforced  to  pay  the  same  debts  again  to  the  party  that  trusted  said 
wares,  or  to  his  executors  or  administrators,  unless  he  or  they  can 
produce  sufficient  proof  by  writing  or  witnesses,  of  the  said  payment, 
that  may  countervail  the  credit  of  the  said  shop-books,  which  few  or 
none  can  do  in  any  long  time  after  the  said  payment :  (3)  be  it  there- 
fore enacted  by  the  authority  of  this  present  parliament.  That  no 
tradesman  or  handicraftsman  keeping  a  shop-book  as  is  aforesaid, 
his  or  their  executors  or  administrators,  shall  after  the  feast  of  St, 
Michael  the  archangel  next  coming,  be  allowed,  admitted  or  received 
to  give  his  shop-book  in  evidence  in  any  action  for  any  money  due 
for  wares  hereafter  to  be  delivered,  or  for  work  hereafter  to  be  done, 

31  See,  also,  Brown  v.  State,  99  Miss.  719,  55  South.  961,  37  L.  R.  A.  (N.  S.) 
345,  annotated  (1911)  excluding  the  confession  of  a  third  person  who  was  ab- 
sent from  the  jurisdiction. 

3  2 1  Taylor  on  Evidence  (10th  Am.  Ed.)  p.  502:  "This  act  is  no  doubt,  in 
practice,  always  treated  by  our  courts  of  law  as  a  dead  letter.  Yet  it,  in 
truth,  Is  still  unrepealed,  and  was  in  fact  recognized  and  made  perpetual  by 
the  Statute  Law  Revision  Act  1S63,  which  repealed  a  few  words  in  it  which 
had  originally  made  it  only  temporary.  It  is  therefore  necessary  tlaat  the 
original  act  should  be  inserted  in  this  place.  The  reason  for  this  no  doubt 
largely  is  that,  while  the  statute  is  never  noticed,  tradesmen's  boolcs  may,  by 
the  common  law,  be  referred  to,  to  what  is  technically  called  'refresh  the 
memory.'  Thev  thus,  in  effect,  and  for  practical  purposes,  become  evi^lence, 
though' not  technically  so  called,  and  not  being  technically  'evidence,'  thp  pro- 
hibition against  those  which  are  more  than  twelve  months  old  does  m<.  at- 
tach to  ttiem." 


572  HEARSAY  (Ch.  3 

above  one  year  ^'  before  the  same  action  brought,  except  he  or  they, 
their  executors  or  administrators,  shall  have  obtained  or  gotten  a  bill  of 
debt  or  obligation  of  the  debtor  for  the  said  debt,  or  shall  have  brought 
or  pursued  against  the  said  debtor,  his  executors  or  administrators, 
some  action  for  the  said  debt,  wares,  or  work  done,  within  one  year 
next  after  the  same  wares  delivered,  money  due  for  wares  dehvered, 
or  work  done. 

II.  Provided  always,  That  this  act,  or  anything  therein  contained, 
shall  not  extend  to  any  intercourse  of  traffick,  merchandising,  buying, 
selling,  or  other  trading  or  dealing  for  wares  delivered  or  to  be  deliv- 
ered, money  due,  or  work  done  or  to  be  done,  between  merchant  and 
merchant,  merchant  and  tradesman,  or  between  tradesman  and  trades- 
man, for  anything  directly  falling  within  the  circuit  or  compass  of  their 
mutual  trades  and  merchandise,  but  that  for  such  things  only,  they 
and  every  of  them  shall  be  iru  case  as  if  this  act  had  never  been 
made ;  anything  herein  contained  to  the  contrary  thereof  notwith- 
standing. 

III.  This  act  to  continue  to  the  end  of  the  first  session  of  the  next 
parliament  and  no  longer.  3  Car.  I,  c.  4.  Continued  until  the  end  of 
the  first  session  of  the  next  parliament,  and  farther  continued  by  16 
Car.  I,  c.  4. 


LEFEBURE  v.  WORDEN. 

(Court  of  Chancery,  1750.    2  Ves.  Sr.  54.) 

On  exceptions  by  defendants  to  the  Master's  report,  a  question  of 
fact  by  whom  two  several  mortgages  were  paid  off ;  whether  with  the 
money  of  Gabriel  Armiger,  whose  representatives  were  the  defend- 
ants, or  of  Judick  Armiger,  his  mother,  to  whom  the  plaintiffs  were 
representatives :  the  Master  having  reported  the  payment  to  be  by  the 
mother  and  with  her  money.     *     *     * 

An  entry  by  Gabriel  in  his  book  of  accounts  was  offered  as  evidence 
for  defendants ;  for  which  he  cited  Wilkinson  v.  Hern,  18  January, 
1744;  but  the  reading  it  was  objected  to.^* 

Lord  Chancellor  "*  said,  it  was  common  experience,  that  though 
what  is  sworn  by  an  answer  positively,  cannot  be  read  in  evidence,  yet 

83  Pitman  v.  Maddox,  1  Ld.  Raymond,  732  (1698):  "In  Indebitatus  assump- 
sit upon  a  taylor's  hill,  upon  non  assumpsit  pleaded,  and  trial  before  Holt, 
Chief  Justice,  at  the  sittings  for  Middlesex,  14  Feb.,  11  Will.  Ill,  the  plaintiff 
produced  in  evidence  his  .shop-hook  written  by  one  of  his  servants,  who  was 
dead.  And  upon  proof  of  the  death  of  the  servant,  and  that  he  used  to  make 
such  entries  of  debts,  etc.  It  was  allowed  by  Holt,  chief  justice,  to  be  good 
evidence,  without  proof  of  the  delivery  of  the  goods,  etc.  And  he  said,  this 
was  as  good  proof,  as  the  proof  of  a  witness's  hand  (who  was  dead>  sub- 
scribed to  a  bond,  etc.  And  (by  him)  notwithstanding  the  statute  of  7  Jac.  I, 
('.  VI,  says,  that  a  shop-book  shall  not  be  evidence  after  the  year,  yet  he  did 
not  hold  such  book  to  be  good  evidence  within  the  year  alone." 

»*  Statement  condensed  and  part  of  opinion  omitted. 

86  lyord  Ilardwicke. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  573 

the  court  allows  weight  to  that  answer,  so  far  as  to  take  notice  of  it  as 
a  foundation  for  an  inquiry.  If  then  an  answer,  unsupported  by  proof, 
might  have  that  weight,  an  entry  in  books  of  account  of  testator  seems 
a.  proper  ground  for  the  court  to  let  in  and  give  attention  to  it,  so  far 
as  to  be  a  foundation  for  an  inquiry.  It  was  now  open,  whether  this 
was  proper  to  be  read  as  evidence ;.  and  he  was  doubtful  about  it.  He 
inclined  not  to  read  it  at  present;  but  to  go  through  the  cause,  hear 
all  the  other  evidence  on  both  sides,  and  see  how  it  bore  connection 
with  the  several  facts,  and  judge  whether  there  was  occasion  for  it  or 
not. 

After  hearing  the  evidence,  he  was  of  opinion,  on  the  best  consid- 
eration, that  this  entry  ought,  under  circumstances  of  the  present  case 
(which  is  a  case  of  inquiry),  to  be  read ;  and  it  was  desirable  to  let  in 
all  lights  in  so  dark  a  case:  the  court  would  judge  of  its  weight  after- 
ward. It  must  be  admitted,  that,  by  the  rules  of  evidence,  no  entry 
in  a  man's  own  books  by  himself  can  be  evidence  for  himself  to  prove 
his  demand.^^  So  far  the  courts  of  justice  have  gone  (and  that  was 
going  a  good  way,  and  perhaps  broke  in  upon  the  original  strict  rules 
of  evidence),  that  where  there  was  such  evidence  by  a  servant  known 
in  transacting  the  business,  as  in  a  goldsmith's  shop  by  a  cashier  or 
book-keeper,  such  entr\'  supported  on  the  oath  of  that  servant  (2  Ves. 
sen.  193),  that  he  used  to  make  entries  from  time  to  time,  and  that  hej 
made  them  truly,  has  been  read.^^    Farther,  where  that  servant,  agent,] 

36  In  such  a  case  the  party  would,  of  course,  be  disqualified  as  a  witness 
on  the  ground  of  interest  at  common  law ;  and  whatever  the  earlier  practice 
may  have  been,  the  courts  soon  recognized  that  an  entry  by  a  person  in  his 
own  favor  was  objectionable  for  the  same  reason. 

Abbott,  C.  J.,  in  Marriage  v.  Lawrence,  3  B.  &  Aid.  142  (1819):  "It  seems 
to  me  that  this  evidence  was  rightly  rejected.  It  was  no  more  than  a  minute 
made  by  a  party  in  his  own  memorandum  book,  and  it  was,  in  fact,  making 
evidence  for  himself." 

Bagley,  J.  (in  the  same  case):  "This  falls  within  the  rule  which  prohibits 
a  party  from  making  evidence  for  himself.  *  *  *  For  if  the  entry  apply 
to  a  private  transaction  alone  it  will  fall  within  the  rule  applicable  to  pri- 
vate books  which  cannot  be  given  in  evidence  for  the  party  to  whom  they  be- 
long." 

3  7  Where  the  bookkeeper  was  a  competent  witness,  as  he  might  be  in  ac 
tions  between  third  persons,  or  where  he  was  a  mere  employ6,  keeping  the 
books  of  an  employer,  he  could,  of  course,  refer  to  the  book  to  recall  the  facts 
to  his  memory,  or  adopt  the  entry  as  one  known  to  him  to  be  correct  at  the 
time  it  was  made.    Maugham  v.  Hubbard,  ante,  p.  330. 

In  the  latter  case  it  was  necessary  to  produce  the  original  entry  In  court. 
Doe  V.  Perkins,  ante,  p.  329.  And  the  witness  in  fact  probably  read  it  as  a 
part  of  his  testimony ;  but  it  seems  that  the  entry  itself  was  not  technically 
admitted  in  evidence  under  the  English  practice. 

Patteson,  J.,  in  Rex  v.  St.  Martin's,  2  Ad.  &  El.  210  (1834):  "•  ♦  •  In 
Tanner  v.  Taylor,  cited  In  Doe  dem.  Church  v.  Perkins,  a  witness  was  not  per- 
mitted to  use  an  account  which  had  been  extracted  from  a  book  not  in  court : 
he  not  being  able  to  swear  to  the  facts  further  than  as  finding  them  in  tho 
book.  The  writing  is  not  made  evidence  by  its  having  been  used  for  the  pur- 
pose of  refreshing  the  memory ;   but  still  the  other  side  ought  to  see  it." 

See,  also,  Hawkins  v.  Taylor,  1  McCord  (S.  C.)  164  (1821):  "The  private 
memorandum  of  an  individual  is  of  itself  no  evidence;  when  produced,  it  re- 
quires to  be  supported  by  an  oath.    It  is  considered  as  aiding  the  recollection 


574  HEARSAY  (Ch.  3 

or  book-keeper  has  been  dead,  if  there  is  proof  that  he  was  the  serv- 
ant or  agent  usually  employed  in  such  business,  was  intrusted  to  make 
such  entries  by  his  master,  that  it  was  the  course  of  trade ;  on  proof 
that  he  was  dead,  and  that  it  was  his  hand-writing,  such  entry  has  been 
read  (which  was  Sir  Biby  Lake's  Case  [cited  ante,  43]),  and  that  was 
going  a  great  way;  for  there  it  might  be  objected,  that  such  entry 
was  the  same  as  if  made  by  the  master  himself :  yet  by  reason  of  the 
difficulty  of  making  proof  in  cases  of  tliis  kind,  the  court  has  gone 
so  far.  There  is  no  case,  where  an  entry  by  the  party  himself  has  been 
admitted  to  be  read,  because  it  was  merely  his  own  declaration,  unless 
Wilkinson  v.  Hern ;  of  which  he  could  not  find  he  had  taken  any  note ; 
which  might  be  from  its  being  heard  on  exceptions,  on  which  seldom 
anything  arose  as  matter  of  precedent;  but  it  was  read  there  on  a 
different  ground,  viz.  as  evidence  to  shew  the  discharge  or  application 
of  the  money  by  the  person  making  the  payment ;  for  it  was  a  general 
payment,  and  the  fact  of  payment  not  disputed.  But  whether  there 
was  such  an  authority  or  not,  it  is  a  reasonable  distinction,  that  though 
an  entry  in  a  man's  own  books  may  not  be  evidence  originally  to  prove 
a  right  or  the  demand  in  question,  yet  where  the  sum  is  clearly  made 
out  to  be  paid  out  of  his  property,  it  may  be  evidence  to  prove  the 
application  of  it,  according  to  the  rule,  that  whoever  pays  money,  it 
must  be  received  according  to  the  direction  and  mode  the  payer  im- 
poses on  it.  That  was  certainly  going  a  considerable  way,  but  does  not 
come  up  to  the  present;  because  there  the  payment  was  clearly  ad- 
mitted, and  the  question  was  only  concerning  the  application :  here  the 
payment  is  not  admitted,  but  drawn  by  inference  from  another  fact, 
that  on  that  day  the  mother  sold  the  bank  stock  she  received  the  money 
arising  from  the  sale  thereof,  which  is  argued  to  be  arising  from  the 
sale  of  the  bank  stock  of  the  son,  because  the  original  transfer  pro- 
ceeded from  him,  and  that  it  was  his  money  received  by  her :  so  that 
the  payment  made  here  is  proved  by  deduction  from  other  circum- 
stances. But  the  ground  that  must  be  gone  upon  in  this  case  is,  that 
this  is  an  inquiry  before  the  master;  on  which  it  is  directed  by  the 
court  that  all  papers,  writings,  &c.,  should  be  produced  before  him ; 
and  the  intent  was,  that  all  kinds  of  circumstances  should  be  produced ; 
and  therefore  this  paper  is  not  to  be  considered  as  offered  to  prove 
originally  the  demand  of  the  defendants ;  but  to  corroborate  the  other 
evidence  offered  for  the  defendants,  and  to  rebut  the  plaintiff's  evi- 
dence.    *     *     ♦ 

of  the  wltnoRS,  but  not  of  the  foundation  of  his  knowledge.  Thu.s  the  olork 
who  Is  called  to  prove  a  merchant's  sum,  and  Introduces  the  book  of  original 
entries  to  refresh  his  memory." 


Sec.  2)  BECOGNIZED  EXCEPTIONS  575 

FURNESS  V.  COPE. 

(Court  of  Common  Pleas,  1828.     5  Blng.  114.) 

This  was  an  action  of  assumpsit  to  recover  money  alleged  to  have 
been  paid  by  Alexander  Cope  to  the  defendant  under  a  fraudulent 
preference. 

In  order  to  show  the  state  of  the  affairs  of  the  bankrupt  and  his 
partners  just  before  their  bankruptcy,  the  plaintiff  at  the  trial,  before 
Best,  C.  J.,  London  sittings  after  Easter  term,  produced  the  ledger  of 
the  bankers  with  whom  the  bankrupt  firm  kept  cash.  The  entries  in 
this  book  were  made  by  various  persons.  One  of  the  bankers'  clerks 
stated  that  that  was  the  book  to  which  all  the  clerks  of  the  house 
referred,  to  see  whether  they  should  pay  the  checks  of  their  customers 
when  presented ;  and  it  appeared  from  that  ledger  that  at  the  time  of 
A.  Cope's  bankruptcy,  his  firm  had  nothing  remaining  in  the  bank- 
er's hands.  It  was  objected  that  this  book  was  not  evidence,  at  all 
events,  as  against  the  defendant,  and  that  the  clerks  who  made  the 
several  entries  ought  to  have  been  called.  The  objection,  however, 
was  overruled,  and  a  verdict  found  for  the  plaintiff. 

Upon  this  ground,  and  also  on  the  ground  that  the  verdict  was  con- 
trary to  evidence,  and  did  not  sustain  the  promises  as  laid  in  the  dec- 
laration, 

Wilde,  Serjt,,  moved  for  a  new  trial ;  against  which 

Merewether,  Serjt.,  showed  cause. 

It  appearing  that  the  evidence  was  not  very  clear,  the  Court  pro- 
nounced no  decision  on  the  objection  to  the  declaration,  but  granted 
a  new  trial,  in  order  that  the  question  might  be  more  distinctly  raised. 
Upon  the  subject  of  the  banker's  ledger,  however. 

Best,  C.  J.,  said,  that  it  was  properly  received  in  evidence,  and  that 
great  mischief  would  ensue  if  the  Court  were  to  hold  otherwise.  The 
inconvenience  of  calling  all  the  clerks  of  the  house  would  be  seriously 
felt,  and  without  the  book  it  would  be  impossible  to  prove  that  the  par- 
ty had  no  money  in  the  house.  To  prove  the  negative,  therefore,  the 
book,  to  which  all  referred,  was  sufficient,  although  it  might  not  be 
admissible  to  prove  the  affirmative. 


BANK  OF  MONROE  v.  CULVER  et  al. 
(Supreme  Court  of  New  York,  1842.    2  Hill,  531.) 

Assumpsit  on  a  promissory  note  for  $766.57,  The  defense  was 
usury  on  the  theory  that  this  note  was  a  renewal  in  part  of  a  note 
for  $2,(X)0.00  claimed  to  have  been  discounted  by  the  bank.  The  evi- 
dence of  one  Prentiss  tended  to  establish  this  claim. 

To  rebut  this  evidence,  the  plaintiffs  called  J.  T.  Talman,  the  cash- 
ier of  the  bank,  and  offered  to  prove  from  memoranda  and  entries  in 


576  HEARSAY  (Ch.  3 

the  hand-writing  of  the  witness,  made  at  the  time  the  transactions  to 
which  they  refer  occurred,  and  while  he  was  cashier  and  had  charge 
of  the  books  and  correspondence  of  the  bank — which  memoranda  and 
entries  the  witness  would  swear  he  believed  were  truly  and  correctly 
made — the  manner  in  which  the  $2,000  note  came  into  the  bank,  and 
in  which  the  same  was  paid ;  although  independent  of  such  memoranda 
and  entries  the  witness  had  no  recollection  of  the  facts,  and  even  after 
having  his  memor}-  refreshed  by  their  examination,  he  could  not  tes- 
tify to  the  facts  independent  of  the  entries  and  memoranda.  To  this 
evidence  the  defendants  objected;  but  the  objection  was  overruled, 
and  the  defendants  excepted.'* 

Bronson,  J.  The  defendants  attempted  to  prove  that  the  two 
thousand  dollar  note  had  been  discounted  by  the  plaintiffs.  In  an- 
swer to  this  evidence,  the  plaintiffs  proposed  to  show  when,  how 
and  for  what  purpose  the  note  came  into  the  bank ;  and  that  they 
had  no  connection  with  it  beyond  that  of  collecting  and  remitting  the 
money.  If  the  proof  which  they  offered  was  admissible,  their  case 
was  fully  made  out.  The  testimony  of  Cashier  Talman,  taken  in  con- 
nection with  the  letter  of  Johnson,  the  endorsement  made  upon  it  at 
the  time  it  was  received,  and  the  entries  then  made  by  the  witness  in 
the  plaintiffs'  book,  showed,  or,  at  the  least,  tended  to  show,  that  the 
note  came  into  the  bank  on  a  particular  day  through  the  post  office, 
and  in  the  usual  course  of  business — that  it  was  received  for  collec- 
tion on  account  of  the  Ontario  Branch  Bank,  and  that  the  money  was 
collected  and  remitted  to  that  bank.  This  testimony  went  far  to  prove 
that  Prentiss,  the  defendants'  witness,  was  mistaken  in  supposing  the 
note  was  discounted  by  the  plaintiffs.  And  in  addition  to  this,  it  was 
proved  that  it  did  not  appear  by  the  plaintiffs'  books  that  they  had 
ever  discounted  such  a  note. 

But  the  question  whether  the  plaintiffs  were  entitled  to  a  verdict, 
does  not  arise  upon  this  bill  of  exceptions.  The  only  questions  made 
by  the  bill  are,  whether  the  proofs  offered  by  the  plaintiffs  were  in 
their  own  nature  admissible,  and  whether  they  had  a  legal  tendency  to 
make  out  the  plaintiffs'  case. 

This  brings  us  to  the  enquiry  whether  the  original  entries  and  mem- 
oranda were  properly  received  in  evidence.  The  defendants  insist  that 
they  could  only  be  used  for  the  purpose  of  refreshing  the  recollection 
of  the  witness,  and  not  as  evidence  to  the  jury.  I  may  here  remark, 
that  the  entries  and  memoranda  were  made  in  the  usual  course  of 
business,  and  are  verified  in  the  most  ample  manner  by  the  witness 
who  made,  and  whose  duty  it  was  to  make  them.  The  proof  could  not 
well  have  been  more  satisfactory  than  it  is.  But  the  witness  was  un- 
able to  call  to  mind  the  original  transaction ;  and  the  question  is, 
whether  memoranda  and  entries  thus  verified,  should  be  allowed  to 
speak  for  themselves.     I  think  they  should.     Although  it  w^s  not  then 

*''  statement  fonrlensed. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  577 

absolutely  necessary  to  pass  upon  the  question,  it  was  fully  considered 
in  Merrill  v.  Ithaca  &  Owego  R.  R.  Co.,  16  Wend.  586,  30  Am.  Dec. 
130,  and  we  came  to  the  conclusion  that  evidence  of  this  character 
was  admissible.  Lawrence  v.  Barker,  5  Wend.  301,  does  not  lay  down 
a  different  rule.  The  memorandum  in  that  case  was  not  made  in  the 
usual  course  of  business,  but  only  for  the  convenience  of  the  witness. 
But  here  the  memoranda  and  entries  were  made  in  the  usual  course  of 
business,  and  as  a  part  of  the  proper  employment  of  the  witness.  I  do 
not  see  how  it  is  possible  to  doubt  that  such  evidence  ought  to  be  re- 
ceived. There  are  a  multitude  of  transactions  occurring  every  day 
in  banks,  the  offices  of  insurance  companies,  merchants'  stores,  and 
other  places,  which,  after  the  lapse  of  a  very  brief  period,  cannot  be 
proved  in  any  other  way.  It  is  not  to  be  supposed  that  officers  and 
clerks  in  large  trading  and  other  business  establishments,  can  call  to 
mind  all  that  has  been  done  in  the  course  of  their  employment;  and 
when  their  original  entries  and  memoranda  have  been  duly  authenticat- 
ed, and  there  is  nothing  to  excite  suspicion,  there  can  be  no  great  dan- 
ger in  allowing  them  to  be  laid  before  the  jury. 

The  objection  to  the  letter  of  Johnson  seems  to  have  been  made  on 
the  ground  that  the  witness  had  no  present  recollection  of  having  re- 
ceived it,  but  was  obliged  to  depend  upon  his  endorsement  on  the 
letter,  and  his  entries  made  the  same  day  in  the  books  of  the  bank. 
If  that  was  the  only  ground  of  objection,  the  question  has  been  al- 
ready sufficiently  considered.  If  the  defendants  intended  to  go  fur- 
ther, and  insist  that  the  declarations  of  Johnson  were  not  evidence  in 
this  action,  they  should  have  said  so  at  the  time.  But  if  they  had 
made  the  point  on  the  trial,  it  would  have  been  unavailing.  The  letter 
contained  nothing  beyond  a  statement  that  the  note  was  sent  for  col- 
lection and  credit.  That  statement,  in  connection  with  the  other  evi- 
dence, went  to  show  for  what  purpose  the  note  was  sent  by  the  one 
bank  and  received  by  the  other.  It  constituted  a  part  of  the  transac- 
tion, and  as  such  was  clearly  admissible  evidence.  If  Johnson  had 
called  in  person  and  delivered  the  note,  saying  he  left  it  for  collec- 
tion, his  declaration  would  have  been  admissible  as  part  of  the  res 
gestae;  and  his  written  declaration  accompanying  the  note  stands  on 
the  same  principle. 

If  the  two  thousand  dollar  note  had  been  discounted  by  the  plain- 
tiffs, that  fact  would,  in  the  ordinary  course  of  business,  have  ap- 
peared upon  the  books  of  the  bank.  The  fact  that  there  was  no  such 
entry  in  the  books  was,  I  think,  proper  evidence  for  the  consideration 
of  the  jury. 

New  trial  denied." 

39  And  so  in  Shove  v.  Wiley,  18  Pick.  (Mass.)  558  (1836);  Humphreys  r. 
Spear,  15  111.  275  (1853) ;    Smith  v.  Beattie,  57  Mo.  281  (1874). 

For  the  u.se  of  casual  memoranda,  see  Haven  v.  Wendell,  ante,  p.  332 ;  Peck 
V.  Valentine,  ante,  p.  338. 

HiNT.Ev. — 37 


578  HEARSAY  '"t~^    (Ch.  3 

MOORE  V.  AlEACHAM. 

(Court  of  Appeals  of  New  York,  1S51.     10  N.  T.  207.) 

This  was  an  action  of  trespass  for  obtaining  from  the  plaintiff  a 
quantity  of  sheathing  copper  under  the  alleged  false  and  fraudulent 
representations  that  the  defendant  was  the  agent- of  the  ship  Thomas 
Williams,  and  her  owners,  and  authorized  to  charge  her  and  them 
with  the  price,  whereby  the  plaintiff  was  induced  to  sell  and  deliver 
the  copper,  and  subsequently  to  sue  one  of  the  owners  for  the  price ; 
in  which  action  the  plaintiff  was  defeated  by  the  defendant's  testimony 
that  he  had  no  such  authority,  in  consequence  of  which  the  plaintiff 
lost  the  expenses  of  that  suit  in  addition  to  the  value  of  the  copper. 
There  was  in  addition  a  count  de  bonis  asportatis,  for  taking  and 
carrying  away  the  copper,  and  a  count  in  trover  for  its  conversion. 

On  the  trial  in  the  Superior  Court  of  New  York  city,  certain  excep- 
tions were  taken  to  the  rulings  of  the  court,  which  are  stated  in  the 
opinion.  The  jury  found  a  verdict  for  the  defendant,  and  the  judgment 
entered  thereon  was  aflirmed  by  the  Supreme  Court,  whereupon  the 
plaintiff'  brought  this  appeal. 

Gray,  J.*"  The  first  question  presented  is  upon  the  exception  taken 
by  the  plaintiff's  counsel  to  the  decision  of  the  judge,  in  refusing  to 
permit  an  entry  made  in  the  plaintiff's  books  to  be  read  as  evidence 
of  the  fact  that  the  copper  there  charged  had  been  sold  to  the  ship 
Thomas  Williams  and  owners.  This  entry  was  not  made  by  the  plain- 
tiff, but  by  his  clerk,  who  testified  that  the  bargain  was  made  between 
the  plaintiff  and  defendant  in  his  presence.  In  such  case  the  party  is 
not  entitled  to  the  benefit  of  his  books  as  evidence.  He  had  a  clerk  who 
heard  the  bargain  and  made  the  entry.  Whether  the  entry  was  jus- 
tified by  the  facts  must  depend  upon  the  clerk's  recollection  and  other 
evidence  of  the  bargain.  The  question  before  the  jury  was,  whether 
or  not  the  bargain  made  warranted  the  entry.  But  it  was  claimed  as  a 
part  of  the  res  gestae,  and  as  such  was  permitted  to  be  read  to  the  jury 
as  evidence  of  the  mere  fact  that  such  an  entry  was  made.  Of  this 
ruling  the  plaintiff  had  no  reason  to  complain.  The  entry  was  neither 
the  act  nor  the  declaration  of  the  plaintiff'  made  at  the  time,  but  that 
of  his  clerk,  who  was  upon  the  stand  to  assign  the  reasons  why  the  en- 
try was  thus  made.     *     *     * 

*o  Part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  579 

DOE  dem.  PATTESHALL  v.  TURFORD. 
(Court  of  King's  Bench,  1832.     3  Barn.  &  Adol.  890.) 

Ejectment.  At  the  trial  before  Littledale,  J.,  at  the  Hereford  as- 
sizes, 1832,  it  appeared  that  the  defendant  was  tenant  from  year  to 
year  to  the  lessor  of  the  plaintiff;  that  on  the  18th  of  July,  the  lessor 
of  the  plaintiff  had  instructed  Mr.  Bellamy,  who  was  then  in  partner- 
ship with  Mr.  William  Patteshall,  to  give  the  defendant  notice  to 
quit  at  the  following  Candlemas;  that  Bellamy,  on  the  19th  of  July, 
told  his  partner,  William  Patteshall,  who  usually  managed  the  business 
of  the  lessor  of  the  plaintiff,  of  the  instructions  which  he  had  received ; 
that  the  latter  prepared  three  notices  to  quit  (two  of  them  being  to  be 
served  on  other  persons),  and  as  many  duplicates ;  that  he  went  out, 
and  returned  in  the  evening,  and  delivered  to  Mr.  Bellamy  three  du- 
plicate notices  (one  of  which  was  a  duplicate  of  the  notice  to  the  de- 
fendant) endorsed  by  him,  Patteshall.  It  was  proved  diat  the  other 
notices  to  quit  had  been  delivered  by  Patteshall  to  the  tenants  for 
whom  they  were  intended.  The  defendant,  after  the  19th  of  July, 
requested  Mr.  Bellamy  that  he  might  not  be  compelled  to  quit.  It 
was  proved  by  Mr.  Bellamy  to  have  been  the  invariable  practice  for 
their  clerks,  who  usually  served  the  notices  to  quit,  to  endorse  on  a 
duplicate  of  such  notice  a  memorandum  of  the  fact  and  time  of  serv- 
ice. The  duplicate  in  question  was  so  endorsed.  Mr.  Patteshall  him- 
self had  never,  to  the  knowledge  of  Mr.  Bellamy,  served  any  other 
notices  than  these  three.  Mr.  Patteshall  died  on  the  26th  of  February, 
1832.  It  was  objected,  that  the  endorsement  on  the  copy  of  the  notice 
to  quit  in  the  handwritirj  of  Patteshall  was  not,  after  his  death,  ad- 
missible evidence  of  the  delivery  of  the  notice  to  the  defendant.  The 
learned  Judge  received  the  evidence,  but  reserved  liberty  to  the  defend- 
ant to  move  to  enter  a  nonsuit  if  the  court  should  be  of  opinion  that  it 
ought  not  to  have  been  admitted.  A  rule  nisi  having  been  obtained  for 
that  purpose. 

Parke,  J.*^  I  am  also  of  opinion  that  this  rule  ought  to  be  dis- 
charged. The  only  question  in  the  case  is,  whether  the  entry  made 
by  Mr,  Patteshall  was  admissible  in  evidence,  and  I  think  it  was,  not( 
on  the  ground  that  it  was  an  entry  against  his  own  interest,  but  because} 
the  fact  of  such  an  entry  was  made  at  the  time  of  his  return  from} 
his  journey,  was  one  of  the  chain  of  facts  (there  are  many  others)( 
from  which  the  delivery  of  the  notice  to  quit  might  lawfully  be  infer-} 
red.  That  the  delivery  might  be  proved  by  direct  evidence,  as  by  the 
testimony  of  the  person  who  made  it,  or  saw  it  made ;  it  might  bo 
proved  also  by  circumstantial  evidence,  as  many  facts  ordinarily  are 
which  are  of  much  greater  importance  to  the  interests  of  mankind,  and 
followed  by  much  more  serious  consequences.     In  this  point  of  view, 

■*!  Opinions  of  Lord  Tenterden,  C.  J.,  and  Littledale,  J.,  omitted. 


580  HEARSAY  (Ch.  3 

it  is  not  the  matter  contained  in  the  written  entry  simply  which  is  ad- 
missible, but  the  fact  that  an  entry  containing  such  matter  was  made 
at  the  time  it  purports  to  bear  date,  and  when  in  the  ordinary  course 
of  business  such  an  entry  would  be  made  if  the  principal  fact  to  be 
proved  had  really  taken  place.  The  making  of  that  written  contem- 
poraneous memorandum  is  one  circumstance;  the  request  by  the  les- 
sor of  the  plaintiff  to  Mr.  Bellamy  to  give  the  notice  to  quit,  the  sub- 
sequent communication  by  Bellamy  to  Patteshall,  his  departure  and 
return,  when  the  entry  was  made,  the  actual  delivery  of  other  notices 
to  quit  to  other  tenants  taken  out  at  the  same  time,  the  defendant's 
request  that  he  might  not  be  obliged  to  quit,  are  other  circumstances, 
which,  coupled  with  the  proof  of  the  practice  in  the  office,  lead  to  an 
inference,  beyond  all  reasonable  doubt,  that  the  notice  in  question  was 
delivered  at  the  time  stated  in  the  memorandum.  The  learned  coun- 
sel for  the  defendant  has  contended  that  an  entry  is  to  be  received  in 
two  cases  only ;  first,  where  it  is  an  admission  against  the  interest  of  a 
deceased  party  who  makes  it,  and  secondly,  where  it  is  one  of  a  chain 
or  combination  of  facts,  and  the  proof  of  one  raises  a  presumption 
that  another  has  taken  place;  but  it  is  contended  that  the  facts  here 
do  not  fall  within  the  latter  branch  of  the  rule,  because  Mr.  Patteshall, 
■who  served  the  notice,  was  not  shown  to  have  been  in  the  habit  of  serv- 
ing notices.  I  agree  in  the  rule  as  laid  down,  but  I  think  that,  in  the 
second  case,  a  necessary  and  invariable  connexion  of  facts  is  not  re- 
quired;  it  is  enough  if  one  fact  is  ordinarily  and  usually  connected 
with  the  other :  and  it  appears  to  me  that  the  present  case  is  not,  in  its 
circumstances,  an  exception  to  that  part  of  the  rule.  It  was  proved 
to  be  the  ordinary  course  of  this  office  that  when  notices  to  quit  were 
served,  endorsements  like  that  in  question  were  made;  and  it  is  to  be 
presumed  that  Mr.  Patteshall,  one  of  the  principals,  observed  the  rule 
of  the  office  as  well  as  the  clerks.  It  is  to  be  observed,  that  in  the  case 
of  an  entry  falling  under  the  first  head  of  the  rule,  as  being  an  ad- 
mission against  interest,  proof  of  the  handwriting  of  the  party,  and 
his  death,  is  enough  to  authorize  its  reception;  at  whatever  time  it 
was  made  it  is  admissible ;  but  in  the  other  case  it  is  essential  to  prove 
that  it  was  made  at  the  time  it  purports  to  bear  date ;  it  must  be  a  con- 
temporaneous entry.  It  is  on  the  ground  above  stated,  as  I  conceive, 
that  similar  evidence  was  received,  in  Lord  Torrington's  case,  1  Salk. 
285  ;  2  Ld.  Raym.  873  ;  Pritt  v.  Fairclough,  3  Campb.  305  ;  Hagedorn  v. 
Reid,  3  Campb.  379;  Champneys  v.  Peck,  1  Stark.  N.  P.  C.  404,  and 
Pitman  v.  Maddox,  2  Salk.  690,  and  others  of  the  same  nature. 

Taunton,  J.  I  am  of  the  same  opinion.  A  minute  in  writing  like 
the  present,  made  at  the  time  when  the  fact  it  records  took  place,  by 
a  person  since  deceased,  in  the  ordinary  course  of  his  business,  corrob- 
orated by  other  circumstances  which  render  it  probable  that  that  fact 
occurred,  is  admissible  in  evidence.  Those  corroborating  circum- 
stances must  be  proved;  and  here  many  such  circumstances  did  ap- 
pear.    The  principle  is  established  by   Price  v.   Lord   Torrington,   X 


Sec.  2)  RECOGNIZED   EXCEPTIONS  581 

Salk,  285,  2  Ld.  Raym.  873,"  and  the  other  cases  which  have  been 
referred  to.  It  may  be  said  that  these  were  mere  nisi  prius  decisions ; 
but  in  Evans  v.  Lake,  Bull,  N.  P.  282,  which  was  a  trial  at  bar,  the 
question  was,  whether  eight  parcels  of  Hudson's  Bay  stock  were 
bought  in  the  name  of  Mr.  Lake  on  his  own  account,  or  in  trust  for 
Sir  Stephen  Evans.  To  prove  the  latter  of  these  positions,  the  as- 
signees of  Sir  Stephen  Evans,  who  were  the  plaintiffs,  first  showed 
that  there  was  no  entry  in  the  books  of  Mr.  Lake  relating  to  this 
transaction;  they  then  produced  receipts  in  the  possession  of  Sir  S. 
Evans  for  the  payment  of  part  of  the  stock,  and  on  the  back  of  the 
receipts  there  was  a  reference  in  the  handwriting  of  Sir  Stephen's 
book-keeper,  since  deceased,  to  a  certain  shop-book  of  Sir  Stephen. 
Upon  this,  the  question  was,  whether  the  book  so  referred  to,  in  which 
was  an  entry  of  the  payment  of  money  for  the  whole  of  the  stock, 
should  be  read.  And  the  Court  of  King's  Bench,  upon  the  trial,  ad- 
mitted the  entry,  not  only  as  to  the  part  mentioned  in  the  receipts, 
but  also  as  to  the  remainder  of  the  stock  in  the  hands  of  Mr.  Lake's 
son. 

Rule  discharged. 


'fc)^ 


.     NORTH  BANK  v.  ABBOT. 

(Supreme  Judicial  Court  of  Massachusetts,  1833.     13  Pick.  465,  25  Am.  Dec. 

334.) 

Assumpsit  upon  a  promissory  note  for  $1187,  dated  February  7, 
1828,  signed  by  Willis  Barnabee,  payable  to  the  defendant  or  his  order, 
in  sixty  days  from  date,  at  either  of  the  banks  in  Boston,  and  indorsed 
by  the  defendant  to  the  plaintiffs.*^ 

Shaw,  C.  J.  *  *  *  It  was  further  contended,  that  due  notice  to 
the  defendant  as  indorser,  was  not  given  and  proved,  as  required  by 
laAv,  to  charge  him. 

It  was  in  evidence,  that  the  messenger  of  the  bank,  whose  duty  it 
was  to  give  notices,  had  absconded  before  the  trial;    that  diligent  in- 

42  Tliis  case  is  reported  as  follows  in  1  Salkeld,  285  (1703):  "The  plaintiff 
being  a  brewer,  brought  an  action  against  the  Earl  of  Torrington  for  beer 
sold  and  delivered;  and  the  evidence  given  to  charge  the  defendant  was, 
that  the  usual  way  of  the  plaintiff's  dealing  was,  tliat  the  drayman  came 
every  night  to  the  clerk  of  the  brewhouse,  and  gave  him  an  account  of  the 
beer  they  had  delivered  out,  which  he  set  down  in  a  book  kept  for  that  pur- 
pose, to  Which  the  draymen  set  their  hands ;  and  that  the  drayman  was  dead, 
but  that  this  was  his  hand  set  to  the  book:  And  tliis  was  held  good  evidence 
of  a  delivery ;    otherwise  of  the  shop-book  itself  singly,  without  more." 

It  does  not  appear  from  any  report  of  the  case  that  any  circumstances  ex- 
cept the  regular  practice  was  proved.  In  Poole  v.  Dicas,  1  Bingham  N.  C. 
849  (1835),  some  of  the  opinions  lay  stress  on  the  fact  that  additional  corrob- 
orating circumstances  appeared.  And  so  in  the  similar  case  of  Welsh  v.  Bar- 
-ett,  15  Mass.  380  (1819).  On  this  point  compare  Nicholls  v.  Webb,  8  Wheat. 
326,  5  L.  Ed.  628  (1823). 

*3  statement  condensed  and  part  of  opinion  omitted. 


582 


HEARSAY  (Cll.  3 


quiries  had  been  made  with  a  view  to  obtain  his  testimony,  which  had 
proved  wholly  unavailing ;  whereupon  evidence  was  offered  of  a  min- 
ute book  kept  by  him,  with  the  testimony  of  the  cashier,  explaining  the 
manner  of  keeping  and  the  purposes  for  which  the  book  was  kept. 
This  was  objected  to  and  admitted. 

No  case  is  precisely  in  point;  but  upon  the  authority  of  analogous 
cases,  and  the  reason  of  the  principle,  we  think  this  evidence  was  right- 
ly admitted. 

In  Welsh  v.  Barrett,  15  Mass.  380,  it  was  held,  that  such  a  book 
kept  by  the  messenger  of  a  bank,  after  his  decease,  is  admissible  to 
establish  demands  and  notices.     The  ground  is,  tliat  they  are  memo- 
randa, made  by  an  officer  in  the  ordinary  course  of  his  business,  and. 
before  any  controversy  or  question  has  arisen. 

In  Nichols  v.  Webb,  8  Wheat.  326,  5  L.  Ed.  628,  it  was  decided,  that 
the  minute  book  of  a  deceased  notary  might  be  received  in  evidence 
for  the  like  puq^ose. 

In  the  case  of  Union  Bank  v.  Knapp,  3  Pick.  96,  15  Am.  Dec.  181,  it 
was  decided  by  this  Court,  that  the  books  of  a  bank,  which  had  been 
kept  by  a  clerk  who  had  become  insane,  were  admissible,  upon  proof 
of  his  handwriting  and  that  the  books  were  kept  by  him  in  the  regular 
course  of  his  business. 

The  only  distinction  between  these  cases  and  the  case  at  bar  is, 
that  here,  for  aught  that  appears,  the  witness  is  still  living.  But  it 
was  satisfactorily  proved,  not  merely  that  the  witness  was  out  of  the 
jurisdiction  of  the  Court,  but  that  it  had  become  impossible  to  procure 
his  testimony.  We  cannot  distinguish  this,  in  principle,  from  the  case 
of  death,  or  alienation  of  mind.  The  ground  is,  the  impossibility  of  ob- 
taining the  testimony;  and  the  cause  of  such  impossibility  seems  im- 
material. 

It  was  alleged,  but  not  strongly  urged,  that  the  book  did  not  prove 
notice  to  the  indorser.  This  was  rightly  left  to  the  jury  with  the  ex- 
planation given  by  the  cashier.  The  entry  in  the  book  was  a  short 
memorandum  stating  the  amount  of  the  note,  the  day  it  fell  due  and 
the  names  of  the  promisor  and  indorser,  with  a  mark  against  them 
which,  it  was  testified  by  the  cashier,  indicated  that  they  had  been  no- 
tified. This  was  competent  evidence.  Such  a  memorandum  is  not  like 
a  contract  or  other  written  instrument;  it  is  more  like  a  writing  in 
cypher,  or  a  foreign  language,  which  may  need  an  interpreter.  With 
the  testimony  of  the  cashier,  as  to  the  meaning  and  effect  of  the  en- 
try, it  was  competent  evidence,  from  which  the  jury  might  infer  the 
fact  of  notice.     +     *     * 

Judgment  on  the  verdict.''* 

■•*  In  tho  ofirlior  rases  the  more  fibsoiu'e  of  the  witness  from  the  .Inrisdlc- 
tlon  was  not  iciiardod  as  a  sullicieut  gi-ovind  lor  athuittini,'  the  book  without 
his  testhiionv.  Cooper  v.  Marsden,  1  E.sp.  1  (179.*'.);  Brewster  v.  Doane,  2 
Hill  (N.  Y.)  ry.n  (1.S12).    But  see  Foster  v.  Siiiklcr,  1  Bay  (S.  C.)  40  (1750). 


Sec.  2)  RECOGNIZED   EXCEPTIONS  BS3 

EASTMAN  V.  MOULTON. 
(Superior  Court  of  Judicature  of  New  Hampshire,  1825.    3  N.  H.  156.) 

Assumpsit.  The  defendant  pleaded  the  general  issue,  and  filed,  by- 
way of  set-off,  an  account,  one  item  of  which  was  a  charge  of  1109 
yards  of  cloth,  and  another  item  a  charge  of  187  yards  of  cloth. 

The  cause  was  tried  here  at  February  term,  1824. 

To  prove  his  set-off,  the  defendant  offered  in  evidence  his  book  of 
accounts,  accompanied  with  his  own  oath,  that  the  book  offered  con- 
tained the  original  entries  of  the  articles  mentioned  in  his  set-off: 
that  the  entries  were  made  at  the  times  they  purported  to  be  made,  and 
at  or  near  the  time  when  the  respective  articles  were  delivered.  He 
wds  then  cross-examined  by  the  plaintiff's  counsel  in  the  same  man- 
ner, that  witnesses  in  chief  are  cross-examined ;  upon  which  the  de- 
fendant's counsel  proposed  to  examine  him  as  a  witness  in  chief ;  and 
this  was  permitted  by  the  court.  In  the  course  of  his  examination  he 
stated,  tliat  the  .said  parcels  of  cloth,  mentioned  in  the  set-off,  were  de- 
livered not  to  the  plaintiff,  but  to  the  servants  of  the  plaintiff.  After 
the  arguments  of  counsel  to  the  jury,  on  both  sides,  were  closed,  the 
plaintiff's  counsel  objected,  that  the  book  of  accounts  could  not  go  to 
the  jury,  as  evidence  of  the  delivery  of  the  cloth,  because  it  appeared, 
that  it  was  in  the  power  of  the  defendant  to  produce  better  evidence, 
the  testimony  of  those  to  whom  it  was  delivered.  But  the  court  over- 
ruled the  objection,  as  made  too  late. 

The  jury  having  returned  a  verdict  in  favor  of  the  defendant,  the 
plaintiff  moved  the  court  to  grant  a  new  trial,  on  the  ground,  that  the 
defendant  had  been  improperly  admitted  to  testify  in  his  own  cause, 
as  a  witness  in  chief,  and  that  the  book  of  the  defendant  had  been  im- 
properly submitted  to  the  jury,  as  evidence  of  the  delivery  of  the 
cloth. 

Richardson,  C.  J.,  delivered  the  opinion  of  the  court. 

It  has  long  been  the  settled  practice  in  this  state,  to  permit  the  ac- 
count books  of  a  party,  supported  by  his  supplementary  oath,*°  to  go 
to  the  jury,  as  evidence  of  the  delivery  of  articles  sold,  and  of  the 
performance  of  work  and  labor.  But  as  this  is  in  truth  the  admission 
of  a  party  to  b^  a  witness  in  his  own  cause,  the  practice  is  confined  to 

45  Duncan,  J.,  in  Curren  v.  Crawford,  4  Serg.  &  R.  (Pa.)  3  (ISIS):  "Books 
of  original  entries,  verified  by  the  oath  of  the  party,  and  that  the  entries  were 
made  by  him,  have  always  been  received  in  evidence  in  Pennsylvania,  from 
necessity,  as  business  is  very  often  carried  on  by  the  principal,  and  many  of 
our  tradesmen  do  not  Iceep  clerics.  In  the  country  there  would  be  a  stagna- 
tion of  all  CTcdit,  if  this  were  not  the  case.  It  is  superfluous  to  cite  authori- 
ties to  prove  a  course  of  proceeding,  so  notorious  to  all  conversant  in  courts 
of  justice.  The  same  necessity  has  introduced  the  same  rule  in  otlier  states. 
In  South  Carolina.  Foster  v.  Sinkler,  1  Bay,  40  [17S6] ;  Spence  v.  Sanders. 
1  Bay,  119  [1790].  In  Massachusetts,  2  Mass.  221  [3  Am.  Doc.  45  (ISOG)j, 
Cocswell  V.  Dolliver.  In  New  York,  Vosburgh  v.  Thayer,  12  Johns.  4G1 
(1S16)." 


( 

5S4  HEARSAY  (Cll.  3 

cases,  where  it  may  be  presumed  there  is  no  better  evidence,  and  has 
many  Hmitations. 

In  the  first  place,  it  must  appear,  that  the  charges  are  in  the  hand- 
writing of  the  party,  who  is  sworn ;  because,  if  the  charges  are  in 
the  handwriting  of  a  third  person,  such  third  person  is  presumed  to 
know  the  facts,  and  may  be  a  witness ;  so  that  there  is  no  necessity  of 
admitting  the  party  to  testify  in  his  own  cause.  The  book  is,  therefore, 
in  such  a  case,  rejected. 

The  charges  in  the  handwriting  of  the  party  must  appear  in  such 
a  state,  that  they  may  be  presumed  to  have  been  his  daily  *"  minutes 
of  his  transactions  and  business.  For  if  it  appear  in  any  way,  that 
many  charges,  purporting  to  be  made  at  different  dates,  were  in  fact 
made  at  the  same  time,  the  book  is  not  evidence.  The  charges  must 
appear  to  be  the  original  or  first  entries  of  tlie  party,  made  at  or  near 
the  time  of  the  transactions  to  be  proved ;  and  if  tlie  contrary  appear, 
the  book  cannot  be  admitted  as  evidence. 

There  must  be  no  fraudulent  appearances  upon  the  book,  such  as 

*8  Shaw,  C.  J.,  in  Mathes  v.  Robinson,  8  Mete.  269,  41  Am.  Dec.  505  (1S44): 
"So  long  as  the  rule  of  law  is  allowed  to  prevail,  that  the  account  books  of 
a  plaintiff,  verified  by  his  oath,  may  be  admitted  to  prove  charges  for  services 
done  and  yoods  sold,  much  must  depend  upon  the  appearance  and  character 
of  the  book  offered  as  evidence,  and  the  view  taken  of  it  by  the  judge  who 
tries  the  cause.  It  is  true  that  the  question,  whether  a  book  is  competent 
to  go  to  the  jury,  is  a  question  of  law;  but  as  the  law  had  prescribed  no 
mode  in  which  a  book  shall  be  kept,  to  make  it  evidence,  the  question  of  com- 
petency must  be  determined  by  the  appearance  and  character  of  the  book, 
and  all  the  circumstances  of  the  case,  indicating  that  it  has  been  kept  hon- 
estly, and  with  reasonable  care  and  accuracy,  or  the  reverse.  In  the  present 
case,  the  court  can  perceive  no  conclusive  objection  to  the  admission  of  the 
book  called  a  time  book.  It  is  a  book  kept  in  a  tabular  form,  in  which  the 
days  of  the  month  are  placed  at  the  head  of  the  column,  and  the  name  of 
the  workman  on  the  side;  and  at  the  end  of  each  day,  or  near  it,  a  figure 
is  put  down  at  the  place  of  intersection,  say  1,  y^  or  ^4  ;  indicating  thereby, 
that  the  person  has  worked  the  whole  or  a  fraction  of  that  day.  It  cannot 
be  objected  that  the  time  is  put  down  in  figures  for  that  is  the  case  in  all 
modes ;  nor  that  It  was  not  an  original  entry,  because  that  fact  must  depend, 
as  in  other  cases,  on  the  oath  of  the  party,  to  prove  that  it  was  made  at  or 
about  the  time  it  purports  to  be  made,  and  by  the  proper  party.  It  appears 
to  us  to  be  intelligible,  and  not  more  liable  to  fraudulent  fabrication  or  al- 
teration than  entries  kept  in  ledger  form,  which  have  been  held  to  be  good. 
Faxon  v.  HolHs,  13  Mass.  427  [1816];  Rodman  v.  Hoop,  1  Dall.  85,  1  L.  Ed. 
47  [1784].  The  objection  to  the  book,  so  far  as  it  tended  to  prove  services 
of  the  apprentice,  because  the  apprentice  might  have  been  called  as  a  wit- 
ness, seems  to  us  untenable,  and  founded  on  a  mistaken  view  of  the  nature 
of  this  species  of  evidence.  The  use  of  one's  own  books,  verified  by  his  oath, 
is  not  secondary  evidence,  nor  is  it  necessary  to  its  admission  first  to  show 
the  loss  of  other  evidence.  It  is  original,  but  feelile  and  unsatisfactory  evi- 
dt-nce.  When  such  evidence  is  offered,  and  it  is  apparent  from  the  case  that 
the  party  producing  it  could  probably  lurnish  bettor  evidence,  and  he  fails 
so  to  do,  or  to  account  for  its  ab.sencc,  it  must  greatly  diminisli  the  credit 
due  to  tlie  feeble  evidence.  But  this  Is  a  consideration  which  goes  to  its 
credit,  and  not  to  its  competency,  and  is  for  the  jury,  and  not  for  the  court. 
Holmes  v.  Marden,  12  Pick.  [Mass.]  169  []S:',1]." 

See,  also,  Tost  v.  Kcnnersou,  72  Vt.  :!11,  47  Atl.  1072,  52  I..  R.  A.  5.^.2,  82 
Am.  St.  Rep.  918  (1900;,  annotated,  where  u  largo  number  of  the  cases  are 
collected. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  585 

gross  alterations.  And  where  it  appears  by  post  marks,  or  otherwise, 
that  the  account*  has  been  transferred  to  another  book,  such  other  book 
must  be  produced. 

If  it  appear  by  the  book  itself,  or  by  the  examination  of  the  party, 
that  there  is  better  evidence,  the  book  cannot  go  to  the  jury  as  evidence. 
Thus,  if  an  article  be  charged  in  the  book  as  delivered  by  or  to  a  third 
person,  or  if  the  party  on  his  examination  admit  that  to  be  the  fact, 
the  book  is  not  evidence  of  the  delivery  of  such  article. 

The  party,  when  called,  is  in  the  first  instance  permitted  to  state 
only,  that  the  book  produced  is  his  book  of  original  entries ;  that  the 
charges  are  in  his  handwriting ;  that  they  were  made  at  the  times  they 
purport  to  have  been  made,  and  at  or  near  the  time  of  the  delivery  of 
the  articles,  or  of  the  performance  of  the  services.  He  may  however 
be  cross-examined  by  the  other  party;  in  which  case  his  answers  be- 
come evidence,  and  he  is  entitled  to  give  a  full  explanation  of  any  mat- 
ter, in  relation  to  which  an  inquiry  is  made  on  the  cross-examination. 
It  is  reasonable  and  proper,  that  he  should  be  made  a  witness  as  far 
as  the  opposite  side  chooses  to  make  him  one ;  and  that  as  far  as  he  is 
made  a  witness  he  should  be  at  liberty  to  give  a  full  explanation.  But, 
in  our  opinion,  a  cross-examination  does  not  entitle  him  to  go  beyond 
this.  It  does  not  entitle  him  to  testify  as  to  independent  facts,  not 
necessary  to  the  explanation  of  the  facts,  respecting  which  he  may  have 
been  questioned  upon  the  cross-examination.  It  does  not  make  him  a 
witness  in  chief  in  the  cause. 

Such,  in  our  opinion,  is  the  law  on  this  subject,  (2  Mass.  221,  3  Am. 
Dec.  45,  Cogswell  v.  Dolliver;  2  i\Iass.  569,  Prince  v.  Swett;  13 
Mass.  427,  Faxon  v.  HoUis ;  4  Mass.  457,  Prince  v.  Smith,)  and  it  is 
very  easily  applied  to  the  case  nOw  before  us. 

As  soon  as  it  appeared,  that  the  cloth  was  delivered  to  a  third  per- 
son, the  book  became  incompetent  evidence  to  prove  the  delivery  of 
that  article;  and  the  jury  ought  to  have  been  so  instructed.  It  Avas 
no  waiver  of  the  objection,  that  it  was  not  taken  until  the  arguments 
were  closed.  It  was  enough  that  the  attention  of  the  court  was  called 
to  the  subject  before  the  jury  retired.  The  objection,  in  its  nature, 
amounted  to  nothing  more  than  a  request  to  the  court  to  give  the  jury 
proper  directions  in  a  matter  of  law,  arising  in  the  cause ;  and  the  re- 
fusal of  such  a  request  is  clearly  a  good  cause  for  a  new  trial.  We 
think  also,  that  the  defendant  was  not  entitled  to  testify  as  a  witness 
in  chief. 

New  trial  granted.*^ 

4T  In  President,  etc.,  of  Union  Bank  v.  Knapp,  3  Piclc  96,  15  Am.  Dec.  181 
(1S25),  Putnam,  J.,  after  holding  that  a  bank  hook  kept  by  a  clerk  was  prop- 
erly admitted,  observed:  "It  will  be  perceived,  that  this  decision  does  not 
touch  or  enlarge  the  doctrine  of  the  admissibility  of  the  books  of  a  merchant 
or  other  person,  who  makes  the  entries  himself,  and  who  is  permitted,  accord- 
ing to  the  practice  in  Massachusetts  and  in  most,  if  not  all,  of  the  New  Eng- 
land States,  to  make  his  suppletory  oath  respecting  the  charges.  In  regard 
to  ca.sh,  the  sums  to  be  proved  in  that  manner  have  been  limited  in  this  State 


586  HEARSAY  (Ch.  3 

PELZER  V.  CRANSTON. 
(Constitutional  Court  of  South  Carolina,  1823.     2  McCord,  328.) 

Mr.  Justice  Colcock  delivered  the  opinion  of  the  court: 

The  only  question  in  this  case  is,  whether  the  books  of  the  plaintiff, 
who  is  a  schoolmaster,  were  competent  evidence  to  prove  his  account 
on  their  appearing  to  have  been  regularly  kept?  The  recorder  was  of 
opinion  that  "the  case  of  a  schoolmaster  came  within  the  principle  of 
the  authorities  in  this  state,  which  decided  that  the  original  entries  in 
books  were  prima  facie  evidence,"  and  he  therefore  decreed  for  the 
plaintiff. 

A  motion  is  now  made  for  a  new  trial,  on  the  ground  that  the  books 
were  not  evidence.  It  is  certain  the  decisions  have  gone  so  far  as  to 
permit  the  books  of  others  than  merchants  and  mechanics  to  be  given 
in  evidence,  but  the  court  have  always  kept  in  view  the  necessity  of  the 
evidence.  Now,  there  are  few  persons  in  business  who  are  furnished 
with  as  many  witnesses  as  a  schoolmaster  may  command,  and  there  is 
no  necessity  for  admitting  his  books  to  be  produced  in  evidence.  The 
decisions  have  gone  far  enough  on  this  subject,  and  the  court  are  not 
disposed  to  extend  the  principle.  They  are  unanimously  of  opinion 
that  the  books  were  improperly  admitted,  and  that  therefore  a  new 
trial  must  be  granted: 

Justices  Richardson,  Johnson,  Huger,  and  Nott,  concurred.*' 


NOLLEY  V.  HOLMES. 

(Supreme  Court  of  Alabama,  1842.     3  Ala.  642.) 

The  plaintiff  in  error  declared  against  the  defendant  in  the  Circuit 
Court  of  Baldwin,  for  goods,  wares  and  merchandise,  sold  and  de- 
livered. 

On  the  trial,  the  plaintiff  proved  that  he  was  a  merchant,  and  that 
he  had  no  clerk,  but  sold  goods  himself.  He  then  produced  his  day 
book  and  ledger,  kept  by  himself,  in  which  the  defendant  appeared  to 
be  charged  with  merchandise  sold  by  the  plaintiff,  to  the  amount  of 
one  hundred  and  sixty-nine  dollars.  It  was  proved  that  the  charges 
were  reasonable  and  proper ;  and  persons  who  had  dealt  with  the 
plaintiff  testified,  that  he  kept  correct  books,  and  his  accounts  were  fair. 

to  40  shillings,  or  G  dollars  66  cents.  But  this  decision  proceeds  upon  the 
ground  iM.-fore  stated,  warranted  by  Ihe  authorities  of  tlic  common  law,  and 
indf'poudi'Utly  of  our  local  usage,  which  admits  the  party  in  certain  casus  to 
verify  his  books  of  account  by  his  own  oath." 

*8  For  the  same  reason  It  has  been  held  tliat  the  account  hook  of  a  deceased 
person  is  not  admissiiile  to  prove  th(.'  payment  of  money  to  a  lliird  person  wbo 
would  be  competent  -as  a  witness.  Faunce  v.  (Jray,  21  I'icU.  (Mass.)  243 
(1838). 


Sec.  2)  RECOGNIZED   EXCEPTIONS  '  587 

The  defendant  moved  the  Court  to  exchide  the  plaintiff's  books  from 
the  jury  as  inadmissible  evidence,  which  motion  was  sustained;  and 
thereupon  the  plaintiff  excepted. 

A  verdict  and  judgment  being  rendered  in  favor  of  the  plaintiff  (?) 
he  has  prosecuted  a  writ  of  error  to  this  Court. 

Collier,  C.  J.  In  Moore  v.  Andrews  &  Brothers,  5  Port.  107,  it 
was  held,  that  the  admissibility  of  books  of  account  as  evidence,  was 
not  provided  for  in  this  State  by  Statute,  and  consequently  depended 
upon  the  common  law.  This  being  the  case,  it  may  be  safely  affirmed, 
that  entries  made  by  a  tradesman  himself,  stating  the  delivery  of  goods, 
are  not  evidence  in  his  favor.  1  Phil.  Ev.  266 ;  2  ibid.  C.  &  H.'s  notes, 
691.  The  law  cannot  be  admitted  to  be  otherwise,  without  disregarding 
a  very  salutary  maxim,  "nemo  debet  esse  testis  in  propria  causa" ;  and 
this  too,  when  the  departure  from  a  general  rule,  is  not  demanded  by 
the  necessity  of  the  case.  If  a  party  has  a  good  cause  of  action,  he 
may  call  upon  his  adversary  for  a  discovery,  if  he  has  no  other  means 
of  establishing  it;  but  he  cannot  entitle  himself  to  a  judgment,  by  the 
proof  of  his  own  admissions,  made  either  orally  or  in  writing.  That 
such  would  have  been  the  effect  of  the  admission  of  the  evidence  that 
was  rejected,  it  requires  no  reasoning  to  show. 

We  are  aware,  that  in  most  of  the  States,  the  party's  books  of  origi- 
nal entries  may  be  adduced  as  evidence ;  but  this  right  is  given  by  stat- 
utes which  determine  their  influence,  and  prescribe  what  suppletory 
proof  is  necessary.  2  Phil.  Ev.  C.  &  H.'s  notes,  682.  No  such  statute 
being  in  force  here,  it  follows  from  what  we  have  said,  that  the  judg- 
ment of  the  Circuit  Court  must  be  affirmed.*' 


BOYER  V.  SWEET. 

(Supreme  Court  of  Illinois,  1841.     3  Scam.  120.) 

BreesE,  Justice,  delivered  the  opinion  of  the  court: 
It  appears  by  the  record  in  this  case,  that  the  plaintiff  in  error 
brought  an  action  of  assumpsit,  in  the  Cook  Circuit  Court,  against 
the  defendant  in  error,  for  work  and  labor  done,  and  for  goods, 
wares,  and  merchandise,  sold  and  delivered  by  him  to  the  defendant, 
at  his  special  instance  and  request  accompanying  his  declaration  with  a 
bill  of  particulars,  consisting  of  lime  and  stone,  sold  and  delivered 
in  May,  June,  July,  August,  and  November,  1835. 

The  general  issue  was  pleaded,  with  notice  of  set  off.  On  the 
trial,  as  appears  from  the  bill  of  exceptions  taken  in  the  cause,  the 
plaintiff  proved  the  delivery  of  stone  and  lime  to  the  defendant,  at 
dift"erent    times    in   1835,    and   then   produced   in   court    an   account 

<»  And  so  in  Hissrick  v.  McPherson.  20  Mo.  310  (IS.".")),  where  It  wa?  sought 
*o  use  a  similar  book  suiiported  by  the  plaiutill's  oath  that  the  account  was; 
correct. 


588  HEARSAY  (Ch.  3 

book  containing  charges  for  those  articles,  against  the  defendant 
made  in  tliat  year,  and  proposed  to  ask  a  witness  the  following  ques- 
tions : 

First.  Did  the  plaintiff  keep  a  clerk  in  1835? 

Second.  Is  the  book  now  in  court,  the  plaintiff's  book  of  accounts, 
and  are  the  entries  therein,  in  his  handwriting? 

Third.  Is  his  book  fair  and  correct,  and  have  you  settled  with  him 
on  that  book,  and  found  it  correct  ? 

Fourth.  Were  any  part  of  the  stone  and  lime  in  said  book  deliv- 
ered? 

To  the  evidence  sought  to  be  produced  by  these  questions,  the  de- 
fendant objected,  and  the  objection  was  sustained  by  the  court  and 
an  exception  taken.  A  verdict  and  judgment  were  rendered  for  the 
defendant,  and  the  cause  brought  here  by  a  writ  of  error.  The  prin- 
cipal error  assigned  is,  in  this  rejection  of  the  evidence  oft'ered  by  the 
plaintiff.  No  objection  is  made  to  tlie  form  of  the  questions,  or  any 
other  point  contested,  except  this.  What  is  the  rule  of  evidence  in 
cases  of  running  accounts,  composed  of  many  items,  where  no  clerk 
is  employed,  and  where  the  delivery  of  all  the  articles  charged  cannot 
be  positively  proved? 

On  the  argument  here  by  the  counsel  for  the  defendant  in  error 
it  is  insisted,  that  inasmuch  as  we  have  adopted  the  common  law  of 
England,  we  have  adopted,  likewise,  all  its  rules ;  and  that  resort 
must  be  had  to  the  decisions  of  the  British  courts  to  ascertain  what 
is  the  rule  in  any  given  case,  wherein  the  legislature  has  not  pro- 
vided one.  It  is  true,  we  have,  Hke  most  other  States  in  the  Union, 
adopted  the  common  law,  by  legislative  act;  but  it  must  be  under- 
stood only  in  cases  where  that  law  is  applicable  to  the  habits  and 
condition  of  our  society,  and  in  harmony  with  the  genius,  spirit,  and 
objects  of  our  institutions.  Penny  v.  Little,  3  Scam.  304;  Stuart 
V.  People,  3  Scam.  404;  Seeley  v.  Peters,  5  Oilman,  141,  and 
note. 

Generally,  too,  the  decisions  of  those  courts  furnish  strong  evidence 
of  what  the  common  law  is;  but  it  is  equally  true,  that  they  have 
made  many  innovations  upon  its  original  principles,  and  refining  upon 
the  adjudications  of  one  another,  many  of  them  have  become  very  much 
modified,  or  wholly  changed.  The  courts  of  the  several  States  have 
also  taken  advantage  of  its  pliant  nature,  in  which  consists  one  of 
its  greatest  excellencies,  and  adopted  it  to  the  evervarying  exigen- 
cies of  the  country,  and  to  the  everchanging  condition  of  society. 
This  results  from  necessity;  and  in  our  further  progressive  im- 
provement, other  and  more  extensive  modifications  will  be  effected. 
Some  rules  of  the  common  law  suited  to  a  highly  refined  and  lux- 
urious people,  where  every  description  of  business  is  reduced  to  a 
system,  and  a  minute  division  of  labor  exists,  may  be  very  ill  adapted 
to  a  community  differently  situated.     There  are  some  great  leading 


Sec.  2)  BECOGNIZED  EXCEPTIONS  589 

principles,  some  fundamental  rules  which  are  never  departed  from, 
being  founded  in  the  common  reason  of  every  man,  and  which  no 
change  of  his  condition  can  alter.  In  regard  to  evidence,  one  of  them 
is,  that  the  best  of  which  the  nature  of  the  case  is  susceptible,  and 
in  the  power  of  the  party  to  produce  must,  in  all  cases,  be  produced. 
This  is  all  that  is  demanded  of  suitors  in  courts,  and  it  is  upon  this 
principle,  that  the  rule  in  England,  declaring  that  books  of  a  trades- 
man not  to  be  evidence,  unless  supported  by  the  oath  of  the  clerk 
who  made  the  entries,  or  by  proof  of  his  handwriting,  if  he  is  dead, 
is  based.  It  has  never  been  decided  there,  that  if  this  evidence  is 
not  in  the  power  of  the  party,  where  he  kept  no  clerk,  that  second- 
ary evidence  shall  not  be  resorted  to.  The  rule  would  be  the  same  here, 
i|  the  party  employed  a  clerk,  the  best  evidence  would  be  his  entries, 
or  proof  of  the  actual  delivery  to,  or  admission  by  the  party  charged, 
if  such  existed. 

In  the  case,  then,  of  open  accounts,  composed  of  many  items,  where 
the  entries  are  made  by  the  party  himself,  no  clerk  being  employed, 
where  some  of  the  articles  are  proved  to  have  been  deUvered  to  the 
party  charged,  and  no  admission  made  by  him,  and  no  receipt  taken 
from  him,  what  other  evidence  in  the  power  of  the  party  to  produce 
could  be  offered,  than  the  books  themselves,  fortified  by  the  testi- 
mony of  disinterested  persons,  that  they  have  settled  their  accounts 
by  them,  and  that  they  are  fairly  and  honestly  kept  ? 

From  the  nature  of  such  dealings,  no  other  evidence  could  be  ad- 
duced, and  we  see  no  danger  to  be  apprehended  in  admitting  it.  It  is 
safe  in  practice,  and  tends  to  promote  the  ends  of  justice. 

If  all  men  were  equally  honest,  such  accounts  would  be  admitted 
when  presented,  and  proof  of  such  admission  would  be  the  best  evi- 
dence. But  they  are  not  so ;  they  will  not  make  honest  admissions, 
when  charged,  and  no  recovery  could  be  had  against  them,  because  the 
party  trusting  him  did  not  employ  a  clerk  or  a  standing  witness  to 
testify  to  all  the  items. 

There  being  no  clerk,  no  witness  to  the  transactions,  and  no  ad- 
missions of  the  party  charged,  to  offer  to  the  jury,  the  next  best  evi- 
dence would  be  the  proof  of  circumstances  from  which  the  jury  might 
infer  the  fairness  and  honesty  of  the  whole  account.  These  circum- 
stances would  be  proof  of  the  delivery  of  some  of  the  articles  charged, 
at  or  about  the  time  the  entries  purport  to  have  been  made;  that  he 
kept  no  clerk  at  the  time;  that  the  book  produced  is  his  book  of  ac- 
counts; that  the  entries  are  in  his  handwriting,  and  that  they  are 
made  honestly  and  fairly,  and  this,  by  the  testimony  of  those  who 
have  dealt  with  him,  and  settled  by  that  book.  Such  facts  would  fur- 
nish strong  presumptive  evidence  of  fairness,  and  subject  to  be  re- 
butted by  proof  from  the  other  side  could  not  work  injustice,  or  mis- 
lead a  jury.  No  rule  of  law  is  violated  by  permitting  such  facts  to 
go  to  the  jury  for  their  consideration,  and  in  a  great  majority  of 
cases,  they  are  the  only  facts  that  can  be  offered. 


590  HEARSAY  -  (Ch.  3 

This  rule  would  not  apply  to  an  account  for  money  lent,  as  that 
is  not  usually  the  subject  matter  of  account,  notes  being  generally 
taken,  nor  to  an  account  containing  a  single  charge  only,  as  that  would 
show  no  regular  dealings  between  the  parties. 

In  many  of  the  States,  books  of  accounts  are  admitted  in  evidence, 
after  being  fortified  by  the  oath  of  the  party.  In  other  States,  the 
books,  with  the  suppletory  evidence  proposed  to  be  given  in  the  case 
under  consideration,  are  admitted,  as  circumstances  from  which  the 
jury  may  or  may  not,  in  their  discretion,  infer  that  the  whole  of  the 
articles  charged  were  in  fact  delivered.  We  think,  then,  that  the 
circuit  court  in  rejecting  the  evidence  offered,  erred,  and  accord- 
ingly reverse  the  judgment  with  costs,  and  remand  the  cause  with 
instructions  to  award  a  venire  de  novo,  and  to  admit  the  testimony 
offered  by  the  plaintiff. 

Judgment  reversed."** 


MONTAGUE  v.  DOUGAN. 

(Supreme  Court  of  Michigan,  1SS8.    6S  Mich.  98,  35  N.  W.  840.) 

Sherwood,  J."^  This  case  is  an  action  of  assumpsit,  originally 
brought  before  a  justice  of  the  peace  in  the  city  of  Niles.  The  plain- 
tiff declared  under  the  common  counts,  adding  tliereto  a  bill  of  partic- 
ulars of  his  demand.  The  defendant  pleaded  the  general  issue,  with 
notice  of  set-off,  and  of  money  tendered  and  deposited  with  the  court, 
the  amount  tendered  being  $16.32  ;  costs  $1.75.  The  plaintiff  recovered 
judgment  before  the  justice  for  $93.75,  and  on  appeal  by  the  defendant 
to  the  circuit  court  for  the  county  of  Berrien,  the  plaintiff  recovered 
$101.78.     *     *     * 

Some  stress  is  laid  upon  the  fact  that  the  plaintiff's  books  were  al- 
lowed to  be  put  in  evidence,  without  proof  by  other  persons  that  they 
had  settled  accounts  with  the  plaintiff  upon  the  books,  and  that  he  kept 
correct  books.  Such  proof  is  unnecessary,  since  the  statute  allows 
parties  to  testify,  generally,  in  the  case.     They  can  testify  as  well  to 

50  See  same  rule  approved  in  Vosburgh  v.  Thayer,  12  Jolins.  (N.  Y.)  4G1 
(1815) ;    Jackson  v.  Evans,  8  Mich.  476  (18G0). 

For  later  legislation  introducing  the  supplementary  oath  in  Illinois,  see 
Hurd's  Rev.  St.  1917,  c.  51,  §  3:  "Where  in  any  civil  action,  suit  or  proceed- 
ing, the  claim  or  defense  is  founded  on  a  book  account,  any  party  vv  inter- 
ested person  may  testify  to  his  account  book,  and  the  items  therein  contained ; 
that  the  same  is  a  book  of  original  entries,  and  that  the  entries  therein  were 
made  by  himself,  and  are  true  and  just ;  or  that  the  same  were  made  by  a 
deceased  person,  or  by  a  disinterested  person,  a  nonresident  of  tiie  state  at 
the  time  of  the  trial,  and  were  made  by  such  deceased  or  non-rosident  person 
In  the  usual  course  of  trade,  and  of  his  duty  or  employment  to  the  party  t»> 
testifying;  and  thereupon  the  said  account  book  and  entries  shall  I)e  admit- 
ted as  evid<ne(!  in  flie  cause." 

For  similar  legislntion  in  .Missouri,  see  Rev.  St.  Mo.  lOUO,  §  G354. 

»i  I'art  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  591 

the  keeping  of  their  accounts,  and  the  correctness  of  their  books,  as 
to  any  other  facts.    Brown  v.  Weightman,  62  Mich.  557,  29  N.  W.  98. 

The  question  of  the  agency  of  a  Mr.  Brown,  who  purchased,  and 
gave  directions  for  the  charging  of,  a  large  number  of  articles,  was 
strongly  challenged  upon  the  trial ;  but,  so  long  as  there  were  facts 
upon  the  subject  of  ratification  of  his  agency  to  be  found  by  the  court, 
it  is  of  little  account  what  was  the  extent  of  his  original  authority. 
Webster  v.  Wray,  17  Neb.  579,  24  N.  W.  207,  208.  The  plaintiff's 
books  were  offered  to  show  to  whom  goods  were  charged,  and  to  whom 
the  credit  was  given ;  for  this  purpose,  under  the  facts  stated  in  the 
record,  the  proof  was  properly  received.  Winslow  v.  Lumber  Co., 
Z2  Minn.  237,  20  N.  W.  145 ;  Larson  v.  Jensen,  53  Mich.  427,  19  N. 
W.  130. 

The  record  fails  to  disclose  any  error  prejudicial  to  the  defendant, 
and  the  judginent  at  the  circuit  must  be  affirmed.''^ 


SMITH  V.  SMITH. 

(Court  of  Appeals  of  New  York,  1900.     163  N.  Y.  1G8,  57  N.  E.  300,  52  L.  R. 

A.  545.) 

Gray,  J.  The  plaintiff  sought  to  recover  a  balance  due  for  coal 
sold  and  delivered  by  him  to  tlie  defendant.  He  recovered  judgment 
upon  a  trial  before  a  referee,  and  tliat  judgment  has  been  unanimous- 
ly affirmed  by  the  appellate  division.  Upon  his  appeal  to  this  court  the 
defendant  assigns  as  error  a  ruling  of  the  referee  under  which  the 
plaintiff's  books  of  account  were  admitted  in  evidence.  Upon  the  trial 
the  plaintiff  testified  to  having  had  business  transactions  with  the  de- 
fendant, in  the  sale  of  coal  to  him,  for  some  time  past ;  that  his  books 
of  account  contained  a  correct  statement  of  the  coal  sold  and  delivered 
within  the  dates  in  question,  and  that  he  personally  delivered  nearly  all 
the  coal  covered  by  the  account.  He  testified  that  his  wife  kept  his 
books,  and  made  tlie  entries  therein  from  memoranda  furnished  by  him 
as  made  after  the  delivery  of  the  coal.  She  also  testified  to  making  the 
entries  in  that  manner,  and  that  they  were  correctly  made.  There  was 
evidence  on  his  part,  also,  to  the  effect  that  a  copy  of  the  account  in 
the  books  had  been  acknowledged  by  the  defendant,  with  an  offer  to 
settle  upon  some  rectification  being  made.    A  witness  for  the  plaintiff' 

5  2  Black,  J.,  in  Anchor  Milling  Co.  v.  Walsh,  108  Mo.  277,  IS  S.  W.  904,  32 
Am.  St.  Rep.  600  (1S91):  "Since  a  party  may  testify  in  his  own  favor,  it 
must  be  conceded  that  he,  as  well  as  his  clerk  or  bookkeeper,  may  refresh 
his  memory  from  entries  made  by  him  or  under  his  eye,  and  then  testify  as 
to  the  fact  with  his  memory  thus  refreshed.  Now,  in  cases  of  an  account 
composed  of  many  items,  all  tliis  moans  nothing  more  than  reading  the  book 
in  evidence.  This  we  all  know  from  daily  experience  in  the  trial  courts.  It 
is  out  of  all  reason  to  say  that  a  merchant  or  his  clerks  ean  recall  each  item 
of  the  account,  and  a  fair-minded  witness  will  generally  decline  the  attempt." 


592  HEARSAY  (Ch.  3 

testified  that  he  had  settled  with  him  by  his  books  for  eight  or  ten 
years,  and  had  ahvays  found  the  books  correct.  Being  cross-examined 
as  to  that  he  said :  "I  knew  the  accounts  were  correct  simply  because 
I  had  confidence  in  him,  and  paid  what  he  asked.  That  is  all  the  reason 
I  had  for  saying  tliey  were  correct, — because  I  had  confidence  in  him. 
*  *  *  I  relied  on  his  honesty,  and  not  on  my  recollection  as  to  the 
amount  of  coal  I  ordered."  Another  witness  testified  for  the  plaintiff 
that  he  was  a  bookkeeper  for  a  firm  that  purchased  coal  from  the 
plaintiff  on  credit,  and  that  he  had  "settled  with  him  according  to  his 
books  and  according  to  our  own  four  or  five  times,"  and  "always  found 
them  to  be  correct."  Upon  this  evidence  the  books  of  account  were 
offered  by  the  plaintiff,  and  the  objection  to  their  admission  was  placed 
"on  the  ground  that  they  are  incompetent,  a  proper  foundation  not  hav- 
ing been  laid  for  their  being  admitted  as  evidence."  The  objection  was 
overruled,  and  the  defendant  excepted. 

The  question  is  thus  presented  whether,  in  the  evidence  which  pre- 
ceded, a  foundation  had  been  laid  for  the  admission  of  the  books  ac- 
cording to  the  requirements  of  a  rule  of  evidence,  which  should  be  re- 
garded as  established  since  its  formulation  in  the  case  of  Vosburgh  v. 
Thayer,  12  Johns.  461.  It  was  held  in  that  case  that  books  of  account 
oueht  not  to  be  admitted  in  evidence  "unless  a  foundation  is  first  laid 
for  their  admission  by  proving  that  the  party  had  no  clerk,  that  some 
of  the  articles  charged  have  been  delivered,  that  the  books  produced  are 
the  account  books  of  the  party,  and  that  he  keeps  fair  and  honest  ac- 
counts ;  and  this  by  those  who  have  dealt  and  settled  with  him."  The 
rule,  as  thus  laid  down,  has  been  since  accepted  as  correct.  McGoldrick 
V.  Traphagen,  88  N.  Y.  334;  Tomlinson  v.  Borst,  30  Barb.  42;  Dooley 
v.  Moan,  57  Hun,  535,  11  N.  Y.  Supp.  239.  Under  these  restrictions 
account  books  become  evidence  for  the  consideration  of  the  tribunal 
with  which  the  determination  of  the  issues  rests.  As  evidence  which 
is  manufactured  by  the  party,  they  should  be  received  with  caution ; 
but  that  is  an  objection  which  goes  to  the  weight  of  the  evidence,  and 
not  to  its  admissibility,  which  is  to  be  determined  solely  with  reference 
to  the  foundation  which  has  been  laid  for  it.  Their  admission  in  evi- 
dence is,  of  course,  not  authoritative  as  to  their  contents ;  for  the  con- 
clusion as  to  their  credit  will  depend  upon  their  appearance,  the  manner 
of  their  keeping,  and  the  character  of  him  who  offers  them.  Although 
the  rule  under  discussion  was  established  at  a  time  when  parties  to  an 
action  were  not  allowed  to  be  witnesses,  the  subsequent  legislation, 
which  removed  that  disqualification,  and  authorized  parties  to  testify 
in  their  own  behalf,  has  not  deprived  them  of  the  right  to  introduce 
their  books  of  account  in  evidence.  Tomlinson  v.  Borst,  supra ;  Stroud 
V.  Tilton,  *42  N.  Y.  139.  The  rule  may  still  be  an  important  one  in 
the  administration  of  justice  in  cases  where  the  party  kept  no  clerk 
able  to  testify  to  the  truth  of  the  entries  in  his  books,  and  where,  unless 
they  are  admitted,  great  inconvenience  and  a  denial  of  justice  may 
follow. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  593 

The  conditions  precedent  to  the  admissibility  of  the  plaintiff's  books 
of  account  were  sufficiently  complied  with  within  the  requirements  of 
the  rule  in  Vosburgh's  Case.  The  plaintiff  had  sworn  that  he  had  per- 
sonally delivered  nearly  all  the  coal  charged,  and  that  the  books  which 
were  produced  contained  his  accounts.  That  he  had  no-  clerk  was 
manifest  from  his  testimony.  In  fact,  the  appellant  does  not  claim 
that  the  plaintiff  did  have  a  clerk,  and,  of  course,  the  plaintiff's  wife 
cannot  be  claimed  to  be  a  clerk,  within  the  meaning  of  the  rule.  The 
clerk  so  intended  means  one  who  had  something  to  do  with,  and  had 
knowledge  generally  of,  the  business  of  his  employer,  and  who  would 
be  enabled  to  testify  upon  the  subject  of  the  goods  sold.  McGoldrick 
V.  Traphagen,  supra.  The  plaintiff  had  affirmatively  shown,  not  only 
that  his  wife  kept  his  books  for  him,  but  that  it  was  he  who  either  de- 
livered the  coal  or  superintended  its  delivery.  The  evidence  was  suffi- 
cient to  negative  the  idea  that  he  kept  a  clerk  who  could  testify,  by 
reason  of  his  employment,  to  the  correctness  of  the  account  of  goods 
sold  and  delivered.  The  remaining  requirement  that  proof  should  be 
made  that  the  plaintiff  kept  fair  and  honest  books  by  those  who  had 
dealt  with  him,  and  who  had  settled  with  him  on  the  books,  was  suffi- 
ciently met  in  the  evidence  of  the  two  witnesses,  which  has  been  men- 
tioned. The  evidence  went  to  establish  not  only  the  character  of  the 
plaintiff  for  honesty,  but  that  in  a  course  of  business  extending  over 
several  years  the  witnesses  had  always  found  his  books  to  be  correct. 
In  the  one  case  the  witness  paid  his  bills  relying  upon  the  plaintiff's 
honesty,  and  not  upon  his  recollection  as  to  the  amount  of  coal  or- 
dered ;  in  the  other  case  the  witness  had  settled  the  plaintiff's  bill 
against  his  employers  according  to  his  books  and  according  to  their  own 
books,  and  had  always  found  the  plaintiff's  books  to  be  correct.  Such 
evidence  should  be  and  is  quite  sufficient  to  discharge  the  burden  rest- 
ing upon  the  plaintiff  with  respect  to  that  item  of  proof  required  by  the 
rule.     The  judgment  should  be  affirmed,  with  costs. ^^ 

PARKE'S,  C.  J.,  and  O'Brien,  Haight,  Landon,  and  Werner,  JJ., 
concur.     CuLLEN,  J.,  not  sitting. 

Judgment  affirmed. 


WILCOX  V.  DOWNING  et  al. 
(Supreme  Court  of  Errors  -of  Connecticut,  1914.     88  Conn.  .368.  91  Atl.  262.) 

RoR aback,  J.^*  *  *  *  The  rejection  of  Calvin  Wilcox's  mem- 
orandum book  was  not  erroneous.  In  support  of  her  claim  that  Calvin 
Wilcox,  the  plaintift''s  assignor,  had  sold  and  delivered  the  articles  of 

6  8  See  same  rule  applied  in  House  v.  Beak,  141  111.  290,  30  N.  E.  10G5,  33 
Am.  St.  Rep.  307  (1892),  where  the  entries  had  been  made  by  a  member  of 
the  firm  from  memoranda  furnished  by  various  employes. 

6*  Statement  and  part  of  opinion  omitted. 

FiNT.Ev.— 38 


594  HEARSAY  (Ch.  3 

merchandise  to  the  defendants  as  alleged  in  the  second  count  of  the 
plaintiff's  complaint,  Mr.  Wilcox  produced  a  book  containing  mem- 
oranda relating  to  the  sale  and  delivery  of  these  articles  which  the 
defendants  claimed  were  never  sold  to  them. 

Calvin  \\'ilcox  was  called  as  a  witness,  and  testified  that  it  was  an 
account  book  of  his  own ;  that  all  the  daily  transactions  were  entered 
in  this  book ;   and  that  this  was  the  only  account  book  kept  by  him. 

Upon  this  question  the  trial  court  found  that  the  book  in  question 
was  a  memorandum  book  about  ten  inches  long,  eight  inches  wide  and 
three-eighths  of  an  inch  thick,  from  which  many  pages  had  been 
torn.  It  \.ontained  memoranda  of  some  accounts  and  other  matters, 
but  not  in  regular  chronological  order.  The  book  itself  did  not  indicate 
that  it  was  a  book  in  which  were  regularly  kept  accounts  of  the  wit- 
ness or  that  it  was  kept  in  the  regular  course  of  his  business. 

It  is  for  the  presiding  judge  to  say,  in  the  first  instance,  whether  en- 
tries in  an  account  book  are  of  such  a  character  as  to  render  it  ad- 
missible, and  his  decision  will  not  be  interfered  with,  unless  clearly 
wrong.    Riley  v.  Boehm,  167  Mass.  183,  187,  45  N.  E.  84. 

As  a  general  rule,  when  a  book  of  accounts  shows  that  it  is  not 
properly  kept  within  the  requirements  of  the  rule,  it  is  within  the  pow- 
er of  the  court  to  reject  it.  Pratt  v.  White,  132  Mass.  477,  478.  To  a 
certain  extent  the  basis  of  a  ruling  of  the  trial  judge  as  to  the  admis- 
sion of  an  account  book  may  consist  of  facts  gained  by  his  personal 
examination.    Riley  v.  Boehm,  167  Mass.  183,  186,  187,  45  N.  E.  84. 

The  trial  court  may  exclude  an  account  book  where  either  its  condi- 
tion or  appearance  or  the  evidence  reasonably  creates  a  suspicion  that 
it  is  not  a  true  record  of  what  it  purports  to  be.  It  must  appear  to 
have  been  honestly  kept,  and  not  intentionally  erased  or  altered,  and 
to  have  been  an  account  of  the  daily  business  of  the  party,  and  made 
for  the  purpose  of  establishing  a  charge  against  another.  Pratt  v. 
White,  132  Mass.  478;  McNulty's  Appeal,  135  Pa.  210,  19  Atl.  936. 

Mutilation  of  a  portion  of  a  book,  material  to  the  inquiry,  may 
prevent  its  admissibility,  unless  satisfactorily  explained.  Crane  v. 
Brewer,  73  N.  J.  Eq.  558,  68  Atl.  78;  Chamberlayne  on  Evidence,  vol. 
4,  §§  3051  to  3149,  inclusive. 

We  cannot  say  that  the  court  below  was  not  justified  in  the  rejec- 
tion of  the  book.     ♦     *     ♦ 

Affirmed. 


JUNIATA  BANK  OF  PENNSYLVANIA  v.  BROWN. 
(Supreme  Court  of  Pennsylvania,  1819.     5  Sorg.  &  K.  220.) 

Assumpsit  on  a  promissory  note  made  by  the  defendant,  payable  to 
Joseph  Martin,  and  enrlorsed  by  him  and  by  Joseph  McCoy.  In  order 
to  prove  that  Joseph  Martin  was  a  member  of  the  firm  of  P"'rancis 


Sec.  2)  RECOGNIZED  EXCEPTIONS  595 

McCoy  &  Co.,  plaintifT  introduced  the  deposition  of  John  Cook,  a 
member  of  the  late  firm  of  Cook  &  Cresson,  who  stated  his  beHef 
that  such  was  the  fact  from  an  entry  in  the  day  book  of  that  firm, 
headed  "Francis  McCoy  and  Joseph  Martin,  trading  under  the  firm 
of  Francis  McCoy  &  Co." 

TiLGHMAN,  C.  J.  By  ancient  custom  in  Pennsylvania,  the  books  of 
original  entry  of  a  merchant,  or  shopkeeper,  are  received  as  evidence 
of  the  sale  and  delivery  of  goods.  This  rule  was  founded  on  con- 
venience. In  early  times,  many  traders  could  not  afford  to  keep 
clerks ;  they  were  forced  to  give  credit  on  sales  of  their  goods,  and 
it  was  supposed  there  would  be  no  great  danger  in  permitting  their 
own  entries  to  be  prima  facie  evidence,  provided  they  were  made 
at  the  time  the  sales  took  place.  But  they  never  were  admitted 
as  evidence,  of  the  payment  of  money :  there  was  no  necessity  for 
this,  as  it  is  the  business  of  a  man  who  pays  money,  to  take  a  receipt 
for  it.  Neither  could  there  be  the  least  reason  for  their  being  admitted 
as  evidence  of  a  collateral  matter  in  which  a  third  person  was  con- 
cerned, as  for  instance,  in  a  case  like  the  present,  where  the  books  of 
Cook  &  Cresson  are  offered,  not  to  prove  a  sale  and  delivery  of  goods 
by  them  to  F.  McCoy  &  Co.,  but  to  prove,  merely  for  the  benefit  of 
William  Brown  jun.,  that  Joseph  Martin  was  a  partner  of  F.  Mc- 
Coy. Besides,  if  the  book  was  evidence,  it  should  have  been  produced ; 
an  extract  could  not  be  evidence.  But  the  defendant's  counsel  say, 
that  although  neither  the  book  nor  the  extract  in  themselves  might 
be  evidence,  yet  the  deponent  might  refresh  his  memory,  by  the  use 
of  this  extract.  Certainly  he  might  have  refreshed  his  memory,  and 
then  swear  with  a  memory  refreshed ;  but  he  had  no  right  .to  intro- 
duce into  his  deposition,  the  matter  which  he  had  made  use  of  to 
refresh  his  memory.  A  witness  examined  at  the  bar,  may  look  at  his 
notes  for  the  purpose  of  refreshing  his  memory,  and  then,  if  he 
can  with  a  safe  conscience,  he  may  swear  from  his  own  recollection; 
but  he  would  not  be  permitted  to  read  his  notes  to  the  jury.  Now, 
in  the  present  instance,  it  is  endeavoured,  in  a  side  way,  to  get  be- 
fore the  jury,  a  writing,  which  in  itself  was  not  evidence.  But  this 
must  not  be  permitted,  because  it  might  have  an  influence  on  the 
jury.  If  Mr.  Cook,  after  examining  his  books,  could  have  taken  on 
himself  to  swear,  that  Joseph  Martin,  was  a  partner  of  Francis  Mc- 
Coy, it  would  have  been  all  very  well.  But  if  not,  that  fact  must  not 
be  made  out  from  the  books.  I  am  of  opinion  therefore,  that  the  evi- 
dence ought  not  to  have  been  admitted.     *     *     * 

Judgment  reversed. 

6  5  statement  condensed  and  parts  of  the  opinion  on  other  Dointf?  omitted. 


596  HEARSAY  (Ch.  3 

DODGE  V.  J^IORSE. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1825.     3  N,  H.  232.) 

Assumpsit  for  goods  sold  and  delivered  to  the  defendant  by  plain- 
tiff's intestate. 

The  cause  was  tried  here,  at  November  term,  1824.  The  plaintiff, 
among  other  evidence,  produced  a  book  of  accounts,  and,  being  sworn 
to  make  true  answers,  stated,  that  the  book  came  to  him  as  administra- 
tor, and  that  the  charges  in  it  against  the  defendant,  which  were  the 
same  as  the  charges  mentioned  in  the  declaration,  were  in  the  hand- 
writing of  Isaac  Dodge,  his  intestate.  Whereupon,  the  book  was  per- 
mitted to  go  to  the  jury,  as  evidence  in  the  cause.''® 

By  the  Court.  *  *  *  It  is  further  objected,  that  the  book  of 
the  deceased,  supported  only  by  the  supplementary  oath  of  his  admin- 
istrator, was  improperly  permitted  to  go  to  the  jury.  It  has  lately  been 
decided  in  this  court,  that  the  book  of  a  party,  supported  by  his  oath, 
that  it  is  his  book  of  original  entries,  and  that  the  charges  are  in  his 
own  handwriting,  may  go  to  a  jury  as  evidence.  Eastman  v.  Moulton, 
3  N.  H.  156. 

And  it  is  believed,  it  will  be  difficult  to  shew  a  good  reason,  why  the 
book  of  the  intestate,  supported  by  the  supplementary  oath  of  his  ad- 
ministrator, should  not  be  considered  as  good  evidence,  as  if  support- 
ed by  the  oath  of  Isaac  Dodge  himself.  And  we  are  of  opinion,  that 
this  objection  must  be  overruled. 

Judgment  on  the  verdict.''^ 


THE  QUEEN  V.  INHABITANTS  OF  WORTH. 

(Court  of  Queen's  Bench,  1843.     4  Q.  B.  132.) 

On  appeal  against  an  order  of  justices  removing  William  Worsell 
and  his  wife  and  children  from  the  parish  of  Worth  in  Sussex  to  the 
parish  of  Home  in  Surrey,  the  sessions  quashed  tlie  order  subject  to 
the  opinion  of  this  court  upon  the  following  case. 

The  respondents  had  removed  the  pauper  and  his  family  upon  a 
settlement  obtained  in  the  appellant  parish  by  hiring  and  service  for  a 
year  with  one  Thomas  Booker  in  1821.  The  appellants  admitted  the 
settlement  upon  the  hearing  of  the  appeal,  and  relied  upon  a  subse- 
quent settlement,  alleged  in  the  grounds  of  appeal  to  have  been  gained 
in  the  respondent  parish  by  hiring  and  service  for  a  year  with  one 
Thomas  Stone  in  or  about  1824.  For  the  purpose  of  estabHshing  this 
settlement  the  appellants  called  the  pauper  and  his  father,  who  both 

6  0  statement  condensed  and  part  of  opinion  omitted. 

37  See,  also,  Prince,  Adin'r,  v.  Smith,  4  Mass.  455  (ISOS),  recognizing  the 
same  practice  for  liooks  of  deceased  tradesmen,  hut  rojectiipj;  tlie  iiarticular 
account,  becau.se  it  appeared  to  be  a  copy,  instead  of  the  originai  entries. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  597 

deposed  to  the  contract  of  service  having  been  for  a  year,  though  nei- 
ther could  recollect  at  what  wages.  The  pauper  further  stated  in  evi- 
dence that  he  worked  for  Mr.  Stone  under  the  contract  for  six  months 
at  Gibsaven  Farm  in  the  parish  of  Worth ;  that  he  then  went  away  at 
his  master's  request  for  about  three  weeks,  during  which  time  he 
worked  for  his  father  he  received  remuneration  from  him,  his  boxes 
and  clothes  remaining  all  the  time  at  Mr.  Stone's ;  that  he  afterwards 
returned  and  completed  his  year's  service  with  Mr.  Stone;  and  that 
he  received  his  whole  year's  wages  in  one  sum  from  Mr.  Stone  at  the 
end  of  the  year.  For  the  purpose  of  rebutting  this  evidence,  and  show- 
ing that  no  such  contract  of  hiring  and  service  for  a  year  in  fact  took 
place,  the  respondents  called  Mrs.  Amelia  Creasy,  daughter  of  Mr. 
Stone,  who  proved  that  her  father  died  in  1827;  that  he  carried  on  the 
business  of  a  farmer  at  the  farm  in  question  for  upwards  of  twenty 
years ;  that  in  the  course  of  his  business  he  was  in  the  habit  of  hiring 
farm  servants ;  and  that  his  practice  was,  when  he  did  so,  to  make  an 
entry  of  the  time  and  terms  of  such  hiring  in  a  memorandum  book  kept 
by  him  for  that  purpose,  which  memorandum  book  was  returned  with 
the  present  case.  This  book,  which  had  been  in  the  custody  of  Mrs. 
A.  Creasy  from  the  time  of  her  father's  decease,  was  then  produced 
and  tendered  in  evidence  by  the  respondents,  but  objected  to  on  the 
part  of  the  appellants.  It  contained,  amongst  numerous  minutes  of  the 
time  and  terms  of  hiring  of  farm  servants,  many  such  being  for  the 
year,  and  of  payments  made  to  them  in  respect  of  their  services,  the 
following  entries  with  reference  to  the  hiring  and  service  of  the  pauper, 
proved  to  be  in  the  hand-writing  of  Mr.  Stone ;  but  the  witness  was 
not  present  when  the  entries  were  made. 

"April  4th,  1824.  W.  Worsell  came;  and  to  have  for  the  half  year 
40^. 

"September  29th.     Paid  this  il. 

"October  27th.  Ditto  came  again ;  and  to  have  \s.  per  week ;  to 
March  25th,  1825,  is  21  weeks  two  days :    i\  \s.  6d.  25th.    Paid  this." 

The  sessions  rejected  this  evidence,  and  quashed  the  order  of  remov- 
al, subject  to  the  opinion  of  the  court  upon  the  question,  whether  the 
memorandum  book  containing  the  above  entries  was  admissible  for 
the  respondents  or  not. 

Lord  Denman,  C.  J.^®  I  have  always  a  great  disposition  to  admit 
any  evidence  that  can  reasonably  be  tendered :  but  there  must  be  some 
limits.  In  a  case  of  this  kind  the  entry  must  be  against  the  interest 
of  the  party  who  writes  it,  or  made  in  the  discharge  of  some  duty  for 
which  he  is  responsible.  The  book  here  does  not  show  any  entry  oper- 
ating against  the  interest  of  the  party.  The  memorandum  could  only 
fix  upon  him  a  liability  on  proof  that  the  services  referred  to  had  been 
performed :  and  whether,  on  dispute,  a  jury  would  have  found  him  lia- 
ble for  the  sum  entered,  or  more  or  less,  we  cannot  say.    Nor  was  this 

8  "Opinions  of  Patteson  and  Wiglitman,  J  J.,  are  omitted. 


598  HEARSAY  (Ch.  3 

an  entr}'  made  in  the  course  of  duty,  as  in  Doe  dem.  Patteshall  v.  Tur- 
ford,  3  B.  &  Ad.  890.  The  act  there  was  performed  by  a  principal  in 
the  firm,  and  not  by  a  clerk ;  but  it  was  done  by  a  person  acting  under 
the  same  responsibility;  therefore  no  distinction  favourable  to  the 
respondents  arises  from  that  part  of  the  case. 

Coleridge,  J.  This  was  not  an  entry  against  the  party's  interest, 
unless  the  mere  making  of  a  contract  be  so :  and,  if  that  were  the  case, 
the  existence  of  a  contract  would  be  against  the  interest  of  both  par- 
ties, to  it.  It  was  argued  that  we  might  inquire  whether  a  reasonable 
probability  appeared  that  tlie  entries  were  true,  and  that  for  this  pur- 
pose we  might  go  into  the  contents  of  the  book  beyond  the  particular 
entry.  But  the  question  is,  not  what  may  be  inferred  from  other  en- 
tries, but  whether  the  particular  entry,  at  the  time  when  it  was  made, 
imported  something  contrary  to  the  maker's  interest.  As  to  the  other 
point:  it  cannot  be  contended  that  Stone  made  these  entries  in  the 
course  of  any  duty.  In  Doe  dem.  Patteshall  v,  Turford,  3  B.  &  Ad. 
890,  the  person  who  did  the  act  relied  upon  was  a  partner  in  the  firm  of 
attorneys  :  but  both  attorneys  were  equally  the  agents  of  the  client ;  and 
it  was  the  duty  of  each  to  serve  the  notices  by  himself  or  by  his  clerk. 
It  was  usually  done  by  a  clerk :  but  on  the  particular  occasion  the  attor- 
ney himself  did  it;  and,  while  so  doing,  he  was  actually  in  the  dis- 
charge of  a  duty  to  another  person.    This  is  an  entirely  different  case. 

Order  confirmed.-''* 


LASSONE  V.  BOSTON  &  L.  R.  R. 

(Supreme  Court  of  New   HampsMre,   1S90.     66  N.   H.   345,   24  Atl.  902,   17 

L.  R.  A.  525.) 

Case,  for  injuries  to  the  plaintiff  from  the  negligent  management  of 
the  defendant's  locomotive  on  a  highway  grade  crossing. 

June  8,  1887,  the  plaintiff,  with  one  Benton,  while  passing  over  the 
defendant's  crossing  in  the  village  of  Lancaster  in  a  wagon  drawn  by 
a  horse,  was  thrown  out  and  injured.  One  of  the  rear  wheels  of  the 
wagon  was  broken,  and  it  was  a  question  whether  it  was  done  by  col- 
lision with  the  defendant's  locomotive,  or  by  the  plaintiff's  cramping 
the  wagon  and  throwing  himself  and  Benton  out  after  passing  over  the 
crossing.  On  this  question  the  character  and  extent  of  the  injury 
jto  the  wheel  became  material.  One  Woodward,  who  repaired  the 
woodwork  of  the  wheel,  died  before  the  trial.  The  plaintiff  called 
his  administrator,  who  testified  that  he  had  Woodward's  account  book, 

6»  For  the  use  of  a  book  entry  of  a  deceased  person  wlioii  against  interest, 
see  Iligliam  v.  Ridgwiiy,  10  East,  109  (ISOS) ;  Doe  v.  Robson,  15,  East,  32 
(1812). 

Compare  NichoUs  v.  Webb,  8  Wlioat.  326,  5  E.  Ed.  628  (1820). 

In  Whitnash  v.  (Jeorpe,  8  B.  &  C.  556  (1828),  an  action  on  a  bond  against 
a  surety  for  the  default  of  a  deceased  employ6,  boolc  entries  by  the  latter 
were  admitted  and  one  of  the  reasons  given  was  that  by  the  terms  of  the 
bond  it  was  the  duty  of  the  deceased  to  keep  tlie  books.  It  seems  probable 
tiiat  in  this  way  the  duty  element  became  overemphasized. — Ed. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  599 

kept  by  Woodward  in  his  lifetime,  on  which  he  found  the  following 
charge  to  Benton,  (the  owner  of  the  wagon,)  which  tlie  plaintiff  elect- 
ed to  have  read  to  the  jury,  subject  to  the  defendant's  exception: 
"June  8,  1887.  To  sixteen  spokes,  twenty  cents  apiece,  $3.20."  Be- 
fore calling  the  administrator,  the  plaintiff  introduced  evidence  tend- 
ing to  show  that  several  spokes  were  broken,  the  tire  badly  crippled, 
and  the  axletree  sprung,  and  that  the  injury  appeared  to  have  been 
caused  by  a  blow.®" 

Smith,  J.  The  book  of  account  of  Woodward,  supported  by  the 
suppletory  oath  of  his  administrator,  would  be  competent  evidence 
against  Benton,  in  a  suit  by  the  administrator  against  him  to  recover 
for  the  repairs  of  the  wheel.  .  Dodge  v.  Morse,  3  N.  H.  232.  Is  the 
book  evidence  against  third  parties?  Account  books  of  a  party  are 
not  evidence  where  the  dealing  between  the  debtor  and  creditor  is,  as 
to  the  parties  to  the  suit,  a  mere  collateral  matter.  Woodes  v.  Den- 
nett, 12  N.  H.  510;  Little  v.  Wyatt,  14  N.  H.  23;  Batchelder  v.  San- 
born, 22  N.  H.  325;  Leighton  v.  Sargent,  31  N.  H.  119,  64  Am. 
Dec.  323;  Woods  v.  Allen,  18  N.  H.  28;  Harris  v.  Burley,  10  N.  H. 
171;  Putnam  v.  Goodall,  31  N.  H.  419;  Brown  v.  George,  17  N.  H. 
128.  These  decisions  were  prior  to  the  act  of  1857  (Laws  1857,  c. 
1952,  Gen.  Laws,  c.  228,  §  13,)  enabling  parties  to  testify  as  witnesses 
in  chief.  But  account  books  are  still  admissible,  notwithstanding  the 
party  may  testify  as  a  witness  in  chief.  Swain  v.  Cheney,  41  N.  H. 
232;  Bailey  v.  Harvey,  60  N.  H.  152;  Sheehan  v.  Hennessey,  65  N. 
H.  101,  18  Atl.  652.  Written  entries  by  persons  deceased  may,  under 
some  circumstances,  be  shown  in  evidence  against  third  persons. 

There  is  a  class  of  cases  which  holds  that  where  a  person  has 
peculiar  means  of  knowing  a  fact,  and  makes  a  written  entry  of  the 
fact  against  his  interest  at  the  time,  it  is  evidence  of  the  fact  as 
against  third  persons  after  his  death,  if  he  could  have  been  examined 
as  to  it  in  his  lifetime.  Higham  v.  Ridgway,  10  East,  109,  is  a  leading 
case  of  this  character.  The  midwife's  book  of  account  was  received 
for  the  purpose  of  showing  the  date  of  the  birth  of  a  person,  which 
became  important  upon  the  question  whether  he  was  21  years  of  age 
when  he  suffered  a  recovery  to  bar  an  estate  tail.  The  entry  made  in 
the  daybook  under  date  of  April  22,  1768,  and  marked  "Paid"  in  the 
ledger  October  25,  1768,  was  held  admissible  upon  the  ground  that 
the  party  had  peculiar  means  of  knowing  the  fact,  and  that  the  entry 
was  against  his  interest  at  the  time  it  w^as  made.  "Here  it  appears 
distinctly  from  other  evidence,"  said  Lord  EUenborough,  "that  there 
was  the  work  done  for  which  the  charge  was  made,  *  *  *  _  and  the 
discharge  in  the  book,  in  his  own  handwriting,  repels  the  claim  which 
he  would  otherwise  have  had  against  the  father  from  the  rest  of  the 
evidence,  as  it  now  appears.  Therefore  the  entry  made  by  the  party 
was  to  his  own  immediate  prejudice,  when  he  had  not  only  no  inter- 
so  Statement  coudeused  and  part  of  opinion  omitted. 


600  HEARSAY  (Ch.  3 

est  to  make  it  if  it  were  not  true,  but  he  had  an  interest  the  other  way 
not  to  discharge  a  claim  which  it  appears  from  other  evidence  that  he 
had."     Warren  v.  Greenville,  2  Strange,  1129,  is  a  similar  case. 

To  fortify  the  presumption  that  a  surrender  of  a  portion  of  the 
estate  in  question  should  be  presumed  from  lapse  of  time,  the  debt 
book  of  a  deceased  attorney  was  produced,  in  which  he  made  charges 
for  suffering  the  recovery,  and  other  charges  for  drawing  and  en- 
grossing the  surrender.  The  charges  appeared  by  the  book  to  have 
been  paid.  This  was  held  to  be  good  evidence  after  the  death  of  the 
attorney,  who,  if  living,  might  have  been  examined  to  the  fact.  See, 
also,  Spiers  v.  Morris,  9  Bing.  687;  Marks  v.  Lahee,  3  Bing.  N.  C. 
408;  Whitnash  v.  George,  8  Barn.  &  G.  556;  Goss  v.  Watlington,  3 
Brod.  &  B.  132;  and  Stead  v.  Heaton,  4  Term  R.  669.  In  Middleton 
V.  Melton,  10  Barn.  &  C.  317,  the  entry  made  by  a  deceased  col- 
lector of  taxes  in  a  private  book  kept  by  him  for  his  own  convenience, 
in  which  he  charged  himself  with  the  receipt  of  sums  of  money,  was 
held  to  be  evidence  of  the  fact  of  the  receipt  of  the  money  in  an  action 
against  a  surety  on  his  official  bond,  although  the  parties  by  whom 
the  money  had  been  paid  were  alive,  and  might  have  been  called  as 
witnesses.  The  decision  went  upon  the  ground  that  the  entry  was  to 
the  prejudice  of  the  party  who  made  it.  To  the  same  effect  is  Doe  d. 
Smith  V.  Cartwright,  1  Car.  &  P.  218,  where  the  books  of  a  collector 
of  taxes,  charging  himself  with  the  receipt  of  money,  also  the  books 
of  an  insurance  company,  charging  itself  with  receiving  money,  were 
admitted  as  tending  to  show  an  occupancy  of  certain  premises  by  a 
party,  in  an  action  between  third  parties. 

There  is  another  class  of  cases  in  which  entries  have  been  received 
in  evidence  against  third  persons,  if  the  entries  were  made  by  a  per- 
son having  knowledge  of  the  fact  entered,  contemporaneously  there- 
with, and  in  a  course  of  business.  Price  v.  Earl  of  Torrington,  1 
Salk.  285,  is  a  leading  case  of  this  character.  The  book  kept  by  a 
clerk,  in  which  was  set  down  at  night  an  account  of  the  beer  delivered 
out  by  the  draymen  during  the  day,  and  to  which  they  set  their  names, 
according  to  the  usual  way  of  the  plaintiff's  dealing,  was  held  good 
evidence  of  a  delivery  to  the  defendant,  the  drayman  who  delivered 
the  beer  sued  for  being  dead.  The  cases  are  numerous  where  evi- 
dence of  this  kind  has  been  received  upon  the  ground  that  the  per- 
sons who  made  the  entries  "had  no  interest  to  misstate  what  occurred." 
In  Doe  d.  Patteshall  v.  Turford,  3  Barn.  &  Adol.  890,  a  memorandum 
of  the  fact  and  time  of  service,  indorsed  by  one  P.  on  a  duplicate 
notice  to  quit,  was,  after  the  death  of  P.,  held  admissible  as  being  a 
minute  in  writing,  made  at  the  time  when  the  fact  it  records  took  place 
by  a  person  since  deceased,  in  the  ordinary  course  of  his  business,  cor- 
roborated by  other  circumstances  which  render  it  probable  that  the 
fact  occurred.  In  Nicholls  v.  Webb,  8  Wheat.  326,  5  L.  Ed.  628,  the 
record  book  of  a  deceased  notary  was  held  admissible.  The  entry  in 
the   margin   was:     "Indorser   duly   notified    19th   (17th)   July,    1819; 


Sec.  2)  RECOGNIZED   EXCEPTIONS  601 

the  last  day  of  grace  being  Sunday,  the  18th."  It  was  objected  that 
the  evidence  was  in  the  nature  of  hearsay.  "But  the  answer  is,"  said 
Judge  Story,  "that  it  is  the  best  evidence  the  nature  of  the  case  ad- 
mits of.  If  the  party  is  dead,  we  cannot  have  his  personal  examina- 
tion on  oath,  and  the  question  then  arises  whether  there  shall  be  a 
total  failure  of  justice,  or  secondary  evidence  shall  be  admitted  to 
prove  facts,  where  ordinary  prudence  cannot  guard  against  the  ef- 
fects of  human  mortality  ?  " 

[After  reviewing  Nourse  v.  McCay,  2  Rawle  (Pa.)  70,  Poole  v. 
Dicas,  1  Bingham,  N.  C.  649,  Doe  v.  Robinson,  15  East,  32,  and  Welsh 
v.  Barrett,  15  Mass.  380,  the  opinion  continues :] 

The  case  at  bar  does  not  fall  within  either  of  these  classes.  The 
entry  was  made  in  Woodward's  usual  course  of  business,  but  was  not 
against  his  interest,  nor  can  it  be  said  that  he  had  no  interest  to  mis- 
represent. Was  the  evidence  for  these  reasons  inadmissible?  We 
think  it  was  admissible  both  on  principle  and  authority. 

[Then  after  reviewing  State  v.  Phair,  48  Vt.  366,  Augusta  v.  Wind- 
sor, 19  Me.  317)  and  Leland  v.  Cameron,  31  N.  Y.  115:] 

Whether  the  entry,  to  be  admissible,  should  appear  to  be  against 
the  interest  of  the  deceased  person  who  made  it,  is  discussed  by  Mr. 
Starkie  in  his  treatise  upon  Evidence,  and  his  reasons  for  concluding 
that  this  circumstance  does  not  afford  a  sufficient  test  for  the  admis- 
sion of  such  entries  and  the  rejection  of  all  others,  is  very  satisfactory. 
*  *  *  It  has  been  considered  in  several  of  the  states  that  neither 
the  best  administration  of  justice  nor  any  well-established  rule  re- 
quired the  adoption  of  the  limitation  that  the  entry  must  appear  to 
have  been  made  against  the  interest  of  the  person  making  it ;  and  the 
decisions  in  this  country  are  more  in  accordance  with  those  of  Warren 
v.  Greenville  and  Doe  d.  Patteshall  v.  Turford  than  with  the  most  of 
the  English  cases.  This  court  is  not  satisfied  with  the  reasoning  upon 
which  that  limitation  was  introduced,  and  does  not  feel  obliged  to 
adopt  it."  See,  also,  1  Starkie,  Ev.  (Mete.  Ed.)  299-301 ;  1  Phil.  Ev. 
(Cow.  &  H.  and  Edw.  Notes)  347.     *     *     * 

The  rule  which  governs  the  admissibility  of  entries  made  by  private 
parties  in  the  ordinary  course  of  their  business,  with  some  exceptions, 
"requires,  for  the  admissibility  of  the  entries,  not  merely  that  they 
shall  be  contemporaneous  with  the  facts  to  which  they  relate,  but 
shall  be  made  by  parties  having  personal  knowledge  of  the  facts,  and 
be  corroborated  by  their  testimony,  if  living  arid  accessible,  or  by  proof 
of  their  handwriting,  if  dead,  or  insane,  or  beyond  the  reach  of  the 
process  or  commission  of  the  court.  The  testimony  of  living  witness- 
es personally  cognizant  of  the  facts  of  which  they  speak,  given  under 
the  sanction  of  an  oath  in  open  court,  where  they  may  be  subjected 
to  cross-examination,  affords  the  greatest  security  for  truth.  Their 
declarations,  verbal  or  written,  must,  however,  sometimes  be  admitted 
when  they  themselves  cannot  be  called,  in  order  to  prevent  a  failure  of 
justice.    The  admissibility  of  the  declarations  is  in  such  cases  limited 


602  HEARSAY  (Ch.  3 

by  the  necessity  upon  which  it  is  founded."  Chaffee  v.  U.  S.,  18  Wall. 
516,  541,  (21  L.  Ed.  908).  "Entries  made  at  the  time  acts  took  place, 
by  one  whose  duty  it  was  to  keep  a  record  of  such  acts,  or  by  the 
tradesman  whose  habit  it  was,  in  the  course  of  his  business  dealings, 
to  preserve  a  minute  of  them  himself,  ought  equally  to  be  received 
as  evidence  of  those  acts.  The  mere  fact  that  the  accounts  in  the  lat- 
ter case  may  be  to  the  interest  of  the  party  making  them  should  not  of 
itself  cause  their  rejection.  In  the  former  case  it  is  uniformly  urged 
in  support  of  the  admissibility  of  the  book  of  items  that  it  will  be  pre- 
sumed that  he  who  was  in  duty  bound  to  keep  a  faithful  transcript 
of  events  has  performed  his  duty.  The  presumption,  drawn  from 
honesty  of  purpose,  appears  to  be  just  as  strong  in  the  latter  case, 
where  the  merchant  writes  up  his  own  books  of  debts  and  credits,  and 
at  least  should  not  be  overthrown  by  the  mere  appearance  of  a  bal- 
ance in  his  favor."  Bank  v.  Knapp,  15  Am.  Dec.  192,  note  and  cases 
cited.  The  person  who  made  the  entry  if  he  is  alive,  and  a  competent 
witness,  and  within  the  jurisdiction,  is  called  to  verify  his  writing.  If 
dead,  or  beyond  reach,  or  incompetent,  his  testimony  is  dispensed  with 
ex  necessitate.  Bartholomew  v.  Farwell,  41  Conn.  107,  109;  New 
Haven,  etc.,  Co.  v.  Goodwin,  42  Conn.  230,  231.     *     *     * 

There  is  a  distinction  between  entries  made  in  the  usual  and  regular 
course  of  business  and  a  private  memorandum.  The  latter  is  mere 
hearsay,  and  inadmissible  in  evidence  after  the  death  of  the  person 
who  made  it.  Entries  made  in  the  regular  and  usual  course  of  business 
stand  differently.  When  shop  books  are  kept,  and  the  entries  are  made 
contemporaneously  with  the  delivery  of  goods  or  performance  of  labor 
by  a  person  whose  duty  it  was  to  make  them,  they  are  admissible, 
unless  the  nature  of  the  subject  is  such  as  to  render  better  evidence 
attainable.  ]\Ir.  Greenleaf  says  the  remark  that  this  evidence  is  admit- 
ted contrary  to  the  rules  of  the  common  law  is  incorrect ;  that  "in 
general  its  admission  will  be  found  in  perfect  harmony  with  those  rules, 
the  entry  being  admitted  only  when  it  was  evidently  contemporaneous 

with  the  fact,  and  part  of  the  res  gesta;."  1  Greenl.  Ev.  §§  117, 
22g      *     *     * 

If  book  entries  made  by  deceased  persons  in  the  regular  course  of 
business  are  admissible  to  show  identity,  (State  v.  Phair,)  dates,  (Au- 
gusta V.  Windsor,  and  Higham  v.  Ridgway,)  the  surrender  of  an  es- 
tate, (Warren  v.  Greenville,)  in  an  action  against  a  surety  that  his  prin- 
cipal had  received  money,  (Middlcton  v.  Melton,)  the  delivery  of 
goods,  (Price  v.  Earl  of  Torrington,)  the  service  of  a  notice  to  quit, 
(Doe  d.  Patteshall  v.  Turford,)  notice  to  an  indorser,  (Nicholls  v. 
Webb,)  and  that  a  deed  was  a  forgery,  (Nourse  v.  McCay,)  we  think 
the  entry  on  Woodward's  book  of  accounts,  made  in  the  usual  course 
of  his  business,  and  which  it  was  his  duty  to  make,  was  admissible,  he 
being  dead,  to  show  the  character  and  extent  of  the  injury  to  the 
wheel,  which  tended  to  show  that  the  wheel  was  broken  by  a  colli- 
sion.   We  cannot  see  that  it  makes  any  difference  as  regards  the  ques- 


Sec.  2)  RECOGNIZED   EXCEPTIONS  603 

tion  of  the  admissibility  of  the  evidence,  whether  the  purpose  was  toi 
show  the  date  when  the  injury  occurred,  or  to  identify  the  wheel,  orj 
to  show  the  e>;tent  of  the  injury.  Our  conclusion  is  that  there  was  noj 
error  in  the  ruling  admitting  the  book.  The  instructions  requested! 
were  properly  denied.     State  v.  Railroad,  58  N.  H.  408. 

Exceptions  overruled. ^^ 

Bingham,  J.,  did  not  sit.     CarpKntEr,  J.,  dissented  on  the  com- 
petency of  the  shop  book.    The  others  concurred  in  the  opinion. 


INGRAHAM  v.  BOCKIUS  et  al. 
(Supreme  Court  of  Pennsylvania,  1823.     9  Serg.  &  R.  2S5,  11  Am.  Dec.  730.) 

Error  to  the  Common  Pleas  of  Philadelphia  county. 

This  suit  was  brought  by  Peter  Bockius  and  Rudolph  Bockius,  plain- 
tiffs below,  against  Francis  Ingraham,  to  recover  the  value  of  a  certain 
quantity  of  meat,  alleged  to  have  been  sold  and  delivered  to  the  de- 
fendant by  the  plaintiffs. 

On  the  trial,  the  plaintiffs  produced  John  Vasey,  a  witness  who 
swore  "that  he  was  employed  by  the  plaintiff's,  during  the  years  1816, 
1817,  1818,  1819,  to  do  business  as  a  butcher  for  them,  according  to 
the  course  of  their  business,  that  of  butchers,  which  was  to  kill  one 
day,  and  carry  the  meat  around  the  next  day  to  customers,  who  lived 
at  some  distance  from  the  plaintiffs'  residence.  That  the  defendant 
was  a  customer,  and  took  meat.  That  the  said  John  Vasey  kept  mem- 
oranda with  a  pencil,  for  his  own  use,  of  the  meat  he  sold,  and  of  the 
persons  he  sold  to;  two  books,  in  which  the  same  were  made,  being 
produced,  and  part  of  another;  but  that  the  same  were,  in  general, 
destroyed,  those  being  the  only  memoranda  to  be  found — and  the 
same  night  or  the  next  day,  the  same  were  entered  in  their  books,  and 
that  he,  Vasey,  stood  by,  and  the  same  were  called  over  twice,  to  see 
if  they  were  correct."  The  plaintiffs  then  offered  the  entries  in  the 
plaintiffs'  books  (made  from  the  said  memoranda),  as  evidence  of  the 
sale  and  dehvery  of  the  meat  to  the  defendant,  the  plaintiff's  having  pre- 
viously sworn,  that  the  books  into  which  the  memoranda  were  so  as 
aforesaid  copied,  were  their  books  of  original  entry,  and  the  entries 
made  in  their  handwriting.  The  defendant  objected  to  the  reading  of 
the  entries  in  the  said  last-mentioned  books,  contending  that  the  same 
were  not  original  entries,  nor  the  said  books,  books  of  original  entry, 
and  prayed  the  court  not  to  admit  the  same  to  be  read,  as  evidence 
to  the  jury,  to  charge  the  defendant.  The  court,  however,  did  pennit 
the  same  to  be  read  to  the  jury.  The  defendant  then  objected,  that  the 
said  last-mentioned  books  and  entries,  were  not  evidence  of  the  sale 

01  And  so  in  Town  of  Bridgewater  v.  Town  of  Roxbury,  54  Conn.  213.  6 
Atl.  415  (1SS6)  book  of  a  physician,  who  had  become  insane,  to  prove  rendi- 
tion of  services  to  a  pauper;  Sharp  v.  Blanton,  194  Ala.  400,  69  South.  8S9 
(1915)  book  of  a  deceased  physician  to  show  date  of  birth. 


604  HEARSAY  (Ch.  3 

and  delivery  of  goods  to  the  defendant,  and  requested  the  court  to 
charge  the  jury,  that  the  same  were  not  evidence  of  the  sale  and  de- 
livery of  goods  to  the  defendant;  but  tlie  court  charged  the  jury,  that 
the  same  were  evidence  of  the  sale  and  delivery  of  goods  by  the  plain- 
tiffs to  the  defendant.  To  the  admission  of  which  said  evidence  and 
charge,  the  defendant  excepted. °- 

The  opinion  of  the  court  was  delivered  by 

Gibson^,  J.  Nothing  appears  to  ?hcnv  that  the  book  admitted  to  go 
to  the  jury,  was  not  a  book  of  original  entries.  Vasey,  the  witness, 
acted  in  the  capacity  of  a  servant,  to  deliver  meat  to  the  customers, 
and  not  in  that  book-keeper ;  and  his  memoranda,  made  with  a  pencil, 
he  swore  were  only  for  his  own  use,  to  enable  liim  to  render  a  true 
account  to  the  plaintiffs,  of  the  meat  sold.  His  memoranda,  tlierefore, 
are  not  to  be  viewed  in  the  light  of  the  original  entries  of  the  plaintiffs 
who  did  not  direct  them  to  be  made;  or  at  least,  for  any  other  pur- 
pose than  to  obtain  an  accurate  account  of  the  sales  to  his  customers. 
It  is  clear,  these  memoranda  ^^  were  not  considered  as  evidence,  to 
charge  the  customers,  either  by  the  plaintiffs  or  Vasey ;  or  as  anything 
else  than  brief  notes  of  the  transactions  occurring  in  the  course  of  the 

«2  Statement  condensed. 

8  8  And  so  where  the  entries  were  made  on  a  slate  and  then  transferred  to 
a  book.     Faxon  v.  Hollis,  13  Mass.  427  (1816). 

Per  Curiam  in  Forsyth  v.  Norcross,  5  ^Yatts  (Pa.)  432,  30  Am.  Dec.  334 
(1S36):  "An  entry  on  a  card  or  a  slate,  is  but  a  memorandum  preparatory  to 
permanent  evidence  of  the  transaction,  which  must  be  perfected  at  or  near 
the  time,  and  in  the  routine  of  the  business.  But  the  routine  must  be  a  rea- 
sonable one ;  for  there  is  nothing  in  the  condition  of  a  craftsman  to  call  for 
indulgence  till  his  slate  be  full,  or  till  it  be  convenient  for  him  to  dispose  of 
the  contents  of  it.  In  Ingraham  v.  Bockius,  9  Serg.  &  R.  (Pa.)  285  [11  Am. 
Dec.  730  (1823)],  and  Patton  v.  Ryan,  4  Rawle  (Pa.)  410  [1834],  the  entries 
were  transferred  the  same  evening  or  the  next  morning ;  and  they  ought  in 
every  instance  to  be  so  in  the  course  of  the  succeeding  day.  In  Vicary  v. 
Moore,  2  Watts  (Pa.)  458  [27  Am.  Dec.  323  (1834)],  entries  transferred  from 
scraps  of  paper  carried  about  in  the  pocket  during  one  or  more  days,  were 
held  to  be  inadmissible;  and  on  this  principle,  the  book  was,  in  the  present 
instance,  incompetent" 

Compare  Bigelow,  J.,  la  Barker  v.  Haskell,  9  Cush.  (Mass.)  218  (1852),  where 
it  appeared  that  in  some  instances  two  or  three  days  elapsed  before  the  en- 
tries on  the  slate  were  transferred  to  the  book:  "2.  The  next  objection  is, 
that  the  entries  were  not  sea.sonably  made  on  the  book.  The  evidence,  as 
reported,  fails  to  sustain  this  objection ;  the  fair  inference  being,  that  they 
were  copied  from  the  slate  daily.  But  if  it  were  not  so,  it  by  no  means  fol- 
lows that  the  Ijooks  would  be  inadmissible  to  prove  the  charges.  Although 
the  rule  is  well  settled,  that  the  entries,  to  be  competent,  must  have  been 
made  at  or  near  the  time  the  charges  wore  incurred,  it  does  not  fix  any  pre- 
cise time  within  which  they  must  be  made.  There  is  no  intlexible  rule  re- 
quiring them  to  be  made  on  the  same  day.  Morris  v.  Briggs,  3  Cush.  (Mass.) 
342  [1849].  In  this  particular,  every  ca.se  must  be  made  to  depend  very  much 
upon  its  own  peculiar  circumstances,  having  regard  to  the  situation  of  the 
partifs,  the  kind  of  business,  the  mode  of  conducting  it,  and  the  time  and 
manner  of  making  the  entries.  Upon  qin'stiona  of  this  sort,  much  must  be 
left  to  the  judgment  and  discretion  of  the  judge  wlio  i)rosides  at  the  trial; 
because,  having  the  books  before  liim,  and  understanding  all  the  circumstanc- 
es of  the  case,  he  is  better  able  to  decide  upon  all  questions  involving  the 
fairness  and  regularity  of  the  entries  sought  to  be  proved." 


5 


Sec.  2)  RECOGNIZED  EXCEPTIONS  605 

business,  and  made  at  the  time,  with  a  view  to  be  used  when  the  regu- 
lar entries  came  to  be  made  in  the  books.  These  entries,  the  witness 
swore,  were  made  on  the  night  of  the  day  of  deHvery,  or  the  next  morn- 
ing, while  the  witness  stood  by,  and  the  memoranda  were  called  over 
twice,  to  see  whether  everything  was  right.  This  case  is  very  like 
Curren  v.  Crawford,  4  Serg.  &  R.  3,  except  that  it  is  stronger;  the 
person  who  delivered  the  articles  charged,  being  produced,  and  the 
original  memoranda  either  produced,  or  their  loss  proved.  What  more 
could  possibly  be  done?  The  entries  were  made  in  a  course  of  dealing 
between  the  parties,  at  or  about  the  time  of  the  respective  transactions, 
and  in  the  usual  course  of  the  plaintiffs'  business;  this  was,  in  all 
reason,  sufficient  to  entitle  them  to  be  read. 
Judgment  affirmed.®* 


KENT  V.  GARVIN. 

(Supreme  Judicial  Court  of  Massachusetts,  1854.     1  Gray,  148.) 

Assumpsit  for  thirty  barrels  of  ale  sold  and  delivered  to  the  de- 
fendant. The  case  was  referred  to  an  auditor,  whose  report  the  plain- 
tiff offered  in  evidence  at  the  trial  in  the  court  of  common  pleas. 

From  this  report  it  appeared  that  at  the  hearing  before  the  auditor, 
the  plaintiff,  to  prove  his  account,  offered  his  book  of  original  entries, 
and  called  as  a  witness  the  clerk  who  kept  the  books,  who  testified,  that 
tlie  book  produced  was  the  plaintiff's  book  of  original  entries ;  that  he 
made  the  entries ;  that  he  took  them  from  the  delivery  book  of  the 
drayman  every  Saturday  night;  that  the  drayman  stood  by  his  side, 
and  read  off  the  entries,  and  he  copied  them  into  the  plaintiff's  book; 
and  then  the  drayman  read  them  off  from  the  delivery  book,  and 
compared  them,  and  if  they  were  right,  the  witnesses  checked  them  in 
the  plaintiff's  book ;  that  this  was  done  in  the  present  case ;  and  that 
the  drayman  was  now  in  California.  It  also  appeared  by  the  audi- 
tor's report  that  most  of  the  barrels  were  delivered  on  Monday. 

The  defendant  objected  to  the  admission  of  the  auditor's  report  for 
the  following  reasons :  (1)  The  drayman's  book,  and  not  the  book  pro- 
duced by  the  clerk,  was  the  plaintiff's  book  of  original  entry.  (2)  The 
drayman's  book,  if  not  the  book  of  original  entry,  contained  the  origi- 
nal memoranda  from  which  the  plaintiff's  clerk  made  the  entries  sworn 
to  by  him.  As  the  drayman  is  not  produced,  his  unsupported  declara- 
tions to  the  clerk  are  the  only  evidence  to  show  by  whom  or  when  such 

64  In  Burton  v.  Plummer,  2  Ad.  &  El.  341  (1843),  where  a  clerk  had  made 
the  entries  in  a  "waste"  bools.  from  wliicQi  they  had  been  transferred  to  a 
ledger  by  the  master,  and  checlied  by  the  clerk  at  the  time,  Taunton,  J.,  ob- 
served: "The  witness  proved  that  these  entries,  like  all  the  others,  were 
shown  to  liim,  and  that  he  cliecked  the  entries  himself.  The  entries  so  made 
by  tlie  master  stand  upon  tlie  same  footing  as  if  they  had  been  made  by  the 
witness  himself." 


606  HEARSAY  (Ch.  3 

memoranda  were  made.  (3)  If  the  drayman's  memoranda  are  proved 
by  his  declaration  to  the  clerk,  as  the  drayman  read  off  to  the  clerk  on 
Saturday  night  the  deliveries  of  the  whole  week  and  as  most  of  the 
barrels  were  delivered  on  Monday,  six  days  elapsed,  in  most  instances, 
between  the  delivery  and  the  charge.  Declarations  made  more  than  one 
day  after  a  transaction  cannot  be  considered  as  of  the  res  gestae. 

But  Perkins,  J.,  overruled  these  objections,  and  admitted  the  report 
in  evidence.  Whereupon  the  jury  returned  a  verdict  for  the  plaintiff; 
and  the  defendant  alleged  exceptions. 

BiGiCLOW,  J.  It  has  long  been  the  settled  law  of  this  common- 
wealth, that  it  is  not  a  valid  objection  to  the  competency  of  a  party's 
book,  supported  by  his  suppletory  oath,  that  the  entries  therein  were 
transcribed  from  a  slate  or  memorandum-book  in  which  they  were  first 
entered  for  a  temporary  purpose,  although  the  entries  on  the  slate  or 
memorandum  were  made  by  a  person  other  than  the  party  who  copied 
them  on  to  the  book.  In  such  cases,  the  entry  of  the  charges  in  the 
regular  day-book  of  the  party  is  deemed  to  be  the  first  and  original 
entry,  and  as  such,  competent  proof,  with  the  oath  of  the  party,  of  the 
charges  therein  made.  Faxon  v.  Hollis,  13  Mass.  427;  Smith  v.  Sand- 
ford,  12  Pick.  139,  22  Am.  Dec.  415;  Ball  v.  Gates,  12  Mete.  491; 
Morris  v.  Briggs,  3  Cush.  342.  But  in  all  these  cases  it  will  be  found, 
that  in  addition  to  the  oath  of  the  party  who  made  the  entries  in  the 
day-book,  the  testimony  of  the  person  who  made  the  entries  on  the 
slate  or  memorandum-book  was  adduced,  to  prove  that  articles  were 
delivered  or  work  performed  of  a  character  similar  to  those  charged 
on  the  day-book,  at  or  about  the  time  of  the  entries  therein.  The 
charges  in  the  book,  supported  by  the  oath  of  the  party  making  the  en- 
tries, are  often  the  only  evidence  of  dates,  items  and  amounts,  which 
individuals  cannot  well  retain  in  their  memories. 

The  case  at  bar  goes  beyond  any  adjudged  case  in  this  common- 
wealth. The  attempt  is  here  made  to  put  in  evidence  the  book  of  a 
party,  supported  by  the  oath  of  his  clerk  who  made  the  entries,  for 
the  purpose  of  proving  the  sale  and  delivery  of  articles  made  by  a  third 
person  in  the  employment  of  the  plaintiff,  whose  evidence  is  not  pro- 
duced in  support  of  the  charges ;  nor  is  any  evidence  offered  from  any 
source  other  than  from  the  book,  to  show  that  at  the  time  the  charges 
were  made,  any  articles,  similar  in  character  to  those  charged,  were 
delivered  by  the  plaintiff  to  the  defendant.  It  is  manifest  that  here 
an  important  link  in  the  chain  of  evidence  is  wanting.  The  clerk  who 
made  the  entries  had  no  knowledge  of  the  correctness  of  any  charge 
on  the  book.  All  he  can  say  is,  that  the  drayman,  who  delivered  the 
articles  for  the  plaintiff,  gave  to  him  from  his  memorandum-book  the 
items  which  were  entered  on  the  book.  The  case  therefore  rests  on 
the  mere  unsupported  statement  of  a  third  person,  whose  fidelity  and 
accuracy  there  are  no  means  of  ascertaining  and  testing.  It  is  in  its 
nature  mere  hearsay  testimony.  To  permit  the  books  of  a  party  to  be 
competent  proof  under  such  circumstances,  would  be  extending  the 


Sec.  2)  RECOGNIZED   EXCEPTIONS  607 

rule  applicable  to  this  anomalous  and  dangerous  species  of  evidence 
quite  too  far. 

The  book  in  the  present  case  is  also  liable  to  the  further  objection, 
that  the  entries  were  not  made,  in  many  instances,  until  six  days  after 
the  date  of  the  alleged  delivery  of  the  articles  to  the  defendant.  Of  it- 
self this  objection  would  not  perhaps  be  fatal  to  the  competency  of  the 
book,  but  taken  in  connection  with  the  absence  of  the  testimonv  of  the 
person  who  delivered  the  articles  and  made  the  original  memorandum, 
it  renders  the  book  entirely  inadmissible.  Kessler  v.  McConachy,  1 
Rawle  (Pa.)  441 ;  McCoy  v.  Lightner,  2  Watts  (Pa.)  350,  351. 

For  these  reasons  we  think  that  the  court  below  erred  in  permitting 
the  auditor's  report,  founded  on  the  charges  in  the  book,  to  be  read  to 
the  jury  in  support  of  the  plaintiff's  claim. 

Exceptions  sustained.*^^ 


CHISHOLM  et  al.  v.  BEAMAN  MACHINE  CO. 
SAME  V.  KUTSCHE. 

(Supreme  Court  of  Illinois,  1896.     160  111.  101,  43  N.  E.  796.) 

MagrudEr,  J.®^  *  *  *  upon  the  trial  below  the  plaintififs  w-ere 
permitted  to  introduce  in  evidence  the  books  of  account  of  the  Bea- 
man  Machine  Company,  over  the  objection  of  the  defendants,  to  which 
ruling  exception  was  duly  taken.  The  evidence  shows  the  following 
mode  of  keeping  account  of  the  time  spent  in  work  upon  the  ma- 
chines :  Each  workman,  at  the  end  of  each  day,  made  out  a  time 
check  or  slip  in  his  own  handwriting,  stating  therein  the  number  of 
the  piece  he  had  worked  upon,  and  the  number  of  hours  he  had  w^orked 
thereon  during  the  day.    At  the  close  of  the  day  he  dropped  this  time 

65  Compare  Price  v.  Torrtngton,  ante,  p.  581. 

Lathrop,  J.,  in  Gould  v.  Hartley,  187  Mass.  561,  73  N.  E.  656  (1905):  "While 
the  plaintiff,  to  prove  some  of  the  items  of  the  account,  put  in  evidence  mem- 
oranda with  the  defendant's  signature  attached,  as  to  the  other  items  the 
only  olfer  of  proof  was  a  book  alleged  to  have  been  kept  by  the  plaintiff  in 
the  usual  course  of  his  business.  This  book  was  kept  by  a  clerk  in  the  ofBce 
of  the  hotel,  who  had  no  personal  knowledge  of  the  items  of  goods  sold  by  the 
cigar  department  and  the  bar  department  of  the  plaintiff's  hotel,  and  whose 
only  knowledge  was  derived  from  slips  sent  to  his  office  from  these  departments 
by  a  bell  boy.  The  original  slips  were  not  produced,  and  neither  of  the  em- 
ployes who  had  charge  of  the  bar  or  the  cigar  department  was  called  to  tes- 
tify. Under  these  circumstances,  we  are  of  opinion  that  the  judge  erred  in 
admitting  the  book  in  evidence.  This  was  decided  in  Kent  v.  Garvin,  1  Gray, 
148  [1854],  and  the  nile  there  laid  down  has  been  recognized  ever  since  to 
be  the  law.  Harwood  v.  Mulry,  8  Grav,  250,  252  [1857] ;  Miller  v.  Shav,  145 
Mass.  162,  13  N.  E.  468,  1  Am.  St.  Rep.  449  [1SS7] ;  Donovan  v.  Boston  & 
Maine  R.  R.,  1.58  Mass.  450,  453,  33  N.  E.  583  [1893].  The  books  of  a  bank 
stand  on  a  different  footing.  Produce  Exchange  Trust  Co.  v.  Bieberbach,  176 
Mass.  577,  587,  58  N.  E.  162  [1900]. 

Exceptions  sustained. 

66  Statement  and  part  of  opinion  omitted. 


608  HEARSAY  (Ch.  3 

slip  into  a  locked  box,  arranged  like  a  letter  box,  in  the  tool  room  of 
the  shop.  The  next  morning  tlie  foreman  of  the  shop  took  these  time 
shps  out  of  the  box,  checked  them  over,  went  to  see  the  workman 
who  made  the  slip  if  anything  was  wrong  about  it,  marked  the  slips 
"Approved"  which  were  found  to  be  correct,  and  then  turned  them 
over  to  the  bookkeeper  in  the  usual  way.  The  bookkeeper,  on  the 
same  day  or  the  following  day,  made  a  transcript  of  these  tickets  or 
time  slips  into  a  book  called  the  "time  book" ;  the  entries  therein 
showing  the  number  of  the  piece  of  machinery  worked  upon,  the  name 
of  the  workman,  and  the  amount  of  the  time.  During  the  time  when 
the  work  was  done  upon  these  brick  machines,  from  the  early  part  of 
May,  1890,  to  the  early  part  of  December,  1890,  the  entries  in  the  time 
book  were  made  by  two  bookkeepers.  When  the  books  were  intro- 
duced, these  bookkeepers  were  placed  upon  the  stand  and  swore  that 
the  entries  in  the  time  book  were  correct ;  that  such  entries  were  a 
correct  transcript  of  the  tickets,  and  for  the  work  done  in  the  shop,  as 
shown  by  the  tickets;  that  the  entries  were  made  from  the  tickets 
made  out  by  the  men  in  the  shop,  and  generally  handed  to  the  book- 
keeper by  the  foreman  the  next  morning;  that  the  tickets  were  ex- 
amined by  the  bookkeepers,  and  when  any  errors  were  found,  they 
were  corrected  by  the  foreman  and  the  bookkeeper  before  the  entries 
were  made  in  the  book.  The  foremen  who  had  charge  of  the  work- 
men during  the  progress  of  the  work  upon  the  machines,  and  who  ex- 
amined and  approved  of  the  tickets  or  time  slips,  were  also  put  upon 
the  stand,  and  swore  to  their  signatures  upon  the  time  slips ;  that  they 
had  looked  them  over,  and  had  superintended  the  men,  and  had  had 
charge  of  their  work;  that  the  tickets,  turned  in  for  the  work,  as 
signed  and  approved  by  them,  w&re  correct,  and  correctly  represented 
the  time ;  and  that  the  work  specified  on  the  tickets  was  done.  Some 
5,000  of  these  original  tickets  were  brought  into  court  during  the 
trial  of  the  cases  below,  and  it  sufficiently  appears  that  they  were  con- 
sidered as  being  introduced  in  evidence.  One  of  the  foremen  testified 
that  he  had  examined  them  all  carefully  on  the  morning  of  the  day  on 
which  he  testified.  Before  the  trial  they  were  carefully  examined  by 
the  bookkeeper  of  appellants  in  the  presence  of  the  bookkeeper  of  ap- 
pellees ;  and,  a  short  time  before  the  trial,  Kutsche,  the  president  of 
the  machine  company,  and  MoUiter,  one  of  its  bookkeepers,  checked 
over  the  entries  in  the  time  book  from  the  tickets,  and  found  only 
about  10  entries,  out  of  some  5,000,  for  which  there  were  not  corre- 
sponding tickets.  It  appears,  from  the  evidence,  that  the  foremen  or 
superintendents  employed  by  the  machine  company  not  only  super- 
intended the  workmen,  but  actually  worked  with  them  upon  the  ma- 
chines during  their  construction,  thus  having  an  opportunity  to  see 
what  work  was  done.     *     *     * 

We  think  that  the  books  were  properly  admitted  in  evidence  in  con- 
nection with  proof  of  the  facts  and  circumstances  already  detailed. 
Their  mere  admission  was  not  a  determination  of  the  weight  to  which 


Sec.  2)  RECOGNIZED   EXCEPTIONS  600 

they  weire  entitled  as  evidence,  and  it  was  the  privilege  of  the  appellants 
to  attack  their  reliability  by  any  legitimate  testimony  tending  to  show 
their  incorrectness.  It  is  claimed  by  the  appellants  that  the  workmen 
who  did  the  work  on  the  machines,  and  made  out  the  time  slips,  should 
have  been  produced,  and  asked  whether  they  actually  worked  as  many 
hours  as  were  indicated  upon  the  sHps.  This,  certainly,  would  have 
been  the  best  evidence  upon  the  subject ;  but  it  is  easy  to  see  that,  upon 
the  trial  of  a  case  like  this  occurring  long  after  the  transactions  de- 
noted by  the  entries,  it  might  not  be  possible  to  find  the  men  who  made 
the  slips.  The  books  themselves  were  accompanied  by  the  testimony 
of  the  bookkeepers  who  made  the  entries  that  such  entries  were  cor- 
rectly made  from  the  time  slips,  and  by  the  testimony  of  the  foremen, 
who  superintended  the  work  as  done,  and  did  a  part  of  it  themselves, 
that  the  time  slips  were  correct,  and  that  the  work  represented  thereby 
was  actually  done. 

The  entries  in  the  account  book,  or  book  of  original  entries,  may  be 
proved  by  the  clerk  who  made  them,  if  he  is  alive,  and  can  be  pro- 
duced. In  order  to  make  the  book  admissible,  it  is  necessary  that  the 
entries  therein  should  have  been  made  in  the  ordinary  course  of  busi- 
ness, by  a  person  whose  duty  it  was  to  make  them,  and  that  they  should 
have  been  made  contemporaneously  with  the  doing  of  the  work  for 
which  the  charges  are  made,  so  as  to  form  a  part  of  the  res  gestae. 
House  v.  Beak,  141  111.  290,  30  N.  E.  1065,  33  Am.  St.  Rep.  307.  The 
time  slips  were  made  on  the  day  the  work  was  done  so  far  as  they 
were  made  by  the  workmen,  and  on  the  morning  after  the  work  was 
done  so  far  as  they  bore  the  signatures  and  marks  of  approval  of  the 
foremen,  and  they  were  transcribed  into  the  time  book,  as  a  general 
thing,  on  the  day  after  the  work  was  done.  Whether,  therefore,  the 
time  book  or  the  time  slips  be  regarded  as  containing  the 'original 
entries,  they  were  made  so  near  the  time  of  the  actual  performance 
of  the  work  as  to  be  justly  regarded  as  forming  a  part  of  the  res 
gestae.  It  must  be  remembered  that  the  time  slips  were  examined  and 
compared  by  the  foremen,  and  were  marked  "Approved"  by  them,  and 
contained  their  signatures,  and  to  that  extent  were  made  as  much  by 
them  as  by  the  workmen.  The  time  slips  not  only  contained  mem- 
oranda made  by  the  workmen,  but  also  memoranda  made  by  the  fore- 
men. Hence,  there  was  testimony  by  the  parties  making  the  time 
slips  as  well  as  by  the  parties  making  the  entries  in  the  time  book. 
Where  the  clerk  who  makes  the  entries  has  no  knowledge  of  their 
correctness,  but  makes  them  as  the  items  are  furnished  by  another,  it 
is  essential  that  the  party  furnishing  the  items  should  testify  to  their 
correctness,  or  that  satisfactory  proof  thereof, — such  as  the  transac- 
tions are  reasonably  susceptible  of, — from  other  sources,  should  be  pro- 
duced. House  V.  Beak,  supra.  Here  the  foremen,  who  furnished  the 
items  to  the  bookkeepers,  testified  to  their  correctness.  If  their  knowl-. 
edge  of  the  work  done  was  not  as  full  and  complete  as  the  knowledge  | 
HiNT.Ev.— 39 


CIO  HEARSAY  (Ch.  3 

'of  the  workmen  themselves,  yet,  as  they  superintended  the  doing  of 
the  work,  and  participated  in  its  performance,  their  testimony  was 
such  satisfactory  proof  of  the  correctness  of  the  items  as  the  transac- 

|tions  were  reasonably  susceptible  of.     *     *     * 
Judgment  affirmed. "^ 


SQUIRES  V.  O'CONNELL  et  al. 
(Supreme  Court  of  Vermont,  191G.     91  Vt.  35,  99  Atl.  268.) 

MuNSON,  C.  J."^  The  plaintiff  claims  to  recover  a  balance  due  him 
for  cutting,  sawing,  and  sticking  up  lumber  under  a  contract  with  the 
defendants.  The  amount  of  the  lumber  is  the  only  thing  in  dis- 
pute. 

The  plaintiff  testified  that  he  sublet  the  cutting  and  drawing  to  one 
party,  and  the  drawing  out  and  sticking  up  to  another ;  that  he  was  not 
personally  on  the  job,  except  that  he  went  to  the  mill  about  once  in 
two  weeks ;  that  he  employed  a  sawyer  and  a  man  to  measure  the 
lumber;  that  Rowland  was  the  measurer  until  the  job  was  nearly 
completed,  and  that  Carruth  then  took  his  place;  that  the  measure- 
ment was  kept  on  tally  boards  in  the  mill,  and  that  when  he  went  there 
he  took  figures  from  the  tally  board  and  examined  the  markings  on 
the  lumber  and  the  measurement  of  it;  that  he  received  figures  from 
Rowland  and  Carruth  as  to  the  lumber  measured  and  set  them  down 
correctly  at  the  time  in  a  book  kept  at  his  house ;  that  he  had  no  other 
account  of  the  lumber,  the  tally  boards  and  the  memoranda  obtained 
from  the  measurers  having  been  destroyed.  The  book  was  received 
in  evidence  in  connection  with  the  testimony  of  the  plaintiff,  against 
the  defendants'  objection  and  exception.  The  objection  was  general, 
but  the  grounds  of  objection  were  manifest  from  the  detailed  explana- 
tion of  the  manner  in  which  the  business  was  done  and  the  account 
kept ;  and  the  book  was  doubtless  received  when  it  was  in  the  expecta- 
tion that  Rowland  and  Carruth  would  be  called  to  authenticate  the 
account.  The  plaintiff  was  then  allowed  to  testify  that  the  book  rep- 
resented the  correct  amount  of  lumber  as  reported  to  him  by  Row- 
land and  Carruth,  and  to  give  from  it  the  total  amount  of  lumber  saw- 
ed on  the  job.  The  statement  of  the  amount  was  objected  to  as  hear- 
say. Rowland  was  a  witness  later,  and  testified  that  he  was  ex- 
perienced in  measuring  lumber,  and  that  he  measured  and  marked 
this  lumber  correctly,  and  correctly  reported  the  account  to  the  plain- 
tiff from  time  to  time  when  he  was  at  the  mill.  This  verified  as  much 
of  the  account  as  was  based  on  Rowland's  reports,  but  the  statement 

87  For  a  similar  situation,  see  Mayor,  etc.,  of  Now  Yorl<  City  v.  Second  Ave. 
Ry.  Co.,  102  N.  Y.  uTl,  7  N.  E.  UUo,  G.j  Am.  Rop.  S.'>9   (ISSU). 

«''  Part  of  opinion,  as  well  as  dissenting  opinion  of  Munson,  C.  J.,  are 
omitted. 


n 


Sec.  2)  RECOGNIZED  EXCEPTIONS  611 

of  the  total  amount  of  lumber  sawed  remained  hearsay,  unless  the  pro- 
duction of  Carruth's  evidence  was  legally  dispensed  with. 

The  defendants  claim  that  the  book  received  in  evidence  was  not  a 
book  of  original  entry,  but  that  the  original  entries  were  those  on  the 
tally  bbards  kept  by  the  measures  and  the  memoranda  taken  by  the 
plaintiff  when  on  the  lot.  This  position  is  not  well  taken.  See  Gifford 
v.  Thomas,  62  Vt.  34,  19  Atl.  1088.  It  may  be  stated  generally  that 
the  first  regular  and  collected  record  is  the  original  book,  although 
made  up  from  casual  or  scattered  memoranda.  2  Wig.  Ev.  §  1558. 
It  may  be  the  party's  original  book  of  accounts,  even  if  made  wholly 
from  the  memoranda  and  reports  of  the  employes  doing  his  business, 
and  evidencing  nothing  of  which  he  or  his  bookkeeper  had  personal 
knowledge.  Note  168  Am.  St.  Rep.  456.  The  fact  that  the  memo- 
randa and  reports  have  been  lost,  or  intentionally  destroyed  as  unim- 
portant, will  not  make  the  book  inadmissible.  Mahoney  v,  Hartford, 
etc.,  Corp.,  82  Conn.  280,  73  Atl.  766. 

The  total  given  from  the  book  covered  the  lumber  measured  and  re- 
ported by  Carruth.  Carruth  was  not  a  witness;  and  the  exceptions 
show  that  this  was  because  he  was  absent  from  the  state,  and  show 
further  that  it  did  not  appear  but  that  the  plaintiff  knew  where  he 
was,  so  that  he  could  have  taken  his  deposition.  There  are  authorities 
which  hold  that  the  mere  fact  of  absence  from  the  state  is  sufficient  to 
justify  the  court  in  dispensing  with  evidence  of  this  character,  but  we 
know  of  no  decision  in  this  state  which  goes  to  this  length.  It  seems 
to  be  well  settled,  however,  that  the  various  inferior  employes  of  a 
large  business,  whose  memoranda  of  time,  material,  receipts,  deliv- 
eries, and  the  like  are  the  bases  of  the  account,  need  not  be  called  as 
witnesses.  But  the  ordinary  protection  of  the  other  part  of  the  busi- 
ness world  seems  to  require  that  the  supervising  employes,  under 
whose  management  and  observation  this  work  goes  on,  and  who  re- 
ceive, consolidate,  and  transmit  this  data  to  those  who  make  up  the 
permanent  account,  should  be  called  if  reasonably  accessible.  If  this 
is  not  required,  the  matter  will  rest  entirely  upon  the  fact  that  it  is 
something  done  in  the  regular  course  of  the  business,  and  not  at  all 
upon  the  oath  of  any  one  having  personal  knowledge  of  it. 

Mr.  Wigmore,  in  treating  of  regular  entries  as  an  exception  to  the 
hearsay  rule,  formulates  the  rule  that  where  an  entry  is  made  by  one 
person  in  the  regular  course  of  business,  recording  an  oral  or  written 
report,  made  to  him  by  another  in  the  regular  course  of  business,  of  a 
transaction  lying  in  the  personal  knowledge  of  the  latter,  there  is  no 
objection  to  receiving  that  entry,  provided  the  practical  inconvenience 
of  producing  as  witnesses  the  persons  thus  concerned  would  in  the  par- 
ticular case  outweigh  the  probable  utility  of  doing  so.  2  Wig.  Ev.  § 
1530,  p.  1895.  The  application  of  this  rule  manifestly  involves  a  de- 
termination by  the  trial  court  of  a  preliminary  question,  regarding 
which  much  must  necessarily  be  left  to  its  sound  discretion.  2  Wig.  Ev. 
§  1530.    The  showing  that  Carruth  was  out  of  the  state  at  the  time  of 


612  HEARSAY  (Ch.  3 

the  trial  supports  the  court's  ruling  admitting  the  book  as  offered.  The 
controlling  principle  is  that  of  practical  necessity,  and  Carruth's  un- 
availability' as  a  witness  was  a  sufficient  ground  for  dispensing  with 
his  testimony  in  corroboration  of  the  entries  made  on  his  reports. 
Griffin  V.  Boston  &  M.  R.  Co.,  87  Vt.  278,  292,  89  Atl.  220;  Osborne 
V.  Grand  T.  Ry.  Co.,  87  Vt.  104,  88  Atl.  512,  Ann.  Cas.  1916C,  74; 
2  Wig.  Ev.  §§  1521,  1530.  In  the  circumstances  we  must  presume  in 
support  of  the  ruling  that  the  trial  court  was  justified  in  finding  the 
necessity  established.  *  *  * 
Judgment  affirmed.'* 


GIVENS  V.  PIERSON'S  ADM'X. 

(Court  of  Appeals  of  Kentucky,  1916.     167  Ky.  574,  181  S.  W.  324,  Ann.  Cas. 

1917C,  956.) 

Carroll,  J.'^*'  The  principal  question  in  this  case  grows  out  of  the 
alleged  insufficiency  of  the  petition  and  evidence  to  support  a  claim  for 
$258.46  asserted  by  the  administratrix  of  W.  W.  Pierson  against  the 
appellant,  T.  K.  Givens. 

W.  W.  Pierson  died  in  February,  1912,  and  thereafter  his  adminis- 
tratrix brought  suit  to  recover  a  balance  of  $224.27  alleged  to  be  due 
her  intestate  on  an  open  account.  The  first  item  on  the  ledger  ac- 
count introduced  as  evidence  reads,  "March  1,  1909;  balance  transfer- 
red, $258.46;"  and  this  item  is  followed  by  other  items  of  indebted- 
ness running  from  March  4,  1909,  to  March,  1911,  during  which  time 
the  account  was  credited  by  various  items,  leaving  due,  according  to 
the  face  of  the  account,  the  balance  stated.     *     *     * 

On  the  trial  of  the  case  Givens  was  not  offered  as  a  witness,  and 
the  only  witness  introduced  by  the  administratrix  was  Walter  E.  Mark, 
who  was  the  office  manager  and  bookkeeper  for  Pierson  from  1895 
until  shortly  before  the  death  of  Pierson  in  1912.  In  reference  to  the 
matter  of  this  $258.46,  his  testimony,  in  substance,  was  that  Pierson 
conducted  a  large  mercantile  establishment  employing  a  number  of 
clerks,  among  them  being  Givens,  who  also  was  assistant  manager.  He 
said  he  was  bookkeeper  during  the  whole  time  that  Givens'  account  was 
being  made,  and  that  when  Givens  purchased  goods  on  credit  in  the 
store,  an  entry  would  be  made  of  the  purchase  on  a  ticket  such  as  was 
in  general  use  in  the  store  by  the  clerk  making  the  sale,  and  that  the 
ticket  would  be  given  to  him  the  next  day  when  an  entry  showing  the 
transaction  as  it  appeared  on  the  ticket  would  be  made  by  him  on  a 
billbook.    That  when  Givens  drew  money  from  the  store,  as  he  often 

o»  See,  also,  West  Virginia  Archittnts  &  Builders  v.   Stewart,  68  W.   Va. 
506,  70  S.  E.  113,  36  L.  II.  A.  (N.  S.i  SI)9   (1911),  annotated,  wliore  the  i>orson 
reporlinK  to  the  lioolckeeper  had  become  disqualiiied   by    the   death  of   thf 
adver.«e  party. 
70  Tart  of  oi<inion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  613 

did,  in  payment  or  part  payment  of  his  salary,  a  ticket  showing  the 
amount  that  he  received  would  be  made  out  by  the  cashier,  and  on  the 
next  day  he  would  enter  the  transaction  shown  by  the  ticket  on  a  cash- 
book  and  soon  afterwards,  in  due  course  of  business,  the  entries  on  the 
billbook'and  the  cashbook  would  be  transferred  by  him  to  the  ac- 
count of  Givens  kept  in  the  ledger,  also  made  up  by  him.  That  this 
was  the  method  pursued  with  all  customers  of  the  store  during  the 
time  he  was  bookkeeper,  and  at  the  end  of  each  month  he  would  pre- 
sent Givens  a  statement  of  his  account  taken  from  the  ledger,  showing 
the  items  purchased  and  the  amounts  charged  therefor,  as  well  as  the 
amount  of  cash  received. 

He  further  testified  that  the  account  of  Givens  on  the  ledger  intro- 
duced on  the  trial  was  transferred  to  that  ledger  by  him  from  another 
ledger  also  kept  by  him  that  had  been  filled  up.  It  also  appeared  from 
his'testimony  that  the  tickets  made  out  by  the  clerks  and  cashier  as  well 
as  the  billhooks  and  cashbooks,  and  all  the  ledgers  except  the  one  in- 
troduced on  the  trial,  had  been  destroyed  in  a  fire.  The  witness  said 
he  did  not  have  any  personal  knowledge  of  the  merchandise  account 
or  cash  account  of  Givens  except  as  it  appeared  on  the  tickets  given  to 
him  and  from  which  he  made  the  original  entries  in  the  billhook  and 
the  cashbook,  which  were  afterwards  transferred  by  him  to  the  ledger. 
Whether  the  entries  on  these  tickets  were  correct  or  not,  he  did  not 
know.  But  he  did  know  the  method  of  business  and  that  the  entries 
of  the  transactions  had  with  Givens  were  kept  on  the  tickets  and  in  the 
books  in  the  usual  and  customary  manner,  and  that  the  billhooks  and 
cashbooks  showed  correctly  the  state  of  his  account  as  exhibited  on  the 
tickets  made  out  when  the  merchandise  was  purchased  or  the  cash  ad- 
vanced, and  also  knew  that  the  ledger  accounts  were  correctly  kept  and 
the  entries  therein  correctly  transcribed  by  him  from  the  billhooks  and 
cashbooks  and  correctly  carried  over  by  him  from  one  ledger  to 
another. 

It  will  thus  be  seen  that  the  ledger  produced  in  court,  and  which 
showed  in  the  first  entry  on  the  account  of  Givens  that  there  had  been 
transferred  from  another  ledger  a  balance  due  by  him  of  $258.46,  was 
not  a  book  of  original  entry.  The  first  original  entry,  strictly  speaking, 
was  the  entry  made  by  the  cashier  who  advanced  the  money  or  the 
clerk  who  sold  the  goods,  and  the  next  entry  was  the  entry  made  by 
this  bookkeeper  on  the  daybook  and  the  cashbook ;  and  the  next  entries 
were  those  made  by  this  bookkeeper  in  transferring  the  items  from 
the  billhook  and  the  cashbook  to  the  ledger.  So  that  the  witness  was 
only  able  to  state  from  personal  knowledge  that  the  entries  made  on 
the  billhook  and  cashbook  were  correct  copies  of  the  entries  made  on 
the  tickets,  and  that  the  entries  on  the  billhook  and  cashbook  were 
correctly  transferred  to  the  ledger,  and  when  the  first  ledger  on  which 
the  account  appeared  was  filled,  it  was  correctly  transferred  from  that 
ledger  to  tlie  one  introduced  on  the  trial. 

The  question,  therefore,  is :     Should  the  book  that  was  produced  be 


614  HEARSAY  (Cll.  3 

treated,  under  the  circumstances,  as  a  book  of  original  entry  and  en- 
titled to  the  same  weight  as  the  billhook  or  caslibook  in  which  the  entry 
was  first  made  or  the  ledger  to  which  the  account  was  first  transferred 
from  the  billhook  and  cashbook?  It  is  manifest  that  unless  the  entries 
on  this  ledger  should  be  so  treated,  the  administratrix  totally  failed  to 
make  out  her  case,  because  if  the  entry  on  the  ledger  introduced,  show- 
ing the  state  of  Givens'  account  on  March  1,  1909,  taken  in  connection 
with  the  testimony  of  the  bookkeeper,  should  not  be  treated  as  sub- 
stantive evidence  of  the  existence  of  this  indebtedness  of  Givens,  there 
was  no  evidence  offered  tending  in  any  manner  to  establish  his  indebt- 
edness in  the  sum  of  $258.46. 

There  appears  to  be  some  conflict  in  the  authorities  on  tlie  question 
of  the  admissibility  of  book  entries  such  as  were  relied  on  in  the  trial 
of  this  case  to  establish  the  indebtedness  of  Givens.  Indeed  an  inves- 
tigation of  the  cases  will  disclose  that  some  courts  have  made  what 
seem  to  be  refined  and  apparently  unsubstantial  distinctions  in  deter- 
mining what  are  and  what  are  not  original  entries  in  the  sense  that 
they  may  be  received  as  substantive  evidence.  The  general  rule,  how- 
ever, on  tlie  subject  of  the  admissibility  of  book  entries  as  substantive 
evidence  of  the  fact  that  the  transaction  disclosed  by  the  entry  actually 
took  place  is  usually  stated  by  the  authorities  in  substantially  the  same 
form.  But  in  the  practical  application  of  the  rule  to  the  different 
facts  and  circumstances  arising  in  the  trial  of  cases,  it  has  been  found 
necessary,  in  order  that  the  rule  should  be  of  any  value,  to  introduce 
many  exceptions.     *     *     * 

But  we  may  say  at  the  outset  that  the  authorities  are  very  generally 
agreed  that  the  entries  on  tickets  or  stubs  or  slips  of  paper  made  out 
by  clerks  in  stores  in  the  regular  course  of  business  and  at  the  time 
the  transaction  actually  happens,  are  not  the  original  entries  in  the 
meaning  of  the  rule.    The  original  entry  is  the  entry  first  made  in  the 

I  regular  course  of  business  in  a  permanent  book,  as,  for  example,  in  this 
case  in  the  billhook  or  cashbook.  Entries  first  made  on  tickets  or  stubs 
or  slips  of  paper  by  clerks  or  others  are  treated  as  mere  memoranda, 
admissible  as  evidence  for  the  purpose  of  refreshing  the  memory  of 
the  party  who  made  them,  if  he  is  introduced  as  a  witness,  but  not  as 
independent  or  substantive  evidence  of  the  fact  that  the  transaction 
took  place.  Chamberlayne  on  Evidence,  vol.  4,  §§  3085-3089;  Elliott 
on  Evidence,  vol.  2,  §  4G0. 

There  is  also  some  authority  to  the  effect  that  if  entries  are  made  on 
books  such  as  billhooks  or  cashbooks,  or  even  ledgers,  from  tickets  or 
stubs  or  slips  of  paper  made  out  by  clerks  or  cashiers  at  the  time  the 
transaction  occurred,  they  are  not  admissible  as  substantive,  independ- 
ent evidence  of  the  transaction  unless  the  person  making  the  entry  on 
the  billhook  or  cashbook  or  ledger  has  some  personal  knowledge  of  the 
transaction,  or  the  clerk  or  cashier  who  made  out  the  original  ticket  or 
slip  can  testify  as  to  the  correctness  of  the  entry.  Sec  cases  cited  in 
note  to  Smith  v.  Smith,  52  L.  R.  A.  545. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  615 

But  there  is  much  authority  for  the  rule,  which  we  think  the  better'^ 
one,  that  where  the  entry  is  made  in  the  usual  and  regular  course  of  J 
business  on  a  permanent  book,  whether  it  be  a  daybook  or  billhook j 
or  cashbook  or  ledger,  from  memoranda  or  tickets  or  stubs  or  slips  i 
made  out  in  the  usual  way  by  clerks  when  the  transaction  occurred,  ! 
these  book  entries  are  admissible  as  original  and  substantive  evidence  I 
of  the  transaction  whether  the  person  who  made  the  entries  be  living  f 
or  dead  at  the  time  of  the  trial,  and  without  reference  to  whether  the  ) 
original  tickets  or  stubs  or  slips  are  available  or  the  clerk  who  made  . 
the  memoranda  on  them  can  be  produced.    If  the  person  who  made  the  / 
first  book  entries  be  dead,  the  entries  are  admissible,  if  proven  to  be  in  \ 
his  handwriting  and  in  the  regular  course  of  business.    If  he  is  living   ' 
and  his  evidence  as  a  witness  can  be  secured,  it  will  of  course  be  compe-  [} 
tent  to  show  by  him  the  fact  that  he  made  the  entries  and  the  circum-j 
stances  under  which  they  were  made. 

In  Wigmore  on  Evidence,  vol.  2,  §  1530,  the  reasons  for  this  en- 
largement of  the  rule  are  thus  stated,  following  a  discussion  of  the 
grounds  on  which  they  rest: 

"The  conclusion  is,  then,  that  where  an  entry  is  made  by  one  person 
in  the  regular  course  of  business,  recording  an  oral  or  written  report, 
made  to  him  by  one  or  more  other  persons  in  the  regular  course  of 
business,  of  a  transaction  lying  in  the  personal  knowledge  of  the  latter, 
there  is  no  objection  to  receiving  that  entry  under  the  present  excep- 
tion, provided  tlie  practical  inconvenience  of  producing  on  the  stand  tlie 
numerous  persons  thus  concerned  would  in  the  particular  case  out- 
weigh the  probable  utility  of  doing  so.  Why  should  not  this  conclu- 
sion be  accepted  by  the  courts?  Such  entries  are  dealt  with  in  that 
way  in  the  most  important  undertakings  of  mercantile  and  industrial 
life.  They  are  the  ultimate  basis  of  calculation,  investment,  and  gener- 
al confidence  in  every  business  enterprise ;  nor  does  the  practical  im- 
possibility of  obtaining  constantly  and  permanently  the  verification  of 
every  employe  afifect  the  trust  that  is  given  to  such  books.  It  would 
seem  that  expedients  which  the  entire  commercial  world  recognizes 
as  safe  could  be  sanctioned,  and  not  discredited,  by  courts  of  justice. 
When  it  is  a  mere  question  of  whether  provisional  confidence  can  be 
placed  in  a  certain  class  of  statements,  there  cannot  profitably  and 
sensibly  be  one  rule  for  the  business  world  and  another  for  the  court- 
room. The  merchant  and  the  manufacturer  must  not  be  turned  away 
remediless  because  methods  in  which  the  entire  community  places  a 
just  confidence  are  a  little  difficult  to  reconcile  with  technical  judicial 
scruples  on  the  part  of  the  same  persons  who,  as  attorneys,  have  al- 
ready employed  and  relied  upon  the  same  methods.  In  short,  courts 
must  here  cease  to  be  pedantic  and  endeavor  to  be  practical."     *     *     * 

It  is  also  true  that  this  character  of  evidence  may  sometimes  give  to 
the  merchant  an  advantage  and  make  it  difficult  for  the  person  charged 
to  disprove  the  correctness  of  the  entry.  But  the  rule  admitting  this 
species  of  evidence  has  been  so  sufficiently  tested  by  the  experience  of 


CIG  HEARSAY  (Ch.  3 

the  years  it  has  been  in  effect  and  so  generally  approved  as  to  show  that 
little,  if  any,  injustice  has  been  perpetrated  under  it.  And  if  it  was 
not  admissible  to  prove  accounts  in  this  way,  it  would  many  tim-cs 
happen  that  the  merchant  would  be  unable  to  enforce  the  collection  of 
a  just  claim,  if  the  debtor  was  disposed  to  question  all  book  entries 
that  could  not  be  otherwise  proven  on  account  of  the  absence  or 
death  of  the  persons  who  sold  the  articles  or  made  the  entries  and 
the  loss  of  books. 

It  will  be  noticed  that  the  bookkeeper  testified  that  some  of  the  items 
going  to  make  up  this  balance  consisted  of  cash  advanced,  but,  under 
the  circumstances  of  this  case,  we  see  no  sound  reason  for  making  any 
distinction  between  the  items  of  cash  and  the  items  of  merchandise. 
The  advancements  of  cash  were  made  in  the  regular  course  of  business 
and  in  the  manner  employed  for  the  payment  of  his  salary,  and  the 
tickets  containing  these  cash  items,  and  the  books  themselves  on  which 
these  items  of  cash  were  entered,  were  as  much  a  part  of  the  regular 
course  of  business  as  were  the  entries  made  with  respect  to  the  mer- 
chandise purchased  by  him.  Having  this  view  of  the  matter,  the  court 
should  have  directed  a  verdict  for  the  administratrix,  at  the  conclu- 
sion of  the  evidence,  in  place  of  submitting  the  matter  to  a  jury. 
*     *     * 

Judgment  affirmed.''^ 

71  Marshall,  J.,  in  F.  Dohmen  Co.  v.  Niagara  Fire  Ins.  Co.,  96  Wis.  38,  71 
N.  W.  09  (1897):  "  *  ♦  *  From  the  very  nature  of  the  case,  the  only  evi- 
dence of  a  definite  character  that  could  be  produced  was  such  as  could  bo 
given  by  aid  of  the  books.  The  stock  of  goods  that  existed,  according  to  the 
Inventory  of  February,  1891,  had  been  added  to  in  tlie  regular  course  of  busi- 
ness for  over  a  year  and  a  half,  and  the  whole  had  been  reduced  by  daily 
sales  during  that  time.  The  multitude  of  transactions  duruig  such  period, 
of  goods  taken  in  and  sent  out,  could  not  be  established  by  evidence  from 
the  mouths  of  witnesses.  The  only  evidence  that  existed  was  locked  up  in 
the  books.  Such  being  the  case,  upon  such  books  being  reasonably  verified 
as  correct  records  of  the  daily  transactions  in  the  business  as  such  transac- 
tions were  regularly  reix)rted  to  the  office  to  be  recorded  in  such  books,  with 
proof  that  the  books  were  relied  upon  by  plaintiff  solely  as  a  repository  of 
the  facts  in  regard  to  the  business,  and  that  they  were  uniformly  foimd  to 
be  correctly  kept,  a  witness  who  had  occasion  to  refer  to  them  from  time  to 
time,  and  had  thereby,  and  through  a  general  knowledge  of  the  business,  been 
convinced  of  their  correctness,  might  properly  testify,  by  their  aid,  to  their 
contents  as  facts,  without  having  personal  knowledge  of  such  facts  independ- 
ent of  the  books,  and  without  ever  having  had  any  other  knowledge  of  all 
the  individual  transactions  than  such  as  one  might  be  reasonably  expected 
to  have  by  generally  ovurseeiiig  a  business.  Such  evidence  would  not  be  con- 
clusive by  any  means,  but  would  constitute  evidence  bearing  on  the  question 
In  suit  proper  to  be  submitted  to  the  jury  with  all  the  other  evidence  in;  the 
case." 

See  much  the  same  rule  applied  to  a  train  dispatcher's  book  made  up  from 
tclegraiibic  reports  from  various  stations.  Firemen's  Ins.  Co.  v.  Sealioard 
Air  Lin<;  R.  Co.,  138  N.  C.  42,  HO  S.  K.  452,  107  Am.  St.  Rep.  517  (1905);  I^)U- 
Isville  &  N.  R.  Co.  v.  Daniel,  122  Ky.  '2~>i],  91  S.  W.  <>91,  3  ly.  R.  A.  (N.  S.) 
119f>  (190GK  Donovan  v.  Bo.stou  &  M.  li.  R.,  158  .Mass.  450,  33  N.  E.  5.s:', 
(1893). 


Sec.  2)  RECOGNIZED   EXCEPTIONS  617 

VI.  Opficial  Registers  and  Reports 

BIRT  V.  BARLOW. 
(Court  of  King's  Bench,  1779.     1  Doug.  171.) 

This  was  an  action  of  trespass  and  assault,  for  criminal  conversa- 
tion with  the  plaintiff's  wife.  It  was  tried  before  Blackstone,  Justice, 
at  the  last  Assizes  for  Kent,  when,  by  the  direction  of  the  Judge,  the 
plaintiff  was  nonsuited. 

On  Monday,  the  26th  of  April,  Rous  moved  for  a  rule  to  shew 
cause,  why  the  nonsuit  should  not  be  set  aside,  and  a  new  trial  granted. 

This  day  BullER,  Justice,  read  the  Judge's  report,  which  was  as 
follows : 

The  first  witness  called  by  the  plaintiff  was  Thomas  Sharpe,  who 
proved  a  copy  of  the  register  of  the  parish  of  St.  Alfred,  Canterbury, 
in  haec  verba — "1767,  No.  106.  John  Birt,  Esq;  of  the  parish  of  St. 
Margaret,  Rochester,  Co.  Kent,  and  Harriot  Champneys  of  this  parish, 
married  by  banns  15  December  1767,  by  John  Lynch,  minister.  Wit- 
nesses,  Robert  Lynch,   Francis  Champneys,   Anne  Lynch,  Elizabeth 

Lynch."    Another  witness,  (Susanna )  was  next  called,  to  prove 

the  fact  of  adultery.  I  was  of  opinion,  that  this  was  not  sufficient 
evidence  of  the  marriage,  but  that  the  identity  of  the  parties  must  be 
proved,  else  it  might  possibly  be  a  register  of  the  marriage,  not  of  the 
plaintiff  and  his  supposed  wife,  but  of  some  other  persons  of  the  same 
name. 

The  counsel  for  the  plaintiff  then  said,  that,  in  the  course  of  their 
examination  to  prove  the  adulterous  intercourse,  it  would  come  out 
from  the  mouths  of  the  witnesses,  that  the  plaintiff's  reputed  wife 
was  of  the  name  and  family  of  Champneys,  and  that  they  have  long 
cohabited  together,  and  were  esteemed  to  be  man  and  wife  by  all  their 
friends  and  relations.  I  still  thought  that  the  evidence,  so  opened, 
would  be  insufficient,  holding,  in  conformity  to  the  case  of  Morris 
V.  Miller,  reported  in  4  Bur.  3057,  (and  of  which  I  also  had  a  manu- 
script note  of  my  own,)  that  this  was  the  only  civil  case  in  which  proof 
of  an  actual  marriage  was  requisite,  as  contradistinguished  from  ac- 
knowledgment by  the  parties,  cohabitation,  reputation,  &c.  That  the 
best  proof  that  could  be  given  of  an  actual  marriage,  was  by  some 
person  personally  present  at  the  solemnity,  which,  in  my  small  ex- 
perience, I  had  never  seen  an  instance  of  not  producing.  If  it  did  not 
appear  that  there  were  persons  present  besides  the  minister,  and  he 
was  dead,  perhaps  other  collateral  proof  might  be  admitted,  which 
might  render  probable  the  identity  of  the  plaintiff'  and  his  wife,  and  the 
persons  whose  marriage  was  so  registered.  But  that,  in  the  present  case, 
there  appeared  to  have  been  no  less  than  five  witnesses  present  at  the 
marriage  thus  registered,  which  was  only  eleven  years  ago.  That  the 
marriage  act  had  directed  the  witnesses  to  subscribe  their  names  to  the 


618  HEARSAY  (Ch.  3 

register,  in  order  to  facilitate  the  investigation  of  the  legal  evidence 
of  marriages.  And  that  till  these  five  witnesses  and  the  minister  were 
accounted  for,  as  by  shewing  them  all  dead,  or  the  like,  I  could  not  ad- 
mit less  proof  than  that  of  some  person  present  to  demonstrate  the  iden- 
titj'  of  the  parties. 

I  accordingly  nonsuited  the  plaintiff.  After  which  a  proctor  from 
the  ecclesiastical  court,  then  present,  declared  openly  that  he  had  been 
subpoenaed  by  the  plaintiff  to  prove,  and  could  prove  the  taking  out 
of  a  Hcence  for  the  marriage  of  the  plaintiff  and  his  reputed  wife.  I 
mention  this  circumstance,  though  it  could  be  no  ground  of  my  deter- 
mination, as  it  shews  something  more  than  a  bare  possibility  that 
the  plaintiff  and  his  wife  were  not  the  identical  persons  so  registered 
as  marr}-ing  by  banns. '^^ 

Lord  Mansfield.  From  the  report,  it  appears,  that  the  ground 
of  the  nonsuit  was  an  idea,  that  the  identity  must  be  proved  by  the 
minister,  or  some  of  the  attesting  witnesses,  unless  their  not  being 
produced  is  accounted  for,  in  the  same  manner,  as  is  required  in  the 
case  of  subscribing  witnesses  to  a  deed.  The  counsel  for  the  plain- 
tiff stated  other  evidence  of  the  identity ;  whether  such  as  would  have 
been  sufficient  when  produced  (as  that  might,  or  might  not  be,  accord- 
ing to  the  differences  arising  from  the  manner  of  stating  it,)  I  give  no 
opinion.  But  the  judge  decided,  tliat  it  was  necessary  to  produce 
some  of  the  subscribing  witnesses.  The  clauses  in  the  marriage  act 
relative  to  registers  are  of  infinite  utility  to  the  Idngdom.  They  were 
meant,  as  well  to  prevent  false  entries,  as  to  guard  against  illegal  mar- 
riages without  licence,  or  the  pubHcation  of  banns.  The  registers  are 
directed  to  be  kept  as  public  books,  and  accompanied  with  every  means 
of  authenticity.  But,  besides  facilitating  and  ascertaining  the  evidence 
of  marriages,  they  were  intended  for  other  wise  purposes.  They  are 
of  great  assistance  in  the  proof  of  pedigrees,  which  has  become  so  much 
more  difficult  since  inquisitions  post  mortem  have  been  disused,  that  it 
is  easier  to  establish  one  for  500  years  back,  before  the  time  of 
Charles  II.  than  for  100  years  since  his  reign.  But  this  advantage 
would  be  lost,  and  it  would  be  very  prejudicial,  if  the  act  were  so 
construed  as  to  render  the  proof  of  marriages  more  difficult  than  for- 
merly. I  take  it  for  granted,  that  the  law  stands  as  it  did  before  in 
that  respect. 

Registers  are  in  the  nature  of  records,  and  need  not  be  produced, 
nor  proved  by  subscribing  witnesses.  A  copy  is  sufficient,  and  is  proof 
of  a  marriage  in  fact  between  two  parties  describing  themselves  by  such 
and  such  names  and  places  of  abode,  though  it  does  not  prove  the  iden- 
tity. An  action  for  criminal  conversation  is  the  only  civil  case  where  it 
is  necessary  to  prove  an  actual  marriage.  In  other  cases,  cohabitation, 
reputation,  &c.  are  equally  sufficient  since  the  marriage  act  as  before. 
But  an  action  for  criminal  conversation  has  a  mixture  of  penal  pros- 

T2  statement  condensed  and  opinion  of  Duller,  J.,  omitted. 


Sec.  2)  RECOGXIZED  EXCEPTIONS  619 

ecution ;  for  which  reason,  and  because  it  might  be  turned  to  bad  pur- 
poses by  persons  giving  the  name  and  character  of  wife  to  women  to 
whom  they  are  not  married,  it  struck  me,  in  the  case  of  Morris  v. 
Miller,  that,  in  such  an  action,  a  marriage  in  fact  must  be  proved.  I 
say,  a  marriage  in  fact,  because  marriages  arc  not  always  registered. 
There  are  marriages  among  particular  sorts  of  dissenters,  where  the 
proof  by  a  register  would  be  impossible,  and  Dennison,  Justice,  in  a 
case  of  that  kind  which  came  before  him,  admitted  other  proof  of  an 
actual  marriage.  But,  as  to  the  proof  of  identity,  whatever  is  suffi- 
cient to  satisfy  a  jury,  is  good  evidence.  If  neither  the  minister,  nor 
the  clerk,  nor  any  of  the  subscribing  witnesses,  were  acquainted  with 
the  married  couple,  in  such  a  case,  none  of  them  might  be  able  to 
prove  the  identity.  But  it  may  be  proved  in  a  thousand  other  ways. 
Suppose  the  bellringers  were  called,  and  proved  that  they  rung  the 
bells,  and  came  immediately  after  the  marriage,  and  were  paid  by  the 
parties;  suppose  the  hand-writing  of  the  parties  were  proved;  sup- 
pose persons  called  who  were  present  at  the  wedding  dinner,  &c,  &c. 
Rule  absolute.  ■ 


SALTE  et  al.  v.  THOMAS. 
(Court  of  Common  Pleas,  1S02.     3  Bos.  &  P.  ISS.) 

This  was  an  action  by  the  Plaintiffs,  as  assignees,  upon  two  bills 
of  exchange  drawn  by  the  bankrupt,  and  accepted  by  the  Defendant. 
The  cause  was  tried  before  Chambre,  J.,  at  the  Guildhall  Sittings  in 
this  Term,  when  the  Plaintiff's,  in  order  to  prove  that  the  bankrupt 
had  committed  an  act  of  bankruptcy  by  lying  two  months  in  prison 
for  debt,  produced  the  books  of  the  Fleet  and  King's  Bench  prisons 
to  establish  that  fact.  These  books  contained  entries  of  the  dates  of 
the  commitments  and  discharges  of  all  the  prisoners,  together  with 
particulars  of  the  causes  of  each  commitment  extracted  from  the  orig- 
inal warrants.  From  these  books  it  appeared,  that  the  bankrupt  had 
been  committed  to  the  Fleet  for  debt,  and  had  been  removed  from 
thence  to  the  King's  Bench  prison,  charged  as  well  with  the  action  in 
the  Common  Pleas  as  with  several  other  actions  in  the  King's  Bench, 
and  that  he  had  altogether  lain  in  prison  above  two  months.  On  the 
part  of  the  Defendant,  it  was  objected,  that  though  the  prison-books 
were  admissible  in  evidence  to  prove  the  period  of  the  commitment 
and  discharge,  yet  they  were  not  admissible  to  prove  the  cause  of  the 
commitment,  but  that  the  original  warrants  should  have  been  pro- 
duced. The  learned  Judge  admitted  the  evidence,  reserving  the  point, 
and  a  verdict  was  found  for  the  Plaintiff's. 

The  opinion  of  the  Court  was  now  delivered  by 

Lord  Alvanley,  C.  J.  The  question  in  this  case  is.  Whether  the 
evidence  produced  was  sufficient  to  prove  a  fact  necessary  to  consti- 


620  HEARSAY  (Ch.  3 

tute  the  act  of  bankruptcy,  viz.  that  the  bankrupt  had  lain  two  months 
in  prison  on  civil  process  for  debt.  For  this  purpose  the  prison  books 
were  produced,  from  which  it  appeared  that  the  bankrupt  had  lain 
the  necessary  time  in  prison;  but  it  was  objected,  that  though  the 
books  were  evidence  of  the  time  of  the  bankrupt's  imprisonment,  they 
were  not  evidence  of  the  cause  of  the  commitment,  and  that  they  were 
not  equivalent  to  the  committitur  itself,  which  was  admitted  to  be  in 
existence.  To  establish  the  sufficiency  of  the  evidence,  the  case  of  The 
King  v.  Aickles  [Leach,  C.  C.  435]  was  cited,  by  which  it  appeared 
that  in  a  criminal  case,  where  it  was  material  to  prove  the  particular 
time  of  a  prisoner's  discharge,  the  book  of  Newgate  was  held  to  be 
sufficient  for  that  purpose.  That  was  a  book  kept  by  a  public  officer 
for  the  purpose  of  entering  the  transactions  of  the  prison,  the  names 
of  the  prisoners,  and  the  times  of  their  discharge,  which  entries  were 
sometimes  made  from  the  information  of  the  turnkeys,  and  some- 
times from  their  indorsements  on  the  warrants.  The  book  was  a 
complete  history  of  the  transactions  of  the  prison,  and  as  such  it  was 
held  to  be  evidence  of  the  day  on  which  the  prisoner  was  discharged. 
But  the  material  distinction  between  that  case  and  the  present  is,  that 
there  was  no  document  of  the  fact  which  was  proved  by  the  book  of 
Newgate  but  the  book  itself,  and  no  other  evidence  could  have  been 
resorted  to,  except  the  parol  testimony  of  the  turnkey  who  might  hap- 
pen to  be  in  the  prison  at  the  time  of  the  prisoner's  discharge.  But  in 
the  present  case,  the  committitur  from  which  the  entry-  was  inserted 
in  the  book  is  in  existence,  and  the  question  is,  Whether  that  be  not 
better  evidence  than  the  book  itself?  I  am  of  opinion,  and  my  Broth- 
ers concur  with  me  in  thinking,  that  it  was  better  evidence,  and  that 
the  books  therefore  ou^ht  not  to  have  been  admitted.  It  has  been 
said,  that  these  were  in  the  nature  of  public  books ;  but  it  was  not 
contended,  that  they  were  that  sort  of  public  document,  a  copy  of  which 
might  be  given  in  evidence,  like  a  parish  register  made  under  public 
authority.  The  two  documents  do  not,  therefore,  appear  to  me  of  a 
similar  nature ;  for  the  gaoler  is  not  required  by  law  to  keep  these 
prison  books,  but  they  are  only  kept  for  his  own  information  and  se- 
curity. We  do  not,  therefore,  think  this  case  governed  by  the  case 
of  The  King  v.  Aickles ;  but  we  are  of  opinion,  that  the  committitur 
ought  to  have  been  produced  to  establish  the  cause  of  the  conunitment, 
and  consequently  that  there  must  be  a  new  trial. 
Rule  absolute.''' 

73  Mr.  Justice  Peckham,  In  White  v.  United  States,  164  U.  S.  100,  17  Sup. 
Ct.  3S.  41  L.  Ed.  3G5  (ISOG):  "We  think  no  error  was  committed  by  the  trial 
r-ourt  lu  thus  rulinj,'.  It  was  not  ueccs.sury  tliut  a  statute  of  Alalnima  sliould 
provide  for  the  keeping  of  such  a  book.  A  jailor  of  a  county  jail  is  a  public 
officer,  and  the  book  kept  by  him  was  one  kept  by  him  in  his  capacity  as 
such  ofUcer  and  becau.se  he  was  required  so  to  do.  Whether  such  duty  was 
enjoined  upon  him  by  statute  or  by  his  suiwrior  oflicer  in  the  performance  of 
his  oHiclal  duty,  is  not  material.  So  ](>uk  as  he  was  discharging  his  imblic 
and  oUJcial  duty  in  keeping  the  book,  it  was  sudicient.     The  nature  of  the 


Sec.  2)  RECOGNIZED  EXCEPTIONS  621 

WALDRON  et  al.  v.  COOMBE. 
(Court  of  Common  Pleas,  ISIO.     3  Taunt.  1G».) 

This  was  an  action  brought  to  recover  the  loss  sustained  by  the 
plaintiff,  by  the  deterioration  of  some  kerseymeres  on  board  tiie  Earl 
Percy,  insured  by  a  policy  subscribed  by  the  defendant,  "at  and  from 
London  to  Rio  Janeiro."  The  plaintiff  averred  a  loss  by  perils  of  the 
sea.  The  defendant  pleaded  non  assumpsit,  and  paid  into  court  £50 
per  cent.  Upon  the  trial,  at  Guildhall,  at  the  sittings  in  this  term,  before 
Mansfield,  C.  J.,  the  plaintiff  proved,  that,  if  the  goods  had  not  been 
damaged,  the  market  would  have  afforded  a  profit  of  £15  per  cent.; 
that  the  goods  were  damaged,  apparently  by  seawater,  to  a  consider- 
able degree ;  the  witness  would  not  have  given  £30  per  cent,  for  them ; 
but  the' plaintiff  gave  no  other  evidence  of  the  manner  in  which  the 
damage  was  occasioned.  To  prove  the  amount  of  the  loss,  a  witness 
produced  a  certificate  from  the  British  vice-consul  there,  of  the  amount 
for  which  the  goods  were  there  sold,  being  £9  15s.  per  cent,  only,  of  the 
sum  insured;  and  the  same  witness  swore,  that,  by  the  law  of  the 
Brazils,  and  other  parts  of  South  America,  the  vice-consul  is  constituted 
general  agent  for  all  absent  owners  of  goods,  and  that  the  same  law- 
authorizes  and  compels  the  vice-consul  to  make  sale  of  all  the  dam- 
aged goods  of  all  absentees,  with  the  assistance  of  two  British  mer- 
chants as  assessors.  Mansfield,  C.  J.,  admitted  this  evidence,  although 
Best,  Serjt.,  for  the  defendant,  objected  to  it,  but  reserving  to  him 
liberty  to  move.''* 

Mansfield,  C.  J.  I  thought  at  the  trial  it  was  very  difficult  to 
bring  this  within  any  head  of  evidence.  It  was  somewhat  analogous 
to  the  proceedings  of  courts  and  other  public  functionaries:  but  I 
know  no  instances  of  such  as  this  being  received.  I  dare  say  it  would 
be  evidence  in  any  other  country.  It  came  nearest  to  the  case  of  judg- 
ments in  foreign  courts.  But  we  receive  judgments  under  the  seals  of 
the  courts.  The  vice-consul  is  no  judicial  ofBcer.  He  acts  under  a 
wise  regulation  to  prevent  the  improper  disposition  of  damaged  goods. 
They  are  put  into  warehouses  appropriated  to  them  by  government. 
The  vice-consul  must  preside  at  the  auction.  There  is  no  rule  in  the 
English  law  which  makes  his  certificate  evidence.  He  has  been  sup- 
posed to  be  an  agent,  and  he  is,  to  some  purposes.  So  is  an  auctioneer 
in  this  country;  nevertheless  his  certificate  is  not  evidence  in  a  court 
of  justice,  but  what  was  done  at  the  auction  must  be  proved.  The 
business  of  the  vice-consul  is  to  see  a  fair  sale.  It  is  going  much 
further  to  say  that  his  certificate  shall  bind  the  parties.     Any  body 

office  would  seem  to  require  it.  In  tliat  case  the  entries  are  competent  evi- 
dence.    1  Greenl.  Ev.  §§  483,  484." 

And  so  in  the  case  of  the  United  States  weather  record,  Evanston  v.  Gunn, 
99  U.  S.  660,  25  L.  Ed.  306  (1878). 

7  4  Statement  condensed. 


G22  HEARSAY  (Ch.  3 

present  might  have  proved  the  facts.     The  cliirograph  of  fines  here 
proves  itself,  but  the  endorsement  of  the  proclamation  of   the  fine 
must  be  proved  by  a  compared  copy  of  the  record. 
Rule  absolute  to  reduce  the  damages  to  £70  per  cent.'"' 


WIHEN  V.  LAW. 
(Court  of  King's  Bench,  1S21.     3  Starkie,  63.) 

The  question  was  as  to  the  age  of  the  defendant.  On  the  part  of 
the  defendant,  to  prove  his  infancy  at  a  particular  time,  the  register 
of  his  christening  was  produced,  from  which  it  appeared  that  he  was 
christened  in  the  year  1807 ;  but  the  entry  also  stated  that  he  was 
born  in  the  year  1799. 

BaylEy,  J.,  was  of  opinion,  that  the  entry  relating  to  the  time  of  his 
birth  was  not  evidence  of  the  fact ;  it  did  not  'appear  upon  whose 
information  the  entry  had  been  made,  and  the  clergyman  who  made 
the  entry  had  no  authority  to  make  inquiry  concerning  the  time  of 
birth,  or  to  make  any  entry  concerning  it  in  the  register. 

The  jury  found  for  the  plaintiff;  and  in  the  ensuing  term,  Marry- 
att  moved  for  a  new  trial,  contending  that  at  all  events,  the  entry  was 
evidence  to  confirm  the  statement  of  the  mother,  who  had  been  ex- 
amined as  a  witness  for  the  defendant  at  the  trial. 

But  THE  Court  were  of  opinion,  that  the  entry  was  not  evidence  to 
prove  the  age  of  the  party ;  it  was  nothing  more  than  something  told 
to  the  clergyman  at  the  time  of  the  christening,  concerning  which  he 
had  not  power  by  law  to  make  an  entry  in  the  register.  He  had  neither 
the  authority  nor  the  m^eans  of  making  an  entry.  If  it  had  appeared 
that  the  entry  had  been  made  by  the  direction  of  the  mother,  it  might, 
perhaps,  if  required,  have  been  read  in  evidence,  for  the  purpose  of 
confirming  her  testimony;  but  even  then  it  would  have  amounted  to 
nothing  more  than  a  mere  declaration  by  her  as  to  the  age  of  her  son, 
made  at.  a  time  when  there  was  no  motive  on  her  part  to  misrepresent 
his  age. 

Rule  refused.''' 

76  Official  certificates  are  provided  for  by  statute  in  quite  a  number  of 
cases;  e.  g.,  certilir-ntos  of  the  aclvnc)\vlodfj;nient  of  deeds,  ccrtilicates  of  tlie 
registry  of  deeds,  certificates  of  the  ijerrurmauce  of  tlie  marriage  ceremony, 
and  of  various  other  oflicial  acts. — Ed. 

TO  Mr.  Justice  Paxson,  in  Sitler  v.  Colir,  lO.'i  Pa.  577,  51  Am.  Rep.  207 
(1884):  "The  learned  judge  hold  that  the?  book  in  (luestion  was  a  church  reg- 
istry for  marriages,  deaths,  and  l)urials.  that  it  was  intended  to  l)e  kept,  and 
possibly  was  kept,  according  to  the  ret|uirements  of  the  Act  of  1800;  that  it 
would  be  evidence  to  show  Ibe  deaths  of  Mary  Eva  Zimmerman  and  Hiinnah 
r.ast,  but  that  for  the  other  i)uri)<)S('s  offered  it  was  incompetent.  Without 
discussing  the  character  of  the  Ixxik,  we  are  of  oiiinion  it  was  properly  re- 
jected. It  was  not  alleged  that  the  time  of  the  death  of  these  ladies  was  ma- 
terial to  the  issue,  on  the  contrary,  the  manifest  object  of  the  offer  was  to 


Sec.  2)  RECOGNIZED  EXCEPTIONS  623 

RICHARDSON  v.  MELLISH. 

(Court  of  Common  Pleas,  1824.     2  Bing.  229.) 

This  was  an  action  brought  to  recover  damages  for  the  breach  of 
an  agreement.  The  plaintiff  was  formerly  captain  of  the  ship  Minerva, 
which  had  been  chartered  by  the  East  India  Company  for  six  voyages 
to  India.  When  the  vessel  had  perform.ed  two  of  these  voyages,  the  de- 
fendant purchased  twelve-sixteenths  of  her,  and  having  a  nephew 
(Captain  Mills)  whom  he  wished  to  serve,  he  proposed  that  the  plain- 
tiff' should  give  up  the  command  of  the  Minerva  to  Captain  Mills.  In 
order  to  provide  the  plaintiff  a  compensation  for  this  sacrifice,  an 
agreement  was  entered  into,  by  which  it  was  stipulated,  that  the  plain- 
tiff should  resign  the  command  of  the  Minerva  to  Captain  Mills,  and 
should  receive  in  exchange  the  command  of  the  Marquess  of  Ely, 
another  vessel  belonging  to  the  defendant,  and  then  chartered  for  one 
voyage  by  the  East  India  Company. 

The  proof  given  at  the  trial  of  the  value  of  one  of  these  voyages  con- 
sisted in  the  testimony  of  several  captains,  who  described  it  as  being 
worth  from  £4000  to  £8000,  and  in  the  production  of  a  book  containing 
a  list  of  passengers,  made  by  the  captain,  and  deposited  in  the  India- 
house,  pursuant  to  the  act  of  53  G.  3,  passed  for  the  better  regulation 
of  passengers  by  India  vessels.  This  book  was  objected  to  at  the 
trial,  but  was  admitted  in  evidence  by  the  learned  judge.^^ 

Best,  C.  J.  *  *  *  I  come  now  to  the  next  question,  that  is,  as  to 
the  admissibility  of  evidence.  For  the  purpose  of  proving  the  damage, 
the  plaintiff  put  in  a  list  returned  by  a  captain  under  the  authority  of 
the  53  G.  3,  c.  155,  s.  15,  16.  It  is  contended,  that  that  paper  was  not 
evidence  against  third  parties.  I  am  decidedly  of  opinion  that  there  is 
no  foundation  for  that  objection.  This  is  a  public  paper  made  out  by 
a  public  officer,  under  a  sanction  and  responsibility  which  impel  him  to 
make  that  paper  out  accurately;  and  that  being  the  case,  it  is  admissible 
in  evidence  on  the  principle  on  which  the  sailing  instructions,  the  list  of 
convoy,  and  the  list  of  the  crew  of  a  ship  are  admissible.  But  it  may  be 
said,  Ay,  but  those  are  papers  which  come  from  government  officers: 
I  go  on, — but  the  books  of  the  bank  of  England  have  been  made  evi- 
dence ;   all  those  are  evidence  that  are  considered  as  public  papers,  made 

prove  that  Hannah  Bast  was  the  daughter  of  Conrad  Gehr  and  Anna  Maria, 
his  wife,  and  to  show  when  and  where  she  was  born.  This  burial  list  was 
competent  to  show  the  death  and  burial  of  these  ladies,  but  what  the  pastor 
put  down  in  the  book  as  to  their  parentage,  and  the  time  and  place  of  their 
birth,  was  incompetent,  for  the  plain  reason  that  it  was  no  part  of  his  duty 
to  make  such  entries.  Such  registers  are  not,  in  general,  evidence  of  any 
fact  not  required  to  be  recorded  in  them,  and  which  did  not  occur  in  the 
presence  of  the  registering  officer.     Phillips  on  Evidence,  vol.  II.  §  2S0." 

So  the  registry  is  not  admissible  to  prove  the  place  of  birth,  though  If  the 
child  were  verv  young  an  inference  might  be  warranted  that  it  was  born  in 
that  parish.     Rex  v.  North  Petherton,  5  B.  &  C.  508  (1826). 

''  Statement  condensed  and  part  of  opinion  omitted. 


624  HEARSAY  (Ch.  3 

out  by  persons  who  have  a  duty  to  the  public  to  perform,  and  whose 
duty  it  is  to  make  them  out  accurately.  On  account  of  that  duty  and 
responsibility,  credit  is  given  to  them.  These  papers  are  of  as  high 
autliority  as  any  of  those  I  have  referred  to  ;  higher  than  those  of  the 
books  of  the  bank  of  England,  the  hooks  at  Lloyd's,  or  the  lists  of 
convoy,  which  have  been  received  as  evidence.  These  are  papers 
which  tlie  captain  is  ordered  by  the  fifteenth  section  of  the  stat- 
ute, to  which  we  have  been  referred,  to  make  out  upon  oath,  which 
oath,  an  ofiicer  of  the  customs  is  authorized  to  administer :  for  what 
purpose  ?  for  the  purpose  of  informing  the  East  India  Company  (who. 
though  subjects  in  England,  are  great  sovereigns  in  India),  what 
kind  of  persons,  and  with  what  sort  of  arms  these  persons  are  go- 
ing to  settlements,  tlie  administration  of  the  affairs  of  which  is 
committed  to  them.  If  these  are  not  public  papers  made  with  a  view 
to  great  principles  of  public  policy,  I  am  at  a  loss  to  know  what  are 
public  papers.  If  so,  credit  must  be  given  to  all  papers  so  made :  con- 
sequently these  papers,  I  think,  were  properly  received  in  evi- 
dence. *  *  *  • 
Rule  discharged. 


BROWNING  V.  FLANAGIN. 
(Court  of  Errors  and  Appeals  of  New  Jersey,  1849.     22  N.  J.  Law,  5G7.) 

This  was  an  action  of  debt  for  an  escape,  brought  by  Flanagin 
against  Browning,  to  recover  the  debt,  interest,  and  costs  endorsed 
upon  a  capias  ad  satisfaciendum  alleged  to  have  been  issued  and  de- 
livered to  the  defendant  below  for  execution,  while  sheriff  of  the 
county  of  Gloucester. 

It  was  proved  on  the  trial,  by  the  former  clerk  of  the  county,  that 
there  is  now,  and  has  been  for  more  than  one  hundred  years  past,  kept 
in  the  office  of  the  clerk  of  Gloucester,  a  book  of  records,  called  the 
sealing  docket,  in  which  all  writs  returned  by  the  sheriff  were  entered, 
together  with  the  return  of  the  sheriff.  It  was  proved,  by  the  attor- 
ney of  the  plaintiff  below,  that  he  issued  a  pluries  ca.  sa.  in  the  suit 
of  Flanagin  v.  Champion,  and  placed  it  in  the  hands  of  Browning,  the 
defendant  below,  who  was  then  sheriff  of  Gloucester.  This  writ 
was  shown  to  be  lost  from  the  files  of  the  court.  And  an  entry  in  the 
sealing  docket  of  the  writ  and  return  was  offered  in  evidence  by  the 
plaintiff  below,  and  admitted  by  the  court,  to  the  admission  where- 
of the  defendant  below  excepted.  The  entry  was  as  follows :  "John 
Flanagin  v.  Federal  Champion,  second  pluries  ca.  sa.,  in  debt,  Jeffries 
att'y— 'Not  found.'     J.  P.  Browning,  Sheriff."  ^^ 

Caki'IC-N'TEr,  J.  At  the  trial  the  judgment  was  proved,  the  issuing 
of  the  writ  by  the  attorney,  &c.     The  writ,  after  search,  not  being 

T8  statement  condensed  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCErTIONS  625 

found  on  the  files,  and  sufficient  ground,  as  supposed,  having  been 
shown  to  let  in  secondary  evidence,  the  plaintiff  below  offered  to  prove 
its  contents  by  an  entry  in  a  book,  called  "a  sealing  docket,"  kept  in 
the  clerk's  office  of  the  county  of  Gloucester.  He  proved  that  a  book 
of  this  character  had  been  kept  in  that  office  from  before  the  revolu- 
tion, one  hundred  years,  or  more.  That  a  memorandum  of  all  writs 
issued  and  returned  were  entered  by  the  clerk  in  this  book.  If  is- 
sued by  the  clerk,  the  note,  being  a  copy  of  the  endorsement,  with 
the  number  of  the  writ  and  the  date  when  issued,  was  made  before 
delivery  to  the  sheriff;  and  his  return,  when  made,  was  also  copied 
into  the  book.  Writs  not  issued  by  the  clerk,  and  not  in  his  hands  till 
returned,  were  entered  at  the  end  of  the  other  writs  in  the  proper 
term,  but  without  date.  The  entry  in  question  was  in  the  handwrit- 
ing of  the  clerk,  without  date,  and  it  was  alleged,  by  the  counsel  of 
the  defendant  below,  out  of  the  usual  order  of  making  such  entries. 
The  then  clerk,  by  whom  the  entry  was  made,  was  not  produced  to 
prove  that  it  had  been  made  by  him  in  the  regular  course  of  duty  in 
his  office,  or  to  prove  any  other  circumstance  in  connection  with  it. 
He  had,  long  previous  to  the  trial,  left  the  state,  and  was  not  within 
reach  of  the  process  of  the  court.  The  first  exception  arises  from 
an  objection,  on  the  part  of  the  defendant  below,  to  the  reading  of 
this  entry,  as  any  proof  of  the  contents  of  the  writ  or  for  any  other 
purpose. 

If  a  record,  or  other  document  in  the  nature  of  a  record,  is  lost, 
after  a  proper  foundation  is  laid,  its  contents  may  be  proved,  like  any 
other  document,  by  proper  secondary  evidence.  No  objection  seems 
to  arise  from  the  fact,  that  a  mere  abstract  of  the  writ,  being  a  copy 
of  the  endorsement,  was  offered  as  evidence  of  the  contents  of  the 
writ,  though  undoubtedly  a  complete  copy  would  have  been  more 
satisfactory.  In  a  case  where  an  assignment  of  tolls  had  been  execut- 
ed, by  way  of  mortgage,  by  a  turnpike  company,  in  an  action  by  the 
personal  representative  of  the  mortgagee,  after  his  death,  it  was 
held  that  after  sufficient  proof  of  the  loss  of  the  mortgage,  entries 
in  a  book  of  the  company,  endorsed  "Mortgage  book,"  containing 
an  abstract  of  the  names  of  the  creditors,  the  amounts  of  their  se- 
curities, and  the  interest  due  upon  them,  w^as  good  secondary  evidence 
of  such  security.     Pardoe  v.  Price,  13  M.  &  W.  267. 

My  first  impressions  as  to  this  book,  were  to  regard  it,  not  in  the 
light  of  an  official  register  required  by  law,  but  as  a  mere  memoran- 
dum of  the  writs  issued  from,  and  returned  into  the  office.  If  kept  by 
the  clerk  merely  for  his  own  convenience  and  security,  and  not  be- 
cause required  by  statute,  or  necessary,  in  any  strict  sense,  from  the 
nature  of  the  office,  it  might,  under  some  circumstances,  be  used  in 
evidence,  but  upon  a  different  principle  than  as  offered  in  the  present 
instance.  It  would  have  been  admissible  only  as  an  entry,  made  at 
HiNT.Ev. — 40 


626  HEARSAT  (Ch.  3 

the  time,  according  to  the  established  practice  of  the  office,  by  one 
having  competent  knowledge  of,  and  no  interest  to  mistake  the  mat- 
ter recorded.  Such  entries  have  been  frequently  held  admissible,  when 
made  at  the  time  of  the  transaction  by  any  one  in  the  usual  and  reg- 
ular course  of  professional  or  other  duty,  but  only  when  aided  by 
collateral  proof.  If  the  person  by  whom  made  be  alive,  even  if  be- 
yond the  jurisdiction  of  the  court,  he  must  be  found,  and  his  testi- 
mony produced,  either  personally  or  by  deposition.  It  is  only  in  case 
of  his  death  that  such  entry  can  be  read  on  proof  of  the  handwrit- 
ing. 1  Greenl.  Ev.  §  115;  1  Stark.  Ev.  394,  396,  &c. ;  Poole  v.  Dicas, 
1  Bing.  N.  C.  649;  Welsh  v.  Barrett,  15  Mass.  380;  Nicholls  v.  Webb. 
8  Wheat.  326,  5  L.  Ed.  628 ;  Wilbur  v.  Selden,  6  Cow.  (N.  Y.)  162 ; 
Cooper  V.  Marsden,  1  Esp.  1. 

In  Massachusetts,  insanity  has  been  held  equivalent  to  death.  Un- 
ion Bank  v.  Knapp,  3  Pick.  96,  106,  15  Am.  Dec.  181.  Looking  at 
the  book  in  this  light,  I  felt  very  unwilling  to  relax  the  rule,  which  is 
settled  upon  sound  and  safe  principles. 

But  subsequent  examination  has  placed  the  book  in  a  very  differ- 
ent light.  An  entry  of  every  action  commenced  in  court,  and  of  the 
issuing  of  every  writ,  is  supposed  to  be  made;  and  so  of  the  return 
by  ministerial  officers,  of  duty  performed  under  each  writ.  Our  own 
statutes  give  the  clerk  fees  for  making  these  entries,  and  I  suppose 
they  are  in  fact  made  in  every  county  of  the  state  with  more  or  less 
accuracy,  according  to  the  intelligence  and  diligence  of  the  officer. 
The  original  practice  still  followed  in  some  counties,  was  to  make  such 
entries  in  the  minutes  of  the  court,  as  part  of  its  proceedings,  and 
ordinarily  at  the  close  of  each  term  to  which  the  w^its  were  respec- 
tively returned.  In  other  counties,  as  a  matter  of  convenience,  the 
entries,  in  regard  to  the  issuing  and  return  of  writs,  have  been  trans- 
ferred to  a  separate  book,  styled,  as  in  the  present  instance,  a  "seal- 
ing docket,"  which  thus  became  a  supplemental  book  of  minutes,  in 
which  so  much  of  the  proceedings  of  the  court  was  recorded.  In  this 
light,  it  is  rightly  to  be  considered  as  a  book  of  minutes,  in  which  a 
portion  of  the  proceedings  of  the  court  is  recorded;  and,  so  far  as 
regards  such  entries,  strictly  an  official  register.  As  such,  the  book 
from  which  the  entry  in  question  was  offered  on  the  trial,  was  proper- 
ly admitted  as  evidence  of  itself,  without  the  necessity  of  producing  the 
officer  who  made  the  entries,  or  sustaining  its  authenticity  by  his  oath. 
1  Greenl.  Ev.  §§  483,  484;  1  Stark.  Ev.  228,  243,  etc.  (Phil.  Ed.  1842). 
The  alleged  irregularity  in  regard  to  the  entry,  was  a  matter  for  the 
jury  below,  and  the  objection,  if  entitled  to  any  w^eight,  was  one  ad- 
dressed to  the  credit,  and  not  to  the  competency  of  the  book.     *     *     * 

Affirmed. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  G27 


HEGLER  V.  FAULKNER. 

(Supreme  Court  of  the  United  States,  1894.     153  U.  S.  109,  14  Sup.  Ct.  779, 

38  L.  Ed.  653.) 

The  plaintiit  Hegler  brought  ejectment  against  Faulkner  and  others 
to  recover  a  tract  of  land  in  the  state  of  Nebraska.  Plaintiff  claimed 
title  under  a  deed  from  an  Indian  named  George  Washington;  de- 
fendants claimed  under  a  later  deed  from  the  same  grantor.  The 
verdict  and  judgment  were  for  the  defendant.'^® 

]\Ir.  Justice  Shiras  delivered  tlie  opinion  of  the  court. 

The  plaintiff  contended,  in  the  court  below,  that  the  Indian  George 
Washington  was  of  full  age  on  April  16,  1859, — the  date  of  the  con- 
veyance to  Nuckolls, — or,  at  all  events,  so  represented  himself  to  be, 
and  tliat  Nuckolls  relied  upon  such  representations,  and  purchased 
and  paid  for  said  land  accordingly.  These  questions  of  fact  were  sub- 
mitted by  the  court  to  the  jury,  "and  found  by  them  in  favor  of  the  de- 
fendants. 

The  errors  assigned  are  to  the  action  of  the  court  in  rejecting  evi- 
dence offered  by  the  plaintiff,  and  in  refusing  instructions  asked  for 
by  him.  The  first  oft'er  was  that  of  an  exemplification  from  the  rec- 
ords of  the  Indian  department  of  instructions  given  to  one  Joseph 
L.  Sharp,  dated  May  14,  1856,  under  which  Sharp  acted  as  an  agent 
for  the  United  States  in  ascertaining  the  number  and  names  of  tlie 
half-breeds  entitled  to  participate  in  the  division  of  the  lands  granted 
by  the  treaty  of  Prairie  du  Chien.  Among  such  instructions  the 
agent  was  directed  to  prepare  "a  report  in  full,  to  embrace  a  list  con- 
taining names  of  all  appHcants,  arranged  by  tribes  and  families  and 
single  persons,  showing  names,  age,  sex,  relationship  to  the  tribe,  place 
of  residence,  who  are  orphans  or  wards."  This  was  followed  by  an 
offer  of  a  certified  copy  of  a  census  or  list  of  half-breeds  entitled  to 
lands,  bearing  the  heading  "Office  of  Indian  Affairs,"  dated  February 
4,  1858,  containing  the  name,  sex,  age,  degree  of  blood,  and  tribe  of 
certain  Indians.  Upon  this  list  was  the  name  of  George  Washing- 
ton, and  opposite  the  name  appeared  the  figures  "20,"  in  the  column 
headed  "Age."  The  purpose  of  these  offers  was  stated  to  be  to  show 
that  George  Washington  was  20  years  of  age  at  that  date  (February 
4,  1858),  and  that  he  was  therefore  of  full  age  when,  on  April  16, 
1859,  he  conveyed  the  land  allotted  to  him  to  Houston  Nuckolls.  The 
court  below  regarded  the  evidence  oft'ered  as  inadmissible  for  that 
purpose,  and  the  rejection  of  the  offers  is  the  subject  of  the  first  and 
second  assignments  of  error. 

As  leading  up  to  the  controlling  question,  namely,  the  age  of  the  half- 
breed  George  Washington,  the  offer  of  the  instructions  under  which 
the  agent  acted  in  procuring  information  for  his  report  would  seem 

7  9  Statement  condensed  and  part  of  opinion  omitted. 


628  HEARSAY  (Ch.  3 

to  be  unobjectionable,  but  its  rejection  would  not  constitute  reversible 
error  unless  the  offer  tliat  followed  was  admissible.  That  was  the 
offer  to  put  in  evidence  a  census  or  list  filed  in  the  office  of  Indian 
affairs,  containing  the  names  and  ages  of  half-breeds  who,  upon  tes- 
timony presented  to  that  office,  were  regarded  as  entitled  to  participate 
in  the  allotments  or  assignments  of  the  lands  awarded  by  the  treaty. 
If  the  latter  offer  was  not  a  proper  one,  then  tlie  rejection  of  the  pre- 
ceding offer  was  immaterial. 

Was,  then,  this  list  filed  in  the  Indian  department,  and  which,  or  a 
-^ '  copy  of  which,  had  been  sent  to  William  M.  Stark,  special  agent  to 
assign  or  allot  these  lands,  admissible  in  evidence  in  a  legal  contro- 
versy, to  prove  the  age  of  one  of  said  Indians? 

It  is  contended  on  behalf  of  the  plaintiff  in  error  that  this  list  is  in  the 
nature  of  a  finding  or  judgment  of  the  executive  department  of  the 
government  in  matters  committed  specially  to  the  president  by  con- 
gress ;  that  the  allotment  of  these  lands  to  the  half-breeds  was  express- 
ly devolved  upon  the  president  by  act  of  congress  (10  Stat.  332),  in 
order  to  carry  out  the  treaty ;  that  this  act  of  congress  was  one  mak- 
ing appropriations  for  the  Indian  department,  and  for  fulfilling  treaty 
stipulations ;  that  the  department,  under  the  directions  of  the  president, 
made  rules  and  regulations  to  enforce  this  provision  of  law,  and  did 
enforce  it. 

It  is,  indeed,  true  that  the  president  speaks  and  acts  through  the 
heads  of  the  several  departments  in  relation  to  subjects  tliat  pertain 
to  their  respective  duties,  and  that  the  allotment  of  these  lands  by  the 
Indian  department  must  be  considered  as  made  by  the  president  in 
pursuance  of  the  terms  of  the  act  of  congress  and  of  the  treaty.  And 
it  may  be  admitted  that  the  decision  of  the  special  Indian  agent,  in 
identifying  the  Indian  half-breeds  entitled  to  participate,  and  in  al- 
lotting the  portion  of  each,  would,  in  the  absence  of  fraud,  be  con- 
clusive.   Wilcox  v.  Jackson,  13  Pet.  498-511,  10  L.  Ed.  264. 

Conclusiveness  is  a  characteristic  of  the  judgment  of  every  tribunal 
acting  judicially,  while  acting  within  the  sphere  of  its  jurisdiction, 
where  no  appellate  tribunal  is  created.  But  such  conclusiveness  is  re- 
stricted to  those  questions  which  are  directly  submitted  for  decision. 
In  the  case  in  hand,  doubtless  the  identity  of  the  half-breed  George 
Washington,  and  his  right  to  receive  the  land  in  question  as  his  share 
of  the  lands  appropriated  by  the  treaty,  were  finally  found.  But  nei- 
ther the  treaty,  the  act  of  congress,  nor  the  instructions  of  the  depart- 
ment contemplated  any  special  inquiry  into  the  ages  of  the  Indians. 
It  is  true  that  in  the  letter  of  instructions  the  agent  was  directed  to 
report  as  well  the  age  as  the  sex  and  tribal  relations  of  the  claimants. 
But  this  was  merely  to  enable  the  agent,  when  he  came  to  allot  the 
lands,  to  identify  the  persons  entitled  to  participate.  When  the  allot- 
ment was  completed,  and  was  followed,  first  by  a  certificate,  and  final- 
ly by  a  patent,  the  purposes  of  the  inquiry  were  fulfilled,  and  the  list 
used  to  aid  the  government  functionaries  in  the  task  of  allotting  the 


Sec.  2)  RECOGNIZED  EXCEPTIONS  629 

lands  cannot  be  regarded  as  a  record  to  be  resorted  to  afterwards,  in 
disputes  between  other  parties,  to  prove  the  age  of  the  Indians.  No 
provision  was  made,  in  either  the  act  of  congress  or  the  rules  and 
regulations  of  the  Indian  department,  to  preserve  the  list  as  a  muniment 
of  title,  much  less  as  a  public  record  admissible  to  prove  merely  inci- 
dental recitals  based  on  hearsay.  Such  a  list  does  not  come  within  the 
rule  which  permits,  for  some  purposes,  the  use  of  "official  registers  or 
records  kept  by  persons  in  public  office  to  write  down  particular  trans- 
actions occurring  in  the  course  of  their  public  duties  or  under  their  par- 
ticular observation."  1  Greenl.  Ev.  §  483.  "It  must  be  remembered! 
that  official  registers  are  not,  in  general,  evidence  of  any  fact  not  re-| 
quired  to  be  recorded  in  them,  and  which  did  not  occur  in  the  presence' 
of  the  registering  officer.  Thus,  a  parish  register  is  evidence  only  of 
the  time  of  a  marriage  and  of  its  celebration  de  facto,  for  these  are 
the  only  facts  necessarily  within  tlie  knowledge  of  the  party  making 
the  entr}''.  So  a  register  of  baptism,  taken  by  itself,  is  evidence  only 
of  that  fact.  Neither  is  the  mention  of  the  child's  age  in  the  register 
of  christenings  proof  of  the  day  of  its  birth,  to  support  a  plea  of  in- 
fancy."   Id.  §  493. 

In  Insurance  Co.  v.  Tisdale,  91  U.  S.  238,  23  L.  Ed.  314,«''  where  the 
right  of  action  depended  on  the  death  of  a  third  person,  it  was  held 
that  letters  of  administration  upon  the  estate  of  such  person,  granted 
by  the  proper  probate  court  in  a  proceeding  to  which  the  defendant 
was  a  stranger,  afforded  no  legal  evidence  of  such  death ;  and  it  was 
said :  "The  only  ground  for  the  admission  of  the  letters  of  adminis- 
tration is  that  granting  them  is  a  judicial  act;  but  a  judgment  is  not 
evidence  of  any  matter  to  be  inferred  by  argument  therefrom,  or  which 
comes  collaterally  in  question,  or  is  incidentally  cognizable," — citing 
the  Duchess  of  Kingston's  Case,  11  State  Tr.  261,  and  many  others. 

In  Insurance  Co.  v.  Schwenk,  94  U.  S.  593,  24  L.  Ed.  294,  it  was 
held  that  an  entry  in  the  minute  book  of  a  lodge  of  Odd  Fellows,  of 
which  the  deceased  was  a  member,  made  prior  to  the  issue  of  a  policy, 
and  showing  his  age  as  recorded  by  the  secretary  of  the  lodge  in  the 
usual  manner  of  keeping  its  records,  was  not  admissible' as  evidence  of 
such  age. 

We  do  not  deem  it  necessary  to  discuss  this  question  at  greater  length. 
Our  conclusion  is  that  the  court  below  did  not  err  in  excluding  the 
list  offered.  It  was  not  an  official  record,  intended  as  a  mode  of  pre- 
serving the  recollection  of  facts,  nor  was  it  based  upon  the  personal 
knowledge  of  the  party  making  the  entry.  It  was  mere  hear- 
say.    *     *     * 

Affirmed.®^ 

80  See  the  opinion  for  an  extensive  review  of  the  authorities  on  the  point 
Involved. 

8  1  See  same  result  in  Sturla  v.  Freccia,  L.  R.  5  App.  Cas.  623  (1S80),  liold- 
ing  tliat  a  report  on  an  application  for  au  appoiutment  to  office  was  not  ad- 
missible to  prove  the  age  and  place  of  birth  of  the  applitaut.     In  that  case 


630  HEARSAY  (Ch.  3 


MURRAY  et  al.  v.  SUPREME  LODGE,  NEW  ENGLAND  ORDER 

OF  PROTECTION. 

(Supreme  Court  of  Errors  of  Connecticut,  1902.     74  Conn.  715,  52  Atl.  722.) 

Action  to  recover  the  amount  of  a  benefit-fund  certificate,  brought  to 
the  Superior  Court  in  New  Haven  County  and  tried  to  the  jury  before 
Roraback,  J.;  verdict  and  judgment  for  the  plaintiff  for  $L144  dam- 
ages, and  appealed  by  the  defendant  for  alleged  errors  in  the  rulings 
and  charge  of  the  court. 

Torrance,  C.  J.^^  The  certificate  sued  upon  was  issued  by  the 
defendant  to  Ellen  T.  IMurray  in  May,  1898.  In  it  the  defendant 
agreed,  among  other  things,  that  Ellen  T.  Murray  should  be  entitled 
"to  participate  in  the  relief  and  benefit  fund  of  the  order  to  the  amount 
of  one  thousand  dollars,"  which  sum  at  her  death  the  defendant  in  said 
certificate  agreed  to  pay  to  the  plaintiffs,  daughters  of  Ellen  T.  Murray. 
This  agreement  to  pay  was  made  upon  certain  express  conditions, 
one  of  which  was  that  statements  made  by  Ellen  T.  Murray  in  her  ap- 
plication for  membership  were  true.  On  the  trial  it  was  conceded  that 
no  person  over  50  years  of  age  could  lawfully  become  a  benefit  member 
of  the  defendant  society ;  and  the  main  defense  was  that  Ellen  T.  Mur- 
ray, when  she  joined  the  defendant  society,  in  May,  1898,  was  over 
50  years  old,  and  that  she  falsely  stated  the  date  of  her  birth  in  her  ap- 
plication as  of  March  4,  1849,  when  she  knew  that  it  was  of  a  much 
earlier  date.  The  parties  were  at  issue  upon  this  question  as  to  the 
age  of  said  Ellen  T.  Murray,  and  as  to  whether  her  statement  of  the 
date  of  her  birth  in  her  application  for  membership  was  true. 

In  proof  of  the  age  of  Ellen  T.  Murray  at  the  time  of  her  application 
for  membership  in  the  defendant  society,  the  defendant  offered  in  evi- 
dence certified  copies  of  the  following  documents  from  the  records 
of  the  registrar  of  vital  statistics  of  New  Haven:  (1)  The  application 
made  by  Patrick  Murray,  the  prospective  husband  of  said  Ellen,  in 
July,  1865,  to  the  registrar,  for  a  marriage  license  between  himself  and 
Ellen :  (2)  the  license  issued  upon  said  application ;  (3)  the  certificate 
of  the  celebrant  of  the  marriage  of  said  parties,  indorsed  on  said  certif- 
icate of  license.  In  the  application  for  the  license  the  age  of  Ellen 
was  stated  to  be  22  years.  In  the  other  writings  her  age  was  not  stat- 
ed. The  plaintiffs  objected  to  the  admission  of  the  application  for  li- 
cense "as  irrelevant,  immaterial,  incompetent,  and  hearsay,"  and  the 
court  excluded  it,  but  ruled  that  the  other  writings  were  admissible. 
The  defendant  also,  for  the  purpose  of  proving  the  age  of  Ellen  when 

L#or(l  Blackburn  appears  to  have  laid  undue  .stress  on  ttie  fact  that  the  report 
was  not  intended  for  the  u.se  of  the  .t;i'iioral  public. 

That  the  United  States  census  report  is  admissible  to  prove  age,  see  Priddy 
V.  Boyce,  201  Mo.  .'50'),  OD  S.  W.  10r,r),  0  L.  It.  A.  (N.  S.)  71S,  110  Am.  St.  Rep. 
762,  9  Ann.  Cas.  874  (1!K)«!).  For  a  contrary  view  ns  to  a  local  census,  see 
Campbell  v.  Kverbart,  i:i9  N.  C.  SO.'i,  52  S.  E.  201  (1905). 

82  Part  of  oiiiiiioii  omittT'd. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  631 

she  became  a  member  of  the  society,  offered  in  evidence  the  record  of 
said  marriage  in  the  books  of  the  registrar,  as  made  up  from  the  docu- 
ments above  mentioned,  in  which  record  the  age  of  Ellen  was  stated 
to  be  22  years.  To  this  the  plaintiffs  objected,  "as  it  appeared  from  the 
cross-examination  of  the  registrar  that  the  record  contained,  at  most 
nothing  more  than"  what  was  contained  in  the  aforesaid  documents, 
and  "that  so  far  as  the  originals  were  admissible  the  same  were  al- 
ready in  evidence,  and  that  so  far  as  the  originals  were  not  admissible" 
the  record  of  them  would  not  be  admissible.  The  court  sustained  the 
objection.  For  a  like  purpose  the  defendant  off'ered  in  evidewce  duly 
certified  copies  from  the  registrar's  records  of  returns  of  births  made 
to  him  of  children  born  to  said  Ellen,  by  the  physicians"  who  attended 
her,  as  required  by  law,  in  which  her  age  at  the  time  of  such  birth  was 
stated.  This  evidence,  also,  the  court,  on  objection  of  the  plaintiffs, 
excluded.  Whether  these  several  rulings  were  correct  or  not  is  the 
principal  question  in  the  case. 

From  a  very  early  period  our  law  has  provided  for  the  record  of 
births,  deaths,  and  marriages  in  some  way  by  some  public  official.  The 
first  act  of  this  kind  seems  to  have  been  passed  in  1664  (Revision  1808, 
p.  652,  note  1),  and  ever  since  that  time  our  statute  book  has  contained 
provisions,  more  or  less  specific,  looking  to  the  making  and  preservation 
of  such  records.  During  the  period^covered  by  the  documents  offered 
in  evidence  in  the  present  case,  the;  duty  to  make  and  preserve  such 
records  was  imposed  upon  a  public  official  called  a  "registrar,"  elected 
by  the  municipality,  and  sworn  to  faithfully  perform  the  duties  of  his 
office.  One  of  his  duties  was  to  "ascertain,  as  accurately  as  he  can,  by 
actual  inquiry,  and  in  tlie  manner  prescribed  by  law,  all  the  births,  mar- 
riages and  deaths  occurring"  in  the  municipality,  and  to  make  a  record 
of  the  same,  "in  such  form  and  with  such  particulars  relating  to  such 
births,  marriages  and  deaths,  as  shall  be  prescribed  by  law."  Among 
other  things,  his  record  of  births  was  required  to  state  the  age  of  the 
child's  parents ;  and  his  record  of  marriage  was,  among  other  things, 
required  to  state  the  age  of  each  of  the  parties  to  such  marriage.  It 
was  made  the  duty  of  the  physician  attending  a  woman  in  childbirth 
to  furnish  to  the  registrar  a  certificate  stating  among  other  things,  the 
age  of  the  mother  of  the  child  at  the  time  of  such  birth;  and  it  was 
made  the  duty  of  the  party  applying  for  a  marriage  license  to  give 
the  registrar  information  respecting  the  age  of  each  of  the  parties.  See 
Revision  1866,  tit.  13,  c.  1,  §  1.  Under  the  provisions  of  section  1089 
of  the  General  Statutes  of  1888,  these  records  of  the  registrar  can  be 
proved  by  a  copy  thereof  certified  by  him.  It  thus  appears  that  the 
age  of  Ellen  T.  Murray  at  the  time  of  her  marriage  and  at  the  time 
of  the  birth  of  her  children  was  a  fact  which  the  law  made  it  the  duty 
of  the  registrar  to  ascertain,  and  to  make  and  keep  a  record  of  the 
fact  so  ascertained.  The  record  thus  made  was  a  public  record,  made 
by  a  public  official,  of  ?.  fact  which  the  law  required  him  to  find  and 
record,  and   the   record  was  open  to  public  inspection.     The  record 


532  HEARSAY  (Cll. 


thus  made  of  this  fact  the  defendant  offered  in  evidence,  both  in  the 
shape  of  the  record  itself,  and  of  a  duly  certified  copy  thereof ;  and 
the  court  excluded  it  on  the  ground,  substantially,  that  it  was  hearsay 
evidence. 

Now,  unquestionably,  the  evidence  offered  and  excluded  was  hear- 
say  evidence,  for  it  was  a  statement  made  extrajudicially  by  one  not  un- 
der oatli,  and  not  subject  to  cross-examination,  and  it  was  offered  in 
proof  of  one  of  the  facts  stated  in  it,  to  wit,  the  age  of  Mrs.  Murray. 
Statements  so  made  are  generally  obnoxious  to  the  hearsay  rule,  but  to 
that  rule  there  are  many  exceptions  as  well  established  as  the  rule 
itself,  and  among  them  is  one  admitting  statements  made  by  public 
officials  in  a  public  record  made  for  public  use  pursuant  to  law.  The 
books  of  the  registrar,  kept  according  to  law,  constitute  a  public  official 
register;  and  the  statements  contained  therein,  when  relevant,  are  ad- 
missible in  evidence  as  a  clear  exception  to  the  hearsay  rule.  The  nec- 
essity for  the  existence  of  such  an  exception  is  found  "in  the  practically 
unendurable  inconvenience  of  summoning  public  officers  from  their 
posts  on  the  innumerable  occasions  when  their  official  doings  or  rec- 
ords are  to  be  proved  in  litigation,"  and  the  general  trustworthiness 
of  such  evidence  is  found  in  the  circumstances  under  which  the  state- 
ments are  made.  1  Greenl.  Ev.  (16th  Ed.)  §§  162m,  484-^86;  Sturla 
V.  Freccia,  5  App.  Cas.  623 ;  Evanston  v.  Gunn,  99  U.  S.  660,  25  L.  Ed. 
306 ;  Gushing  v.  Railroad  Co.,  143  Mass.  78,  9  N.  E.  22 ;  Enfield  v. 
Ellington,  67  Conn.  459,  462,  34  Atl.  818;  Hennessy  v.  Insurance  Co., 
74  Conn.  699,  52  Atl.  490.  The  evidence  offered  and  excluded  in  the 
case  at  bar  comes  clearly  within  this  exception  to  the  hearsay  rule,  and 
was  admissible  in  proof  of  the  age  of  Mrs.  Murray  at  tlie  time  of 
her  marriage,  and  at  the  dates  when  her  children  were  born.  1  Greenl. 
Ev.  (16th  Ed.)  §  493.  It  was  not,  of  course,  conclusive,  nor  was  it 
offered  as  such ;  but  it  was  admissible  for  what  it  was  worth,  and  the 
court  erred  in  excluding  it.  *  *  * 
New  trial  granted. 


GRAGG  v.  LEARNED. 

(Supreme  Judicial  Court  of  Massachusetts,  1872.    109  Mass.  1G7.) 

Writ  of  entry  to  recover  land  in  Brighton.  At  the  trial  in  this  court, 
before  Wells,  J.,  the  tenant  offered  in  evidence  an  office  copy  of  an 
instrument  purporting  to  be  a  deed  of  the  demanded  premises  from 
the  demandant  to  one  Miller;  and  it  was  proved  that  the  original 
never  was  in  the  tenant's  possession.  This  document,  which,  if  duly 
delivered,  was  a  valid  deed,  ended  thus: 

"In  witness  whereof,  I  have  hereunto  put  my  hand  and  seal  this 
day,  March  the  twenty-fifth,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-seven.  Samuel  Gragg.     [Seal.] 

"In  presence  of  F.  Milliard." 


Sec.  2)  RECOGNIZED   EXCEPTIONS  633 

It  purported  to  be  duly  acknowledged,  and  bore  a  certificate  that 
It  had  been  recorded.  The  demandant  objected  to  the  admission  of 
the  instrument  without  further  evidence  of  its  delivery  than  what  ap- 
peared upon  its  face.  But  the  judge  admitted  it,  and  instructed  the 
jury  that  they  would  be  authorized  to  infer  a  delivery  from  the  facts 
in  regard  to  the  instrument  which  thus  appeared  on  the  record.  The 
jury  returned  a  verdict  for  the  tenant  and  the  demandant  alleged  ex- 
ceptions. 

Gray,  J.  By  the  law  of  this  Commonwealth,  a  copy  from  the  regis- 
try of  a  deed  not  made  to  either  party  to  the  action,  or  presumed  to 
be  in  the  custody  of  either,  is  sufficient  evidence  of  the  execution  and 
contents  of  the  conveyance,  without  calling  the  subscribing  witnesses 
or  offering  any  other  proof.  Eaton  v.  Campbell,  7  Pick.  10;  Sam- 
uels V.  Borrowscale,  104  Mass.  207,  209 ;  Stockwell  v.  Silloway,  105 
Mass.  517.  The  dictum  of  Chief  Justice  Shaw  in  Powers  v.  Russell, 
13  Pick.  69,  75,  (upon  which  the  demandant  relies,)  that  this  rule  is 
founded  on  the  "presumption  of  law,  arising  from  the  common  at- 
testation of  the  witnesses,  in  their  certificate,  that  it  was  signed,  sealed 
and  delivered,"  is  at  variance  with  the  statement  of  the  reason  of  the 
rule  by  Chief  Justice  Shaw  himself  in  Stetson  v.  Sullivan,  2  Cush. 
494,  498,  and  by  other  judges  before  and  since,  which  is,  that  our  stat- 
utes allow  no  deed  to  be  recorded  until  it  has  been  acknowledged  by 
the  grantor,  or  proved  by  subscribing  witnesses  before  a  magistrate. 
Hathaway  v.  Spooner,  9  Pick.  23,  26;  Ward  v.  Fuller,  15  Pick.  185, 
188 ;  Thacher  v.  Phinney,  7  Allen,  146,  149.  It  was  decided  in  Dole 
V.  Thurlow,  12  Mete.  157,  in  which  also  the  opinion  was  delivered  by 
Chief  Justice  Shaw,  that  it  was  not  essential  to  the  validity  of  a  deed, 
that  it  should  have  any  subscribing  witnesses ;  and  in  Thacher  v.  Phin- 
ney, already  cited,  that  a  registry  copy,  offered  by  the  demandant,  of 
a  deed  to  the  tenant's  grantor,  was  sufficient  evidence  of  the  convey- 
ance thereby  made  although  it  disclosed  the  fact  that  the  deed  had 
no  subscribing  witnesses.  In  none  of  the  cases  in  which  such  a  copy 
has  been  admitted  in  evidence  has  it  been  suggested  that  any  further 
proof  of  dehvery  was  necessary,  when  it  did  not  appear  that  the 
deed  has  remained  in  the  possession  of  the  register  or  had  been  de- 
livered back  to  the  grantor.  It  follows  that  in  the  present  case  the 
copy  from  the  registry  was  rightly  admitted  as  prima  facie  evidence 
of  the  delivery  as  well  as  of  the  execution  of  the  deed. 

Exceptions  overruled.®^ 

«3  See  the  statutes  of  the  several  states,  providing  for  the  acknowledgment 
and  registration  of  deeds. 


634  HEARSAY  (Ch.  3 

PEOPLE  V.  CHARLIE  LEE. 

(Supreme  Court  of  California,  1900.    128  Cal.  330,  GO  Pac.  S54.) 

Britt,  C.     The  defendant,  a  Chinese,  was  accused  in  this  case  of 
the  crime  of  forgery,  committed  by  uttering,  etc.,  with  fraudulent  in- 
tent, a  paper  writing  which  purported  to  be  a  check  for  a  sum  of  mon- 
ey, dated  February  3,  1898,  drawn  on  a  certain  bank  of  San  Francisco, 
bearing  the  signature  "J.  P-  Colhn,"  payable  to  the  order  of  defend- 
ant, and  by  him  indorsed,  which  check,  it  is  charged,  was  fictitious; 
no  such  person  as  J.  P.  Collin  being  in  existence,  as  defendant  well 
knew.     At  the  trial,  which  resulted  in  the  conviction  of  defendant, 
there  was  evidence  that  he  passed  the  check  to  the  complaining  wit- 
ness, and  obtained  from  the  latter  a  payment  of  money  on  account 
thereof  at  the  city  of  Oakland,  in  Alameda  county,  on  February  9, 
1898;    that  defendant  was  arrested  for  the  offense  on  the  same  day, 
and  thereupon  claimed  that  he  had  received  the  check  two  days  pre- 
viously from  one  Hing  Lee,  who  lived  (defendant  said)  in  Santa  Bar- 
bara county,  and  was  there  in  the  employ  of  a  person  named  Collins. 
The  district  attorney  then  offered  in  evidence  a  subpoena  issued  out  of 
the  police  court  of  the  city  of  Oakland  on  February  11,  1898,  directed 
to  "].  P.  Collins,  Santa  Barbara,"  requiring  his  attendance  as  a  wit- 
ness before  said  police  court  on  February  17,  1898,  in  a  proceeding 
which  we  assume  to  have  been  the  preliminary  examination  of  the  de- 
fendant on  the  present  charge.     Together  with  the  subpoena  the  dis- 
trict attorney  offered  also,  the  return  of  the  sheriff  indorsed  thereon, 
dated  February  15,  1898,  setting  forth  that  he  received  such  subpoena 
on  February  14,  1898,  and,  after  diligent  search  and  inquiry,  was  "un- 
able to  find  J.  P.  Collins  in  the  county  of  Santa  Barbara."    Defendant 
objected  to  the  admission  of  this  paper  on  various  grounds,  not  neces- 
sary to  be  here  set  out.     He  waived  the  objection,  if  such  he  had  on 
the  ground  that  the  subpoena  was  issued  from  the  police  court,  and 
agreed  that  it  might  be  regarded  as  issued  from  the  superior  court, 
where  the  trial  was  in  progress.     The  court  overruled  the  objections 
made,  and  held,  in  effect,  that  the  subpoena  and  return  were  competent 
evidence  to  prove  the  nonexistence  of  the  person  whose  name  appeared 
to  be  subscribed  to  the  alleged  fictitious  check. 

The  return  of  the  sheriff  upon  process  is  declared  by  statute  to 
be  prima  facie  evidence  of  the  facts  in  such  return  stated.  Pol.  Code, 
§  4178;  St.  1897,  p.  480.  But  this  must  be  held  to  mean  that  the 
return  is  prima  facie  evidence  when  the  question  under  investigation 
is  of  a  character  which  renders  that  mode  of  proof  appropriate.  Thus, 
to  take  some  negative  illustrations,  in  proceedings  for  divorce,  resi- 
dence of  the  plaintiff  in  the  county  where  the  action  is  brought  is  essen- 
tial to  the  maintenance  of  the  action.  Civ.  Code,  §  128.  On  an  issue 
of  residence  raised  by  the  pleadings  in  such  an  action,  we  suppose  no 
one  would  claim  that  the  sheriff's  return  on  a  subpccna  for  the  attend- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  635 

ance  of  the  plaintiff  as  a  witness  would  be  competent  evidence  to  prove 
or  disprove  the  fact  of  residence.  In  an  action  against  a  corporation, 
the  summons  may  be  served  on  the  president  of  the  corporation,  and 
the  sheriff  serving  the  process  must  make  return  of  it  according  to  the 
fact.  Code  Civ.  Proc.  §§  411,  415.  The  sheriff's  certificate  that  he 
made  service  by  delivering  the  proper  copies  to  a  specified  person,  de- 
scribed as  president  of  the  defendant  corporation,  is  prima  facie  evi- 
dence, for  the  purpose  of  establishing  the  fact  of  service  on  the  cor- 
poration, that  the  individual  named  was  in  fact  such  president.  But 
suppose  the  action  involved,  let  us  say,  some  issue,  whether  the  cor- 
poration was  bound  by  some  act  of  such  individual  as  its  president; 
it  would  hardly  be  contended  that  the  return  on  the  summons  could  be 
competent  evidence  at  the  trial  to  establish  his  official  status. 

The  case  here  is  but  Httle  different  in  point  of  principle  from  the 
cases  instanced.  The  return  of  the  subpoena  that  J-  P.  Collins,  wanted 
as  a  witness,  could  not,  after  diligent  search,  be  found  in  Santa  Barbara 
county,  was  prima  facie  evidence  upon  an  issue  to  which  the  simple 
fact  returned  might  have  been  relevant, — some  question  which  directly 
involves  a  right  or  liability  or  consequence  resulting  from  the  official 
act  which  the  return  purports  to  describe  (see  Stanton  v.  Hodges,  6 
Vt.  64,  66), — as  whether  the  officer  had  performed  his  duty  in  a  prop- 
er manner,  or  whether  the  trial  ought  to  be  postponed  because  of 
the  absence  of  the  witness,  or  whether  his  testimony  previously  taken 
in  the  form  of  deposition,  if  such  had  been  the  fact,  might  be  received 
in  evidence  (People  v.  Reilly,  106  Cal.  648,  40  Pac.  13).  But  the  ques- 
tion whether  such  a  person  as  J.  P.  Colhn  or  J.  P.  Collins  had  existence 
in  Santa  Barbara  county  or  elsewhere  at  the  date  of  the  check  was  not 
one  which  the  sheriff  was  required  to  officially  ascertain  or  declare. 
It  is  illustrated  only  inferentially,  and  by  very  remote  inference  at  that, 
from  the  facts  stated  in  the  return.  It  is  an  issue  in  no  way  depend- 
ent upon  or  connected  with  the  discharge  of  the  sheriff's  duty  in  serv- 
ing or  attempting  to  serve  the  subpoena.  It  is  therefore  to  be  proved  in 
the  ordinary  way  by  testimony  of  sworn  witnesses  subject  to  cross- 
examination  by  defendant,  and  not  by  official  certificate.  The  admis- 
sion of  the  subpoena  and  return  in  evidence  was  material  error.  Com- 
pare People  V.  Plvler,  126  Cal.  379,  58  Pac.  904;  Same  v.  Eppinger, 
105  Cal.  36,  38  Pac.  538. 

Defendant  has  made  no  point  on  the  circumstance  that  the  subpoena 
was  issued  for  "J-  P-  Collins,"  a  name  not  identical  with  "J-  P-  Collin," 
and  we  have  not  considered  whether  that  fact  should  influence  the  de- 
cision. Some  other  matters  are  assigned  for  error.  They  are  of  little 
importance,  and  will  probably  not  occur  on  another  trial.  The  judg- 
ment and  order  denying  a  new  trial  should  be  reversed. 

We  concur:     Haynes,  C. ;   Gray,  C. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion,  the 
judgment  and  order  denying  a  new  trial  are  reversed. 


636  HEARSAY  (Ch.  3 


JETNA  LIFE  INS.  CO.  v.  MILWARD. 

(Court  of  Appeals  of  Kentucky,  1904.    118  Ky.  71G,  82  S.  W.  364,  68  L.  E.  A, 

285,  4  Anu.  Cas.  1092.) 

O'Rear,  J.^*  This  is  an  appeal  from  a  judgment  for  $5,000  in 
favor  of  the  appellee  (plaintiff  below),  as  the  designated  beneficiary  in 
a  policy  insuring  her  husband,  Charles  S.  Milward,  against  accidental 
death.  The  defense,  as  made  by  the  answer,  consists  of  a  denial  that 
the  death  was  the  result  of  an  accident,  and  a  claim  that  it  was  due  to 
suicide.  The  principal  points  of  complaint  presented  on  this  appeal 
are  that  the  verdict  was  unauthorized  by  the  evidence,  that  the  petition 
was  insufficient,  and  that  competent  evidence  on  appellant's  behalf  was 
rejected  by  the  trial  court.     *     *     * 

On  the  morning  of  the  death  of  the  insured,  the  coroner  of  Fayette 
county  impaneled  a  jury  to  inquire  into  its  cause.  Evidence  was  heard, 
and  the  premises  examined  by  the  jury,  five  of  whom  signed  and  re- 
turned a  verdict  that  the  body  examined  by  them  was  that  of  Charles 
S.  Milward,  who  came  to  his  death  from  a  pistol  shot  wound  through 
the  brain,  the  pistol  being  fired  by  his  own  hand.  One  of  the  jury 
refused  to  join  in  the  verdict.  Appellant  offered  the  record  of  the 
coroner's  inquest  as  evidence  on  its  behalf  in  this  trial.  It  was  re- 
jected by  the  trial  court,  of  which  appellant  complains. 

We  are  of  opinion  that  the  record  and  the  finding  of  the  coroner's 
jury  were  irrelevant  as  evidence.  While  the  coroner's  inquest  is  a 
public  function,  made  on  behalf  of  tlie  state,  and  while  a  record  of  it 
is  required  to  be  made  and  kept,  it  cannot,  on  any  well-grounded  prin- 
ciple of  American  common  law,  become  evidence  in  another  inquiry 
or  suit  as  to  the  cause  of  the  death  investigated.  The  business  of  this 
tribunal  is  by  statute  to  collect  promptly  the  facts  concerning  deaths 
which  the  coroner  has  reason  to  believe  were  the  result  of  crime.  Like 
the  grand  jury,  it  projects  an  ex  parte  investigation  of  supposed  or 
alleged  crime  resulting  in  homicide,  for  the  purpose  of  aiding  in  the 
administration  of  the  criminal  laws  of  the  state.  The  accused  is  neither 
represented,  nor  has  the  right  to  be,  at  the  inquiry.  For  even  better 
reasons,  other  persons  who  have  property  interests  dependent  upon 
the  cause  of  the  death  would  not  be  allowed  to  participate  in  the  hear- 
ing before  the  coroner's  jury,  with  a  view  to  establishing  rights  by 
the  verdict.  That  tribunal  is  unprovided  with  much  of  the  necessary 
machinery  for  conducting  such  inquiries.  It  would,  it  seems  to  us,  be 
abhorrent  to  the  principles  of  the  common  law,  as  administered  in  this 
country,  that  one  not  so  represented  should  be  bound  by  the  finding 
of  the  coroner's  jury,  his  rights  concluded  without  a  trial  at  which 
he  could  be  heard — a  trial  "behind  his  back,"  as  has  been  said.  If  such 
verdict  be  admissible  as  evidence,  it  follows  from  its  very  nature  that 
it  might  alone  constitute  proof  of  the  main  fact,  and  of  every  esson- 

•  ♦  Part  of  opinion  is  omitted- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  637 

tial  fact  in  issue.  It  might,  for  example,  not  only  show  the  fact  of 
death  by  violent  and  external  means  within  a  date  covered  by  the 
policy,  but  find  also  that  it  was  accidental  or  was  not  accidental.  In 
either  event,  a  property  right  of  one  or  the  other  of  the  litigants  would 
be  determined  by  a  proceeding  of  which  no  notice  was  given  to  him, 
upon  testimony  not  preserved,  and  may  be  wholly  incompetent  or  in- 
sufficient, and  without  an  opportunity  to  cross-examine  the  witnesses 
whose  oaths  established  it.  Thus  he  would  be  deprived  of  his  prop- 
erty without  "a  day  in  court,"  for  the  first  verdict  might  be  enough, 
if  the  only  evidence  ofifered  or  obtainable,  and  the  second  one  would 
be  merely  a  formal  ratification.  If  the  verdict  of  the  coroner's  jury 
is  not  binding  upon  the  world  as  a  proceeding  in  rem,  it  could  not 
be  admitted  as  evidence  on  any  other  ground.  It  might  be  proof  of 
the  fact  of  the  death  of  the  person  examined,  and  of  the  identity  of 
the  body.    Further  than  that  we  are  not  prepared  to  admit  it. 

In  England  the  coroner  is  not  only  a  judicial  officer,  as  well  as 
ministerial,  but  his  court  is  a  court  of  record.  His  jurisdiction  there 
extended  far  beyond  the  possibilities  here.  The  importance  and  use 
of  that  court  may  have  justified  its  rank  in  England,  and  their  accred- 
iting its  judgments  as  those  of  courts  of  record  in  proceedings  in  rem 
are  usually  accorded.  Anciently  when  the  goods  of  a  suicide  passed 
to  the  crown,  and  when  the  property  of  one  attainted  escheated  to 
the  lord,  and  when  death  resulted  from  misfortune  or  negligence  (un- 
til the  statute  of  10  Vict.  62),  the  deodand  was  forfeited  to  the  town- 
ship for  use  of  the  king's  almoner,  the  coroner's  verdict  and  the  es- 
cheator's  inquest  were  treated  as  judicial  findings  in  rem,  and  were 
conclusive  evidence  as  such,  although  they  later  came,  mainly  through 
the  intervention  of  Lord  Hale,  to  be  admitted  as  rebuttable  evidence 
only.  Starkie,  Ev.  289,  404.  Our  system  of  inquests  was  not  de- 
signed for  such  purpose.  Neither  the  ancient  prerogatives  of  these 
functionaries,  nor  the  presumptions  attendant  upon  their  findings,  can 
have  a  place  in  our  jurisprudence.®' 

Able  counsel  present  the  argument  in  behalf  of  the  admissibility  of 
this  evidence  with  much  earnestness,  and  have  cited  a  number  of  cases 
from  other  jurisdictions  in  support  of  their  contention.  In  JEtna.  Life 
Ins.  Co.  V.  Kaiser,  115  Kyt  539,  74  S.  W.  203,  24  Ky.  Law  Rep.  2454, 
in  disposing  of  an  offer  to  introduce  the  coroner's  inquest  as  evidence 
on  the  trial  against  the  insurance  company  on  the  policy,  the  court  said : 
"We  are  clearly  of  opinion  that  this  was  incompetent,  and  was  properly 
rejected."  As  that  opinion  did  not  cite  or  discuss  the  authorities,  it 
is  assumed  in  argument  that  it  was  adopted  not  after  mature  consid- 
eration of  the  question.  The  leading  case  in  America  of  the  class  re- 
Hed  on  by  appellant  is  United  States  Life  Ins.  Co.  v.  Vocke,  129  111. 

85  That  under  the  modern  English  rule  the  coroner's  inquest  is  not  admit-. I 
ted  to  pTove  the  cause  of  death,  see  Bird  v.  Keep,  [1918]  2  K,  B.  D.  692,  re-  \\ 
viewing  a  large  number  of  the  later  cases. 


638  HEARSAY  (Ch.  3 

S57,  22  N.  E.  467,  6  L.  R.  A.  65.  In  that  case  the  coroner's  jury  had 
found  tliat  the  insured  had  come  to  his  death  by  a  pistol  shot  fired  by 
his  own  hand,  while  laboring  under  a  fit  of  temporary  insanity.  Al- 
though a  copy  of  the  inquest  was  furnished  to  the  insurance  company 
by  the  beneficiary  in  the  proof  of  death,  the  court  elected  to  ignore 
that  fact,  and  proceeded  to  a  discussion  and  decision  of  the  more  diffi- 
cult proposition,  whether '  the  inquest  was  not  competent  as  original 
evidence  of  the  manner  in  which  the  assured  had  died.  The  opinion 
cites  a  number  of  English  cases  and  text-writers  and  English  statutes 
concerning  the  jurisdiction  of  the  coroner,  and  the  effect  of  verdicts 
rendered  in  his  court.  It  was  declared  that  this  ancient  office  was 
judicial  as  well  as  ministerial,  and  so  recognized  by  parliamentary  acts, 
from  wliich  it  was  said  the  Illinois  statute  creating  the  ofBce  was  not 
substantially  different.  From  the  similarity  of  the  statutes,  which  the 
court  held  to  be  but  declaratory  of  the  common  law,  it  was  decided  to 
apply  tlie  English  doctrine  as  to  the  nature  of  the  inquest.     *     *     * 

The  Supreme  Court  of  Colorado,  in  Germania  Ins.  Co.  v.  Ross- 
Lewin,  24  Colo.  43,  51  Pac.  488,  65  Am.  St.  Rep.  215,  holds  to  the 
contrary  doctrine — that  which  is  applied  in  this  state.  The  Vocke 
Case,  supra,  Pyle  v.  Pyle,  158  111.  289,  41  N.  E.  999,  following  it,  and 
the  California  case  rested  upon  it,  are  analyzed  and  rejected.  As 
showing  the  impolicy  of  the  old  English  rule  if  attempted  to  be  applied 
to  insurance  cases,  when  suicide  was  a  controlling  question,  that  court 
reasoned  thus :  "In  case  of  death  under  suspicious  circumstances,  or 
resulting  from  accident,  tlie  rule  permitting  inquisitions  to  be  used  in 
evidence  would  result  in  a  race  and  scramble  to  secure  a  favorable 
coroner's  verdict,  that  would  influence,  and  perhaps  control,  in  case 
suit  should  be  instituted  against  life  insurance  companies  upon  poli- 
cies of  insurance,  and  in  case  of  accidents  occurring  as  the  result  of 
negligence  on  the  part  of  corporations  operating  railways,  street  car 
lines,  mining  for  coal,  the  precious  metals,  etc.  Law-writers  of  late 
have  frequently  animadverted  upon  the  carelessness  with  which  such 
inquests  are  frequently  conducted,  and  to  allow  inquisitions  to  be  used 
in  a  suit  between  private  parties  upon  a  cause  of  action  growing  out  of 
the  death  of  the  deceased,  as  in  this  case,  would  be  to  introduce  an  ele- 
ment of  uncertainty  into  the  practice  which  we  think  would  be  contrary 
to  public  policy,  and  pernicious  in  the  extreme;  and  for  these  rea- 
sons we  conclude,  upon  careful  consideration,  that  the  safer  and  better 
rule  is  to  exclude  such  inquisitions."  Citing  State  v.  County  Com'rs,  54 
Md.  426;  Goldschmidt  v.  Mutual  Life  Ins.  Co.,  102  N.  Y.  486,  7  N.  E. 
408.     *     *     * 

Affirmed.^' 

8  8  For  the  contrary  view,  see  Foster  v.  Slioppard,  2.')!=!  Til.  164,  101  N.  E. 
411,  45  L.  It.  A.  (.V.  S.)  107,  Ann.  C,:\s.  191  Hi,  572  (lUi:'.).  lUit  see  Peoria 
Cordaue  Co.  v.  Industrial  lioard  of  Illinois,  2S-1  111.  90.  119  N.  E.  9;)(;,  L.  K.  A. 
19ISK,  S21i  (1918),  to  the  effect  that  the  verdict  of  the  coromn-'s  jury  is  not 
adniissihle  to  prove  that  an  injury  which  caused  the  death  of  an  employe 


Sec.  2)  •  RECOGNIZED   EXCEPTIONS  C39 


MILLER  V.  NORTHERN  PAC.  RY.  CO. 

(Supreme  Court  of  North  Dakota,  190S.     18  N.  D.  19,  118  N.  W.  344,  19  Ann. 

Cas.  1215.) 

FiSK,  J.^^  This  is  an  appeal  from  a  judg'ment  of  the  district  court 
of  Eddy  county  in  defendant's  favor  rendered  pursuant  to  a  verdict  di- 
rected by  the  court. 

The  action  was  brought  to  recover  damages  from  defendant,  as  a 
common  carrier  of  freight,  for  alleged  negligence  in  transporting  a  cer- 
tain car  of  flax  belonging  to  plaintiff  from  Barlow,  in  this  state,  to  Du- 
luth,  Minn.,  whereby  it  is  claimed  that  a  certain  quantity  of  such  flax 
was  lost  in  transit.  The  car  was  consigned  to  Crumpton  &  Crumpton, 
commission  brokers  at  West  Superior,  Wis.,  and  in  due  course  the 
same  was  sold  by  them  at  Duluth  and  a  return  of  the  proceeds  made 
to  plaintiff,  which  returns  were  based  upon  weights  taken  by  the  state 
weighmaster's  department  of  the  state  of  Minnesota  at  Duluth.  Plain- 
tiff", to  prove  his  cause  of  action,  relied  solely  upon  the  discrepancy  be- 
tween the  w-eights  taken  at  Barlow  at  the  time  the  flax  was  loaded  into 
the  car  and  the  weights  as  shown  by  the  records  in  the  office  of  the 
state  weighmaster  aforesaid;  no  evidence  being  offered  to  show  leak- 
ages in  the  car  or  that  it  had  been  tampered  with  while  in  transit.  Ap- 
pellant reUes  for  a  reversal  of  the  judgment  upon  alleged  errors  of  the 
trial  court  in  rejecting  testimony  offered  by  him  to  show  the  records 
made  in  the  offlce  of  the  state  weighmaster  pertaining  to  the  car  of 
flax  in  question.  This  testimony  consisted  of  a  deposition  of  one  J. 
B.  Sutphin,  state  weighmaster  at  Duluth,  who  testified  that,  according 
to  his  records,  the  car  was  weighed  by  one  Bagley  at  the  time  of  its  ar- 
rival, who  was  at  that  time  a  properly  qualified  assistant  weigher  in  his 
department,  and  that  such  assistant  made  a  record  in  writing  of  the 
date,  description,  and  weight  of  the  car  and  turned  the  same  into  his 
office  in  regular  course  of  business  pursuant  to  his  official  duty,  w'here 
it  had -been  at  all  times  since.  The  witness  had  no  personal  knowledge 
of  such  weighing  and  did  not  know  of  his  own  knowledge  whether  it 
was  correctly  weighed  or  not.  All  he  knew  about  it  was  that  it  was 
weighed  in  accordance  with  the  system  in  vogue  in  his  department  and 
in  accordance  with  the  statutes  of  Minnesota  in  force  at  that  time  ap- 
plicable thereto.     *     *     ♦ 

was  received  in  the  course  of  his  employment,  because  such  an  Inquiry  was 
beyond  the  scope  of  the  coroner's  statutory  authority. 

Compare  Morris  &  Co.  v.  Industrial  Board  of  Illinois,  284  111.  67,  119  N.  E. 
944,  L.  R.  A.  1918E,  919  (1918),  annotated,  supporting  the  admissibility  of  a 
verdict  of  the  coroner's  jury  to  prove  that  the  cause  of  death  was  a  fall  on  a 
stairway  on  the  premises  of  the  employer. 

The  modern  cases  on  this  point  are  collected  in  the  note  to  Krogh  v.  Mod- 
ern Brotherhood  of  America,  45  L.  li.  A.  (X.  S.)  404  (1913). 

S7  Part  of  opinion  of  Fisk,  J.,  the  opinion  on  rehearing,  and  the  dissenthig 
opinion  of  Spalding,  J.,  are  omitted. 


640  HEARSAY  (Ch.  3 

Under  the  provisions  of  the  ]\nnnesota  law  in  question,  we  find  noth- 
ing in  express  terms  making  such  record  prima  facie  evidence  of  the 
truth  of  the  matters  therein  set  forth  in  the  courts  of  Minnesota;  but 
this  law  does  provide  that  such  weighmaster  and  his  assistants  shall,  ^ 
upon  demand,  give  to  any  person  or  persons  having  weighing  done  a 
certificate  under  his  hand  and  seal  showing  the  amount  of  each  weight, 
number  of  car,  etc.,  and  that  such  certificate  shall  be  admitted  in  all  ac- 
tions, etc.,  as  prima  facie  evidence  of  the  facts  therein  contained.  The 
Code  of  this  state  (section  7298.  Rev.  Codes  1905)  provides  that :  "En- 
tries in  public  or  other  official  books  or  records,  made  in  the  perform- 
ance of  his  duty  by  a  public  officer  of  this  state,  or  by  another  person 
in  the  performance  of  a  duty  specially  enjoined  by  law  are  prima  facie 
evidence  of  the  facts  stated  therein."  And  section  7299  of  the  same 
Code  provides  that :  "An  entry  made  by  an  officer,  or  board  of  officers, 
or  under  the  direction  and  in  the  presence  of  either  in  the  course  of 
official  duty  is  prima  facie  evidence  of  tlie  facts  stated  in  such  entry." 

It  is  contended  by  counsel  for  appellant  that  the  latter  section  refers 
to  official  records  generally,  and  is  not  confined  to  those  made  by  offi- 
cers in  this  state.  In  this  we  think  he  is  in  error.  It  is  apparent  to  our 
minds  that  it  was  the  legislative  intent  that  these  sections  should  apply 
only  to  domestic  records.  There  is  therefore  no  express  statute  in  force 
in  this  state  making  foreign  records,  such  as  the  one  in  question,  prima 
facie  or  any  evidence  per  se  of  the  facts  therein  stated ;  but  the  sections 
above  quoted,  in  our  opinion,  are  not  exclusive  in  their  provisions,  and, 
as  we  construe  them,  tliere  is  nothing  therein  contained  which  restricts 
or  limits  the  courts  to  domestic  records  in  giving  effect  to  them,  when 
properly  proved  as  prima  facie  evidence.  While  the  question  is  not 
free  from  doubt,  and  while  there  seems  to  be  a  dearth  of  authorities  up- 
on the  precise  point  here  involved,  we  are  of  the  opinion  that  the  tes- 
timony was  admissible  and  should  have  been  received.  We  think  it 
comes  within  the  well-recognized  exception  to  the  rule  excluding  hear- 
say testimony  in  cases  of  public  records  made  by  public  officers  in  the 
discharge  of  their  official  duties.  We  know  of  no  good  reason  why 
this  exception  should  be  limited  to  public  records  in  the  state  where 
kept,  and  no  such  restriction  of  the  rule  seems  to  have  been  recognized 
by  the  authorities. 

The  ground  upon  which  this  exception  rests  is  well  stated  in  Wig- 
more  on  Ev.  vol.  3,  ,§§  1630-1683;  1  Greenleaf  on  Ev.  (16th  Ed.)  vol. 
1^  §§  483,  484,  493 :  1  Whart.  Ev.  §§  639,  347 ;  9  Am.  &  Eng.  Enc. 
I^w  ('2d  Ed.)  882-883 ;  17  Cyc.  306,  and  cases  cited.  In  paragraph  2, 
^  1633,  of  Prof.  Wigmore's  valuable  work  on  Evidence,  it  is  stated: 
"The  subjective  influence  of  the  official  duty  being  the  essential  justify- 
ing circumstance,  it  follows  that  an  official  statement  by  a  foreign  of- 
ficer is  equally  admissible  with  one  made  by  a  domestic  officer.  That 
the  duty  is  not  recognized  by  tlie  domestic  law  is  immaterial ;  it  exists 
for  the  foreign  officer;  and  so  far  as  it  exists,  it  affords  an  equally 
official  sanction.     This  application  of  the  principle,  though  plain,  has 


Sec.  2)  RECOGNIZED   EXCEPTIONS  641 

rarely  been  drawn  in  question."  And  again,  in  section  ]652,  the  same 
author  states:  "That  an  official  statement  authorized  to  be  made  is 
the  statement  of  a  foreign  officer  does  not  make  it  any  the  less  admis- 
sible. The  essential  thing  is  the  authority  of  the  officer,  and  a  foreign 
authority  equally  satisfies  the  principle.  There  is,  in  the  United  States, 
the  additional  consideration  that,  under  the  federal  Constitution  (ar- 
ticle 4,  §  1)  and  the  federal  Revised  Statutes  (section  906  [U.  S.  Comp. 
St.  1901,  p.  677]),  the  courts  of  each  state  are  required  to  give  full 
faith  and  credit  to  the  records  of  other  states,  and  this  may  well  be 
held  to  imply  that  recognition  should  be  given  (not  merely  as  a  matter 
of  comity,  but  as  a  matter  of  legal  right)  to  an  official  authority  created 
by  the  laws  of  another  state  for  its  domestic  recording  officers." 
*     *     * 

Affirmed  (on  the  ground  that  the  error  was  harmless).** 


VII.  Reputation 

^A)  In  Regard  to  Rights  in  Land 

MOREWOOD  V.  WOOD. 

(Court  of  King's  Beucli,  1791.    14  East,  327,  note.) 

Trespass  for  breaking  and  entering  the  plaintiff's  close  called  Swan- 
wick  Common,  in  the  parish  of  Alfreton,  in  the  county  of  Derby,  and 
digging  stones  therein,  and  carrying  them  away,  &c.  The  defendant 
pleaded,  that  there  are  certain  wastes  or  commons  lying  open  to  one 
another,  one  called  Swanwick  Common,  being  the  close  in  which,  &c. 
the  other  called  Swanwick  Green,  in  Alfreton,  &c.  and  that  he  was  seiz- 
ed in  fee  of  a  messuage  and  lands  in  Alfreton,  in  right  of  which  he 
prescribed  for  the  liberty  of  digging  for  and  carrying  away  all  neces- 
sary flags  and  stones  in  Swanwick  Common,  and  in  Swanwick  Green, 
for' the  repair  of  his  houses,  fences,  &c.  The  plaintiff  replied,  that  he 
was  lord  of  the  manor  of  Alfreton,  and  that  the  defendant  of  his  own 
wrong  committed  the  trespass.  The  defendant,  in  his  rejoinder,  in- 
sisted on  his  prescriptive  right  as  stated  in  the  plea;  on  which  issue 
was  joined.  At  the  trial  before  Hotham,  B.  at  Derby  assizes,  the  de- 
fendant called  many  witnesses,  who  proved  that,  for  between  60  and 
70  years  past,  he  and  those  from  whom  he  claimed  had  been  in  the  con- 
stant exercise  of  the  right  stated  in  his  plea ;   in  many  instances  to  the 

S8  See,  also,  Oakes  v.  United  States,  174  U.  S.  778,  19  Sup.  Ct.  864,  43  I^ 
Ed.  1109  (1899),  admitting  a  record  of  the  Confederate  States,  preserved  Id 
the  War  Department  of  the  United  States. 

Compare  Morrissey  v.  Wiggins  Ferry  Co..  47  Mo.  521  (1871)  excluding  a  for 
eigu  church  register  of  l)aptisms,  though  the  Missouri  statute  made  similar 
local  registers  admissible. 
HiNT.Ev. — 41 


642  HEARSAY  (Ch.  3 

Knowledge  of  the  lord,  who  had  threatened  to  bring  actions,  and  been 
dared  to  do  so  by  the  defendant's  ancestors,  who  insisted  on  their  right. 
On  the  otlier  hand,  the  plaintiff  produced  a  presentment  in  1717,  of  the 
fieeholders  of  the  court  baron  of  the  manor  of  Alfreton,  of  which  the 
plaintiff  is  lord,  and  which  presentment  was  signed  by  one  Robert 
Wood,  the  foreman,  and  others ;  which  name  of  Robert  Wood  was 
proved  to  tally  with  the  subscription  (1)  to  the  will  of  Robert  Wood, 
':he  grandfather  from  whom  the  defendant  claimed,  and  which  will  was 
produced  from  the  registry.  One  of  the  items  in  that  presentment  was, 
— "If  any  person  gets  stone  without  leave  of  the  lord  of  the  manor, 
we  pain  him  10^."  The  plaintiff  also  called  another  witness  to  prove 
that,  in  a  conversation  with  the  defendant's  uncle,  from  whom  the  de- 
fendant also  claimed,  the  uncle  had  admitted  that  the  lord  of  the  manor 
had  the  right,  and  he  would  not  be  beholden  to  him  for  the  stone.  The 
jury  found  for  the  defendant.  Thus  much  appeared  on  the  Judge's 
report,  on  a  motion  for  a  new  trial.  But  the  plaintiff's  counsel  stated 
further,  (which  was  admitted  by  the  other  side,  and  so  taken  by  the 
Court,)  that  the  learned  Judge  had  rejected  other  evidence  which  they 
had  tendered,  and  for  which  alone  the  new  trial  was  moved  for,  viz. 

1st,  Other  presentments  of  a  similar  nature  to  the  one  received  in 
evidence ;  but  to  which  no  subscription  could  be  proved  by  any  person 
from  whom  the  defendant  claimed ;  this  was  offered  as  evidence  of 
reputation. 

2d,  General  parol  evidence  of  reputation,  that  none  but  the  lord  had  a 
right  to  dig  stone,  &c.  on  the  locus  in  ciuo. 

Lord  Kenyon,  C.  J.  (after  the  argument).*®  The  evidence  given 
by  the  defendant  of  an  usage  of  about  70  years  is  extremely  strong  in 
his  favour;  and  the  only  evidence  to  weigh  against  it  is  that  of  the  pre- 
sentment signed  by  Robert  Wood :  but  that  is  not  necessarily  inconsist- 
ent wnth  it.  The  lord  might  have  the  general  right,  and  yet  a  particular 
tenement  have  a  prescriptive  right  also.  On  that  ground,  therefore, 
there  is  no  pretence  for  impeaching  the  verdict.  With  respect  to  the 
other  question  raised  respecting  the  rejection  of  general  evidence  of 
reputation ;  it  is  involved  in  great  dispute ;  and  one  is  apt  to  imbibe 
prejudices  from  the  opinion  one  has  always  heard  inculcated.  Upon 
the  Oxford  circuit  which  I  went,  such  evidence  was  never  received; 
and  I  cannot  help  thinking  that  that  practice  is  best  supported  by  princi- 
ple. Evidence  of  reputation  upon  general  points  is  receivable,  because 
all  mankind  being  interested  therein,  it  is  natural  to  suppose  that  they 
may  be  conversant  with  the  subjects,  and  that  they  should  discourse  to- 
gether about  them,  having  all  the  same  means  of  information.  But 
how  can  this  apply  to  private  titles,  either  with  regard  to  particular  cus- 
toms or  private  prescriptions?     liow  is  it  possible  for  strangers  "^  to 

80  opinions  of  Ashhurst  and  (Jro-so,  JJ.,  oniiftcd. 

»o  Piirke,  B.,  in  Crenso  v.  Darrett,  1  C,  M.  &  K.  919  (1835):  "  ♦  •  •  The 
objc'f'tion  now  tnlccn  i.s,  tliat  tlu;  ans\vc>r  to  tiu;  ninlii  article  is  not  adniissiliio, 
uol  because  reijutatiou  on  such  a  tjuljject  is  not  evidouce,  it  bi'ing  a  qucstiou 


Sec.  2)  RECOGNIZED   EXCEPTIONS  643 

know  any  thing  of  what  concerns  only  these  private  titles?  I  barely, 
however,  throw  out  these  liints  as  the  ground  of  my  present  opinion; 
laying  in  my  claim  to  change  that  opinion  if  I  should  hear  any  thing 
which  shakes  it. 

BuLLER,  J.  I  have  already  mentioned  what  has  been  the  general 
practice  on  the  Oxford  and  on  the  Western  circuit ;  and  as  there  are 
two  judges  from  each  of  those  circuits  in  court,  it  is  hardly  likely  for 
us  to  agree  upon  the  general  point.  But  thus  far  I  agree  with  my  lord 
and  my  brother  Ashhurst,  that  in  no  case  ought  evidence  of  reputation 
to  be  received,  except  a  foundation  be  first  laid  by  other  evidence  of  the 
right.  Now  here  there  was  no  foundation,  or  at  least  a  very  slight 
one,  in  comparison  to  the  evidence  given  by  the  defendant.  But  I  can- 
not agree  that  it  ought  not  to  be  received  at  all.  It  was  settled  that  it 
ought  in  the  cases  cited  in  argument,  and  also  in  many  other  instances 
which  relate  merely  to  private  titles :  in  one  in  particular,  as  to  whether 
such  a  piece  of  ground  is  parcel  of  one  close  or  another.  So  again  in 
the  case  of  pedigrees.  But  as  to  this  particular  case,  the  evidence  is 
very  strong  with  the  defendant.  It  was  not  proved  that  the  estate  in 
question  was  in  the  possession  of  the  defendant's  grandfather  at  the 
time  he  signed  the  presentment  which  was  read  in  evidence;  and  even 
if  that  were  made  out,  all  the  evidence  since  for  above  60  years  is  the 
other  way.  The  defendant's  ancestors  have  all  that  time  taken  stone  ir 
defiance  of  the  presentment,  and  in  the  face  of  the  lord  himself,  who 
was  dared  to  bring  an  action  for  it.  Now,  supposing  all  the  evidence  of 
reputation  had  been  received,  I  think  it  ought  to  have  weighed  so  slight- 
ly witli  the  jury,  that  the  court  ought  not  to  grant  a  new  trial.  For  I  do 
not  know  that,  because  evidence  which  ought  to  have  been  received 
was  rejected,  therefore  the  court  are  bound  to  grant  a  new  trial,  if  they 
see  clearly  that  the  verdict  is  right,  notwithstanding  such  evidence  had 
been  admitted. 

Rule  discharged. 

of  the  custom  of  mining  in  a  particular  district,  but  because  it  comes  from 
the  customary  tenants,  who  in  that  cliaracter  have  nothing  to  do  witli  the 
mines ;  and  it  is  insisted,  that  it  is  a  requisite  qualification  of  hearsay  evi- 
dence on  such  a  subject,  that  it  ought  to  be  derived  from  those  who  are  them- 
selves concerned  in  mining,  or  receiving  the  dues  of  the  mines.  That  hear- 
say evidence  on  some  such  subjects  cannot  be  received,  unless  with  the  quali- 
fication that  it  comes  from  persons  who  have  a  special  interest  to  inquire,  is 
clear.  Thus,  in  cases  of  pedigree,  it  must  be  derived  from  relatives  by  blood, 
or  from  the  husband,  with  respect  to  his  wife's  relationship:  it  is  not  ad- 
missible, if  it  proceeds  from  servants  or  friends.  Johnson  v.  Lawson,  2  Bing. 
86  [1824].  And  in  this  description  of  hearsay  evidence  the  line  is  clearly 
defined.  So,  in  cases  of  rights  or  customs,  which  are  not,  properly  speaking, 
public,  but  of  a  general  nature,  and  concern  a  multitude  of  persons,  as  ques- 
tions with  respect  to  boundaries  and  customs  of  particular  districts,  though 
the  rule  is  not  so  clearly  laid  down,  it  seems  that  hearsay  evidence  is  no* 
admissible,  imless  it  is  derived  from  persons  conversant  with  the  ueighbo'ir 
hood." 


644  HEARSAY  (Ch.  3 

ROE  dem.  BEEBEE  v.  PARKER. 
(Court  of  King's  Bench,  1792.     5  Term  R.  26.) 

In  this  ejectment  to  recover  certain  customary  lands  in  the  manor  of 
Sedgley,  which  was  tried  at  the  last  assizes  for  Stafford  before  Perryn, 
B.,  the  lessor  of  the  plaintiff  claimed  under  a  custom  of  the  manor  for 
the  youngest  kinswoman  to  inherit  in  default  of  issue,  and  of  broth- 
ers, sisters,  nephews  and  nieces,  of  the  person  last  seised.  The  plaintiff 
off'ered  in  evidence  an  entry  in  the  court  rolls  of  the  manor,  stating 
what  the  custom  was :  but  the  defendant's  counsel  objected  that  such 
evidence  of  the  custom  ought  not  to  be  received,  until  instances  had 
been  proved  of  such  a  mode  of  descent  having  taken  place.  On  the 
other  side  it  was  alleged,  that  the  contrary  had  been  held  in  a  case  in 
this  court,  wherein  such  evidence  had  been  determined  to  be  admissible ; 
and  under  this  impression  the  cause  proceeded,  and  the  evidence  was 
given  as  follows ;     *     *     * 

It  appeared  that  some  of  the  ancient  court  rolls  were  lost;  but  no 
instance  in  the  court  rolls  was  produced  of  any  admission  beyond 
sisters,  nor  was  any  instance  of  the  youngest  kinswoman  taking  proved 
by  living  witnesses.  It  appeared  however  that,  if  the  lessor  of  the 
plaintiff  were  not  entitled,  another  branch  of  that  family,  who  did  not 
dispute  the  lessor's  right,  had  a  better  title  than  the  defendant.  The 
jury  found  a  verdict  for  the  plaintiff. 

A  rule  having  been  obtained,  calling  on  the  plaintiff  to  shew  cause 
why  the  verdict  should  not  be  set  aside,  on  the  ground  that  the  evi- 
dence of  the  presentment  of  such  a  custom  on  the  court  rolls,  by  the 
homage,  was  not  of  itself  sufficient  to  establish  the  custom,  in  as  much 
as  no  instance  was  produced  of  its  having  been  put  in  ure ;  which  it 
was  contended  was  the  true  principle  on  which  the  determination  of 
Denn  dem.  Goodwin  v.  Spray  [1  Term  R.  466]  was  founded; 

Bearcroft,  Bower,  Leycester,  and  Simpson,  shewed  cause  against  the 
rule.  *  *  *  But  with  respect  to  the  mode  of  proof  the  court  rolls 
of  a  manor  were  not  only  good  evidence  of  the  custom,  but  the  best 
evidence;  because  the  highest  credit  was  given  to  the  publicity  and 
authenticity  of  the  records  of  the  manor.  Then  in  cither  respect,  it 
was  the  same  whether  the  homage  presented  what  the  custom  was 
generally,  or  whether  particular  instances  were  stated  by  them. 
*  *  *  If  this  kind  of  proof  uncontradicted  were  not  sufficient  evi- 
dence of  itself  it  would  scarcely  be  possible  in  cases  like  the  present, 
where  the  rolls  were  lost,  to  prove  every  particular  sort  of  descent  by 
instances ;  for  it  could  scarcely  happen  that  living  witnesses  could 
speak  from  their  own  knowledge  °^  to  all  of  them."* 

81  Le  Blanc,  J.,  In  Wooks  v.  Sparko,  1  M.  &  S.  079  (1813):  "•  •  •  The 
question  arose  upon  a  claim  of  a  prescriptive  rlgbt  of  comiiion;    such  a  right 

»^  Statement  condensed  and  opinion  of  Grose,  J.,  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  645 

Lord  Kenyon,  C.  J.  Considering  the  real  merits  of  this  case,  a 
more  unrighteous  attempt  was  never  made  in  a  court  of  justice.  For  it 
is  admitted  that  if  the  plaintiff  be  not  entitled  to  recover  under  the 
custom,  on  which  she  relied,  another  relation  is ;  and  the  general 
question  is  whether  the  defendant,  who  is  a  wrong-doer,  shall  pre- 
vent either  of  these  parties'  recovering ;  that  alone  would  be  a  suffi- 
cient reason  for  our  refusing  to  grant  a  new  trial.  However  I  dis- 
claim deciding  upon  that  ground ;  for  the  objection,  which  has  been 
made  to  the  evidence  of  the  plaintiff's  claim,  tends  to  shake  one  of  the 
fundamental  rules  of  law.  I  admit  that  the  custom  of  one  manor 
cannot  be  extended,  by  analogy,  to  another:  but  the  mode  of  descent, 
under  which  a  party  claims,  must  be  established  by  proof ;  and  the 
question  here  is  whether  or  not  there  were  any  evidence  of  the  cus- 
tom, upon  which  the  plaintiff's  claim  was  founded:  The  custom  is 
clearly  defined  in  the  paper  writing  produced  from  the  Rolls ;  and, 
without  referring  to  the  strict  rules  of  law,  let  us  consider  the  authen- 
ticity of  this  document  on  principles  of  plain  common  sense.  Near  a 
century  and  an  half  ago  the  homage  (the  tenants  holding  under  the 
lord  of  the  manor)  being  convened  together  eo  nomine  as  the  homage 
(not  for  the  purpose  of  extending  their  claims  either  against  the  lord 
or  strangers,  but)  in  order  to  ascertain  those  rights  which  were  their 
own  in  common  with  the  rest  of  the  tenants,  and  being  possessed  of 
all  that  information  which  either  tradition  or  their  own  personal  ob- 
servation could  furnish,  proceeded  to  describe  the  several  customs, 
which  regulated  the  descent  of  the  different  species  of  tenure  within 
this  manor.  Now  can  it  be  supposed  that  these  persons,  acting  under 
the  sanction  of  an  oath,  could  for  no  purpose  whatever  give  a  false 
representation  of  these  customs ;  or  is  it  not  more  probable  that  their 
account  was  the  true  one?  Common  sense  and  common  observ^ation 
would  induce  us  to  believe  the  latter.  The  argument  against  the  ver- 
dict seems  to  admit  that  this  document  was  a  degree  of  evidence  when 
it  was  produced  to  the  jury;  and  if  it  were  admissible  in  evidence, 
it  not  being  opposed  by  any  other  species  of  evidence,  and  the  jury 
having  given  credit  to  it,  it  puts  an  end  to  the  question.  And  that  this 
was  admissible  cannot  be  doubted ;  for  tradition  and  the  received  opin- 
ion are  the  evidence  of  the  lex  loci.  A  distinction  indeed  prevails  be- 
tween a  prescription  as  applied  to  a  particular  tenement,  and  a  custom 

as  the  party  alleged  to  have  existed  beyond  the  time  of  legal  memory;  and 
the  question  is  how  that  right  is  to  be  proved.  First,  it  is  to  be  proved  by 
acts  of  enjoyment  within  the  period  of  living  memory.  And  when  that  found- 
ation is  laid,  then  inasmuch  as  there  cannot  be  any  witnesses  to  speak  to  acts 
of  enjoyment  beyond  the  time  of  living  memory,  evidence  is  to  be  admitted 
from  old  persons,  (not  any  old  persons,  but  persons  who  have  been  conversant 
with  the  neighborhood  where  the  waste  lies  over  which  the  particular  right 
of  common  is  claimed,)  of  what  they  have  heard  other  persons,  of  the  same 
neighborhood,  who  are  deceased,  say  respecting  the  right.  Thus  far  it  is 
evidence  as  applicable  to  this  prescriptive  right,  it  being  a  prescription  in 
which  others  are  concerned  as  well  as  the  person  claiming  it." 


646  HEARSAY  (Ch.  3 

affecting  the  whole  district.  And  the  latter  has  gone  so  far  that  the 
custom  of  one  manor  has  been  given  in  evidence  to  shew  the  custom 
of  another,  where  they  are  both  governed  by.  the  Border-Law.  Now 
here  was  full  proof  of  a  tradition  respecting  the  custom  of  descent 
in  this  manor;  it  was  the  solemn  opinion  of  twenty-four  homagers, 
who  are  the  constitutional  judges  of  that  court,  delivered  on  an  occa- 
sion when  they  were  discussing  the  interests  of  all  the  tenants  of  the 
manor.  I  cannot  distinguish  this  from  the  instance  of  a  terrier,  which 
is  certainly  evidence.  The  case  of  Goodwin  v.  Spray  is  distinguishable 
from  the  present.  Every  thing  that  was  said  by  the  Court  in  giving 
judgment  must  be  understood  secundum  subjectam  materiem.  That 
case  first  decided  that  such  an  instrument  as  the  present  is  admis- 
sible ;  and  then  that  that  part  of  it,  which  said  that  lands  were  not 
partible  either  between  males  or  females,  in  general  terms,  was  to  be 
explained  by  the  custom  as  it  had  existed  in  point  of  fact,  which  did 
not  extend  to  nieces.  And  if  that  decision  go  farther,  and  determine 
that  such  a  document  is  not  admissible  in  evidence  unless  instances  in 
fact  be  previously  proved  to  warrant  the  introduction  of  it,  I  must  beg 
leave  to  dissent  from  it.  In  this  case,  supposing  the  defendant  had 
demurred  to  this  evidence,  I  think  that  the  Court  must  have  drawn  the 
same  conclusion  from  it  which  the  jury  have  drawn;  and  therefore  on 
the  law  of  the  case,  without  recurring  to  the  first  ground  which  I 
mentioned,  I  think  that  the  rule  for  a  new  trial  should  be  discharged. 
Rule  discharged.^' 


DOE,  Lessee  of  DIDSBURY,  v.  THOMAS  et  al. 
(Court  of  King's  Bench,  1811.    14  East,  323) 

This  was  an  ejectment  to  recover  a  farm  consisting  of  35  acres  of 
land,  in  the  parish  of  Tideswell  in  Derbyshire,  which  was  tried  at 
Derby,  before  Wood,  B.  Ann  Didsbury,  the  lessor,  claimed  the  prem- 
ises under  the  will  of  Samuel  White,  dated  26th  of  November  1754, 
whereby  he  devised  them  by  the  description  of,  "all  those  his  closes, 
lands,  and  hereditaments,  with  the  appurtenances,  situate  at  Tideswell, 
then  in  the  possession  of  his  son  Ricbard  White,  to  trustees,  (C.  Flint, 
the  lessor,  being  the  executor  of  the  surviving  trustee,)  for  a  term 
of  500  years,  in  trust  to  raise  £2G0.  for  certain  purposes;  and  subject 
thereto,  to  his  son  Richard  White  for  life;  remainder  to  his  grandson 
Richard  White  for  life:  remainder  to  the  heirs  of  the  body  of  his  said 
grandson  R.  W.°*     ♦     *     * 

03  In  Reed  v.  Jackson,  1  East,  3.^5  (1801),  on  the  Issue  of  a  cnstonmry  ri^ht 
of  way  over  the  land  in  controversy,  a  verdict  in  another  action  lietween 
different  parties  was  admitted,  and  Lawrence,  J.,  ol)served:  "IJeputalion 
would  have  been  evidence  as  to  the  ri^lit  of  way  in  this  case;  a.  fortiori, 
therefore,  the  find  In «  of  twelve  men  upuu  their  oath." 

»*  Part  of  case  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  647 

The  only  question  made  at  tlie  trial  was,  whether  Samuel  White,  the 
testator,  was  seised  of  these  premises  at  the  time  of  making  his  will 
and  at  his  death;  the  plaintiff  insisting  that  he  was  so  seised;  having, 
as  it  was  alleged,  purcliased  them  of  Sir  John  Statham,  and  permitted 
his  son  Richard  to  occupy  them  until  his  (the  testator's)  death.  It  ap- 
peared that  tlie  premises  in  dispute  consisted  of  a  farm  called  the 
Meadow  Farm,  originally  seven  closes,  but  now  divided  into  nine,  and 
in  all  35  acres :  and  it  was  proved  by  several  witnesses  that  one  George 
Robinson,  who  was  tenant  to  Sir  John  Statham,  occupied  the  farm 
before  the  first  Richard  White  had  it ;  and  that  Richard  took  possession 
of  it  about  61  years  ago,  and  continued  possessed  as  long  as  he  lived, 
and  occupied  no  other  land  which  could  have  been  his  father's  during 
that  time.  That  his  father,  Samuel,  lived  from  10  to  14  years  after  the 
first  Richard  was  in  possession  of  the  farm.  But  another  witness,  who 
also  deposed  to  the  fact  of  the  first  Richard's  taking  possession  of  and 
occupying  the  Meadow  Farm  at  the  same  time  when  his  brother,  Ed- 
ward White,  occupied  another  farm  called  Foxlow's  Croft,  said  that 
both  farms  were  reputed  to  be  Sir  John  Statham's,  and  to  have  been 
purchased  by  Samuel  White  of  Sir  John  Statham  at  the  same  time. 
Then  a  deed  was  proved,  dated  25th  of  March  1752,  and  made  between 
Samuel  White  of  the  one  part,  and  Edward  White,  one  of  his  sons, 
of  the  other  part ;  whereby  Samuel  White,  in  consideration  of  natural 
love  and  affection,  &c.  bargained  and  enfeoffed  his  son  Edward  and 
his  heirs  of  all  that  farm,  &c.  within  Tideswell,  called  Foxlow's  Croft ; 
all  which  said  farm,  &c.  have  been  lately  purchased  amongst  other 
lands  and  hereditaments  by  the  said  Samuel  White  of  and  from  Sir 
John  Statham,  &c. ;  habendum  to  Edward  White  in  fee. 

Objection  was  taken  by  the  defendant's  counsel  to  the  evidence  of 
reputation  before  stated;  but  the  learned  Judge  was  of  opinion  that, 
coupled  with  the  deed  above  mentioned,  the  evidence  was  admissi- 
ble. He  thought  that  as  it  was  in  proof  that  Sir  John  Statham  was 
the  landlord  of  the  Meadow  Farm  when  it  was  occupied  by  G.  Robin- 
son before  the  first  Richard  White's  occupation  of  it :  and  that  as  the 
deed  also  proved  that  Sir  John  Statham  was  also  the  owner  of  Fox- 
low's Croft,  and  that  Samuel  White  had  purchased  that,  amongst 
other  lands  and  hereditaments,  of  Sir  John  Statham;  and  as  it  was 
also  proved  that  both  the  sons  (Edward  and  Richard,)  took  possession 
of  tlieir  respective  farms  at  the  same  time ;  there  was  a  sufficient  basis 
laid  to  admit  reputation  that  those  other  lands  and  hereditaments  re- 
ferred to  in  the  deed  were  the  Meadow  Farm:  *  *  *  The  jury 
found  for  the  plaintiff. 

Clarke,  in  last  Easter  term,  moved  for  a  new  trial,  upon  tlie  ground 
of  the  objection  taken  at  the  trial  against  the  admissibility  of  the  evi- 
dence of  reputation,  that  the  land  at  Tideswell,  described  in  the  will 
as  then  in  the  possession  of  the  testator's  son  Richard,  had  belonged 
to  Sir  John  Statham,  and  was  purchased  of  him  by  Samuel  White,  the 
testator.    He  insisted  that  in  no  case  was  reputation  admissible  to  prove 


648  HEARSAY  (Ch.  3 

ownership  or  possession  of  private  property.  And  a  rule  having  been 
granted.     *     *     * 

The  Court  agreed  that  the  rule  must  be  made  absolute ;  Lord  El- 
LENBOROUGH,  C.  J.,  saying  that  it  was  very  unfortunate  for  the  lessor, 
where  the  verdict  must  be  the  same  upon  another  trial,  that  they 
should  be  obliged  to  send  the  cause  to  trial  agairu 

Rule  absolute.®* 


DUKE  OF  NEWCASTLE  v.  BROXTOWE. 

(Court  of  King's  Bench,  1832.    4  Barn.  &  Adol.  273.) 
See  ante,  p.  53,  for  a  report  of  the  case.** 

9  0  For  a  collection  of  the  earlier  cases  on  the  point,  see  notes  to  principal 
case,  14  East,  327-331. 

Morton,  J.,  in  Green  v.  Chelsea,  24  Pick.  (Mass.)  71  (1836):  "The  justice 
who  presided  at  the  trial,  went  far  enough  in  permitting  the  tenants  to  prove 
that  the  premises  were  called  the  town  landing  and  known  by  that  name,  and 
did  right  in  excluding  evidence  that  it  was  reputed  to  be  the  town's  property. 
Reputation  is  never  evidence  of  title,  nor  is  it  ever  admissible  in  support  of 
private  rights." 

Though  only  a  private  boundary  is  in  issue,  yet  when  it  is  shown  to  depend 
on  a  public  boundary,  the  latter  may  be  proved  by  reputation  to  the  same  ex- 
tent as  if  it  were  in  issue.    Thomas  v.  Jenkins,  ante,  p.  110. 

9  8  Lawrence,  J.,  in  the  Berkley  Peerage  Case,  4  Camp.  401  (1811):  "I  con- 
cur with  the  Judges  who  have  stated  their  opinions  against  the  admissibility 
of  the  evidence.  From  the  necessity  of  the  thing,  the  declarations  of  members 
of  the  family,  in  matters  of  pedigree,  are  generally  admitted ;  but  the  ad- 
ministration of  justice  would  be  perverted  if  such  declarations  could  be  ad- 
mitted which  have  not  a  presumption  in  their  favour  that  they  are  consistent 
with  truth.  Where  the  relator  had  no  interest  to  serve,  and  there  is  no 
ground  for  supposing  that  his  mind  stood  otherwise  than  even  upon  the  sub- 
ject (which  may  be  fairly  inferred  before  any  dispute  upon  it  has  arisen,) 
we  may  reasonably  suppose  that  he  neither  stops  short,  nor  goes  beyond  the 
limits  of  truth  in  his  spontaneous  declarations  respecting  his  relations  and 
the  state  of  his  family.  The  receiving  of  these  declarations,  therefore,  though 
made  without  the  sanction  of  an  oath,  and  without  any  opportunity  of  cross- 
examination,  may  not  be  attended  with  such  mischief  as  the  rejection  of  such 
evidence,  which  in  matters  of  pedigree  would  often  be  the  rejection  of  all 
the  evidence  that  could  be  offered.  But  mischievous  indeed  would  be  the 
consequence  of  receiving  an  ex  parte  statement  of  a  deceased  witness,  al- 
though upon  oath,  procured  by  the  party  who  would  take  advantage  of  it, 
and  delivered  under  that  bias  vvbich  may  naturally  operate  on  (lie  mind  in 
the  course  of  a  controversy  upon  llie  subject.  Notwithstanding  wiiat  is  said 
in  Goodrlght  v.  Moss,  I  cannot  think  that  Lord  Mansfield  would  have  held 
that  declarations  in  matters  of  pedigree,  made  after  tlie  controversy  had  aris- 
en, ought  to  1)6  submitted  to  the  jury.  They  stand  precisely  on  the  same 
footing  as  declarations  on  questions  of  rights  of  way,  rights  of  common,  and 
other  matters  depending  upon  usage;  and  although  I  cannot  call  to  mind  the 
ruling  of  any  particular  Judge  ui)on  the  sul)ject,  yet  I  know  that  according 
to  my  experience  of  the  practice,  (an  experience  of  nearly  forty  years,)  when- 
ever a  witness  has  admitted  that  what  he  was  going  to  state  he  had  heard 
after  the  beginning  of  a  controversy,  his  testimony  has  been  uniformly  re- 
jected. If  the  danger  of  fabrication  and  falsehood  be  a  reason  for  rejecting 
such  evidence  In  cases  of  prescrli)tion,  that  will  equally  apply  in  cases  of 
pedigree,  where  the  stake  Is  generally  of  much  greater  value.     •     •     •  " 


Sec.  2)  RECOGNIZED   EXCEPTIONS  649 

THE  QUEEN  v.  BLISS. 

(Court  of  Queen's  Bench,  1837.    7  Adol.  &  E.  550.) 

Indictment  for  obstructing  a  public  highway.  Plea,  not  guilty.  On 
the  trial  before  Gaselee,  J.,  at  the  Suffolk  Spring  assizes,  1836,  a  prin- 
cipal question  was,  whether  the  way  obstructed  was  public  or  private. 
A  witness  for  the  prosecution  stated  that  one  Ramplin,  a  publican,  who 
was  dead  at  the  time  of  the  trial,  had  planted  a  willow  thirty  years  ago 
on  a  meadow,  of  which  he  was  tenant  and  occupier,  and  over  which  the 
way  in  question  now  ran.  The  counsel  for  the  prosecution  then  asked 
"what  Ramplin  said,  when  he  planted  the  willow,  about  his  planting 
it?"  The  question  was  objected  to,  but  admitted  by  the  learned  judge, 
and  the  witness  answered  that  Ramplin  said  he  planted  it  to  show  where 
the  boundary  of  'the  road  was  when  he  was  a  boy.  The  willow  had 
remained  ever  since.  The  jury  found  that  the  way  was  public,  and  a 
verdict  was  taken  for  the  crown.  In  the  ensuing  term,  a  rule  nisi  was 
obtained  for  a  new  trial,  on  the  ground  that  the  above  evidence  ought 
not  to  have  been  admitted. 

Lord  Denman,  C.  J.®^  The  question  in  this  case  was,  whether  the 
road  obstructed  was  or  was  not  a  public  highway.  To  prove  that  it 
was  so,  a  witness  was  called  whose  statement  was  calculated  to  make 
a  great  impression  on  the  jury.  He  stated  that  Ramplin,  a  former  oc- 
cupier of  the  meadow  over  which  the  road  ran,  had  planted  a  willow, 
and  in  doing  so,  said  that  he  planted  it  to  show  where  the  boundary 
of  the  road  was  when  he  was  a  boy.  And  it  is  inferred,  from  the  cir- 
cumstances, that  Ramplin  meant  to  speak  of  the  road  as  having  been 
public.  I  think  the  evidence  was  not  admissible.  It  is  not  every  dec- 
laration accompanying  an  act  that  is  receivable  in  evidence:  if  it  w-ere 
so,  persons  would  be  enabled  to  dispose  of  the  rights  of  others  in  a 
most  unjust  manner.  The  facts  that  Ramplin  planted  a  willow  on  the 
spot,  and  that  persons  kept  within  the  line  pointed  out  by  it,  would  have 
been  evidence ;  but  a  declaration  to  show  that  the  party  planted  it  with 
a  particular  motive  is  not  so.  Then,  is  the  declaration  evidence  as  made 
against  the  party's  interest?  If  we  held  that  it  was,  we  should  get 
rid  of  the  authority  of  Daniel  v.  North,  11  East,  372,  where  it  was 
held  that  a  tenant  cannot,  merely  by  his  own  admission,  bind  the  land- 
lord. It  is  true  that  the  landlord  and  tenant  here  may  have  had  the 
same  interest ;  but  so  they  possibly  may  in  any  case :  they  might  in 
Daniel  v.  North.  Neither  was  the  evidence  admissible  as  showing 
reputation.  Any  statement  from  a  person  since  deceased  is  to  be  receiv- 
ed with  caution.  Lord  Ellenboroug'h,  in  a  leading  case  on  this  subject, 
allowed,  with  great  reluctance,  the  admissibility  of  reputation  as  evi- 
dence.    But  here  the  deceased  party  is  reported  to  have  said  that  the 

8  7  Opinion  of  Patteson,  J.,  omitted. 


650  HEARSAY  (Ch.  3 

boundary  of  the  road  was  at  a  particular  spot ;  that  is,  that  he  knew  it 
to  be  so  from  what  he  had  himself  observed,  and  not  from  reputation. 
I  think,  therefore,  that  the  rule  ought  to  be  absolute. 

Williams,  J.  There  is  no  doubt  that  evidence  of  reputation  is  ad- 
missible where  the  question  to  which  it  applies  is  merely  whether 
the  road  be  public  or  not.  In  Ireland  v.  Powell,  Peake  on  Evidence, 
16,  5th  edit.,  the  question  being  whether  a  turnpike  stood  within  the 
limits  of  a  town,  Chambre,  J.,  admitted  evidence  of  reputation  that  the 
town  extended  to  a  certain  point,  and  allowed  it  to  be  proved  that  old 
people,  since  dead,  had  declared  that  to  be  the  boundary,  but  not  that 
those  people  had  said  that  there  formerly  were  houses  where  none 
any  longer  stood;  observing  that  that  was  evidence  of  a  particular 
fact,  and  not  of  reputation.  The  statement  offered  in  evidence  here 
is  very  like  the  declarations  so  rejected.  It  is  not  reputation,  in  the 
proper  sense.  Declarations  accompanying  acts  are  a  wide  field  of  evi- 
dence, and  to  be  carefully  watched.  The  declaration  here  had  no  con- 
nection with  the  act  done ;  and  the  doing  of  the  act  cannot  make  such 
a  declaration  evidence. 

Coleridge,  J.  It  is  a  rule  that  evidence  of  reputation  must  be  con- 
fined to  general  matters,  and  not  touch  particular  facts.  To  try  wheth- 
er the  declaration  here  was  admissible  according  to  that  rule,  let  it 
be  severed  from  the  fact  of  planting  which  took  place  at  the  same 
time.  Then  it  stands  that  Ramplin  said  he  planted  the  tree  for  a  cer- 
tain purpose  ;  namely  to  show  the  boundary.  That  is  a  particular  fact ; 
and  evidence  given  of  it  is  Hke  proof  of  old  persons  having  been  heard 
to  say  that  a  stone  was  put  down  at  a  certain  spot,  or  that  boys  were 
whipped,  or  cakes  distributed,  at  a  particular  place,  as  the  boundary; 
which  statements  would  not  be  admissible. 

Rule  absolute. 


DOE  dem.  MOLESWORTH  et  al.  v.  SLEEMAN. 
(Court  of  Queen's  Bench,  1846.    9  Q.  B.  298.) 

Ejectment  for  land,  &c.,  in  the  county  of  Devon.  On  the  trial  before 
Coleridge,  J.,  at  the  Devon  Spring  assizes,  1845,  it  appeared  that  Sir 
W.  Molesworth  claimed,  as  his  own  land,  certain  slips  of  ground  called 
landscores,  extending  respectively  to  the  distance  of  eighteen  feet 
from  the  boundary  fences  of  an  alleged  .manor  called  Affaland,  of 
which  he  was  the  proprietor:  and  it  became  a  question  on  the  evidence, 
whether  Aff;;land  was  or  was  not  a  manor,  and  whether,  if  it  had 
formerly  been  a  manor,  it  had  not  ceased  to  be  so,  and  become  only  a 
manor  by  reputation.  In  proof  of  title  to  the  landscores,  the  plain- 
tiff's counsel  offered  in  evidence  declarations  of  old  persons  deceased 
as  to  the  reputed  boundary  of  the  manor,  and  as  to  the  claim  of  eighteen 


Sec.  2)  RECOGNIZED  EXCEPTIONS  651 

feet  beyond  the  fence  as  part  of  the  manor  lands.  The  evidence  was 
objected  to,  but  received : 

[After  verdict  for  defendant,  a  rule  nisi  for  a  new  trial  was  ob- 
tained.] 

Lord  Denman,  C.  J.,  delivered  the  judgment  of  the  Court. 

The  plaintiff  claimed  this  property,  seeking  to  prove  it  his  by  show- 
ing that  it  was  within  the  boundary  of  his  reputed  manor  of  Aff aland ; 
as  to  the  line  of  which  boundai"y  he  tendered  evidence  of  reputation. 
The  learned  Judge  told  the  jury  that  they  were  to  consider  whether 
this  reputed  manor  was  a  manor,  and  that,  if  it  were  not,  evidence  of 
reputation  as  to  the  line  of  boundary  ought  not  to  be  considered  by 
them,  because  in  that  case  there  was  no  probability  of  conversations 
taking  place  on  this  subject,  as  there  were  no  tenants  of  the  manor  in- 
terested in  holding  such  conversations. 

But,  on  consideration,  we  cannot  accede  to  this  doctrine:  for  a 
reputed  manor  is  that  which  has  been  a  manor,  though  from  some 
supervening  defects  it  has  ceased  to  be  .so.  There  seems  to  be  no 
reason  why  such  conversations  might  not  be  held  during  the  existence 
of  the  manor,  and  kept  in  the  memory  since.  And,  further,  the  sup- 
posed discourse  which  may  be  proved  as  reputation  is  not  confined  to 
tenants,  but  may  proceed  from  any  persons  residing  in  the  neighbour- 
hood, and  likely  to  have  been  engaged  in  talking  upon  the  subject. 

Curzon  v.  Lomax,  5  Esp.  N.  P.  C.  60,  and  Soane  v.  Ireland,  10  East, 
259,  are  among  the  authorities  on  these  points. 

Rule  absolute. 


CLEMENT  V.  PACKER. 

(Supreme  Court  of  the  United  States.  1888.     125  U.  S.  309,  8  Sup.  Ct.  907, 

31  L.  Ed.  721.) 

Ejectment  for  a  tract  of  land  in  the  state  of  Pennsylvania. 

The  plaintiff  claimed  that  the  northern  boundary  of  this  tract  was 
identical  with  the  southern  line  of  the  defendant's  tracts,  and  that 
such  southern  boundary  was  about  60  rods  further  north  than  that 
claimed  by  the  defendant,  and  down  to  which  he  was  in  actual  pos- 
session. The  question  in  the  case,  as  exhibited  by  the  record,  is  one 
of  location,  the  burden  of  proof  being  on  the  plaintiff  below  to  show 
the  location  of  the  northern  boundary  of  the  William  Elliott  tract, 
and  that  the  120  acres  in  dispute  are  within  the  limits  of  that  tract. 

To  show  the  true  location  of  the  maple  at  the  common  corner  of 
the  Reynolds  and  Billington  tracts  to  be  60  rods  south  of  where  Rocke- 
feller had  claimed  to  locate  it,  be  [defendant]  offered  in  evidence  the 
deposition  of  John  Fisher,  deceased,  taken  in  several  cases  pending 
in  the  common  pleas  court  of  Northumberland  county,  between  the 
plaintiff  in  error  and  the  Northumberland  Coal  Company  in  187S,  it 
having  been  admitted  that  John  Fisher  was  dead.     This  deposition 


652  HEARSAY  (Cll.  3 

was  offered  to  prove  by  John  Fisher  that,  in  1815,  Henry  Donnel  was 
surveying  the  Brush  Valley  lines,  and  he  (Fisher)  was  with  him  as 
chain-carrier ;  that  when  they  were  running  the  line  between  the  Bill- 
ington  and  Reynolds  tracts,  and  were  at  a  point  about  60  rods  south 
of  the  stump  located  by  Rockefeller  at  a  swamp,  they  found  a  stone 
corner, — "stones  piled  up."  Donnel  said :  "This  is  the  corner ;  here 
is  where  we  located  these  warrants  21  or  22  years  ago."  The  plaintiff 
below  objected  to  the  admission  of  these  declarations  of  Henry  Don- 
nel. The  court  sustained  the  objections,  and  rejected  those  portions 
of  the  deposition  embraced  in  brackets,  and  sealed  the  bill  of  exceptions 
at  the  instance  of  the  defendant. 

The  jury  returned  a  verdict  for  the  plaintiff  below,  upon  which 
judgment  was  rendered.  The  defendant  below  then  sued  out  this  writ 
of  error.^ 

Mr.  Justice  Lamar.  *  *  *  The  second  specification  relates  to  the 
rejection  by  the  court  of  a  portion  of  the  deposition  of  John  Fisher, 
referred  to  in  the  above  statement.  We  gather  from  the  brief  of 
counsel  that  the  ground  on  which  these  declarations  were  ruled  out 
was  that  they  were  not  within  any  of  the  exceptions  to  the  general  rule 
that  hearsay  evidence  is  inadmissible  to  establish  any  specific  fact 
which  in  its  nature  is  capable  of  being  proved  by  the  testimony  of  a 
person  who  speaks  from  his  own  knowledge.  In  The  Mima  Queen 
V.  Hepburn,  7  Cranch,  290,  296  (3  L.  Ed.  348),  Chief  Justice'  Mar- 
shall says :  "To  this  rule  there  are  some  exceptions  which  are  said  to 
be  as  old  as  the  rule  itself.  These  are  cases  of  pedigree,  of  prescrip- 
tion, of  custom,  and  in  some  cases  of  boundary.  *  *  *  Also  mat- 
ters of  general  and  public  history." 

Upon  the  subject  of  boundary  there  is  a  general  agreement  that, 
by  the  English  rule,  evidence  of  the  declarations  of  deceased  persons 
as  to  the  boundary  of  parishes,  manors,  and  the  like,  which  are  of  pub- 
lic interest,  is  admissible,  but  that  such  evidence  is  inadmissible  for 
the  purpose  of  proving  the  boundary  of  a  private  estate,  unless  such 
boundary  is  identical  with  another  of  public  interest.  In  many  of  the 
states  this  strict  rule  has  been  extended,  and  these  declarations  have 
been  admitted  to  prove  the  boundaries  of  lands  of  private  persons. 
This  extension  of  the  rule  has,  we  think,  been  sustained  by  the  weight 
of  authority  in  the  American  state  courts,  as  justified  upon  grounds 
as  strong  as  those  on  which  the  original  rule  rests.  In  Boardman  v. 
Lessees  of  Reed,  Mr.  Justice  McLean  states  one  of  these  grounds.  He 
says,  (6  Pet.  328,  341  [8  L.  Ed.  415,]) :  "That  boundaries  may  be  proved 
by  hearsay  testimony  is  a  rule  well  settled,  and  the  necessity  or  pro- 
priety of  which  is  not  now  questioned.  Some  difference  of  opinion 
may  exist  as  to  the  a[)plication  of  this  rule,  but  there  can  be  none  as  to 
its  legal  force.  Landmarks  are  frequently  formed  of  perishable  ma- 
terials.    *     *     *     By  the  improvement  of  tlie  country,  and  from  oth- 

»  Statouient  coudcnscd  and  part  of  opLulou  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  653 

er  causes,  they  are  often  destroyed.  It  is  therefore  important,  in 
many  cases,  that  hearsay  or  reputation  should  be  received  to  establish 
ancient  boundaries."  This  was  a  case  of  private  boundaries  purely, 
and  the  declarations  were  rejected,  not  upon  the  ground  of  hearsay, 
but  because  they  were  considered  as  immaterial,  and  not  tending  to 
elucidate  any  question  before  the  jury. 

The  limitations  upon  this  extension  of  the  original  rule  are  differ- 
ent in  different  states.  We  do  not  deem  it  necessary,  in  the  present 
case,  to  lay  down  any  definite  rule,  applicable  to  all  cases,  as  to  when 
declarations  of  deceased  persons  constitute  valid  evidence  to  establish 
private  boundaries.  The  question  is  one  involving  the  ownership  of 
real  property  in  Pennsylvania,  and  it  becomes  our  duty  to  ascertain 
the  rule  established  in  that  state,  especially  as  respects  the  admissibility 
of  the  declarations  of  deceased  surveyors  in  cases  of  boundaries  be- 
tween private  estates.  In  the  case  of  Caufman  v.  Congregation,  6 
Bin.  (Pa.)  59,  the  plaintiff  claimed  a  certain  number  of  acres  which  were 
surveyed  by  one  Wilson,  an  assistant  of  the  deputy  surveyor,  since 
deceased.  The  deputy  surveyor  returned  to  the  land-office  a  smaller 
quantity  than  was  contained  in  Wilson's  actual  survey.  On  the  trial 
of  the  case  evidence  of  what  was  said  by  Wilson  was  objected  to  by 
the  defendant  upon  the  ground  that  the  official  return  of  the  survey 
was  the  best  evidence  of  the  survey.  The  evidence  was  held  by  the 
supreme  court  of  Pennsylvania  to  have  been  rightly  received.  Chief 
Justice  Tilghman  said:  "It  will  be  recollected  that  Wilson  is  dead; 
otherwise  nothing  less  than  his  own  oath  could  have  been  received. 
Where  boundary  is  the  subject,  what  has  been  said  by  a  deceased  per- 
son is  received  as  evidence.  It  forms  an  exception  to  the  general  rule. 
It  was  necessary  for  the  plaintiffs  to  show  their  possession  of  the 
lands.  *  *  *  It  was  impossible  for  the  plaintiffs  to  show  the  ex- 
tent of  their  possession  without  showing  the  hnes  run  by  Wilson. 
Those  lines  were  the  plaintiffs'  boundaries;  at  least  such  was  their 
claim.  It  appears  to  me,  therefore,  that  what  was  said  by  Wilson 
came  within  the  exception  which  admits  the  words  of  a  deceased 
person  to  be  given  in  evidence  in  a  matter  of  boundary."     *     *     * 

These  decisions  ^  clearly  require  the  admission  of  the  testimony  re- 
jected by  the  court  below,  and  the  decisions  cited  by  the  counsel  for 
defendant  in  error  also  seem  to  us  in  harmony  with  the  tenor  and  ef- 
fect of  them.     *     *     * 

To  sustain  the  rejection  of  the  evidence  much  reliance  is  placed  on 
the  decisions  of  this  court  in  the  cases  of  Hunnicutt  v.  Peyton,  102 
U.  S.  333,  26  L.  Ed.  113,  and  EHicott  v.  Pearl,  10  Pet.  412,  9  L.  Ed. 
475.     But  as  the  question  is  one  of  Pennsylvania  law,  to  be  controlled 

2  In  the  omitted  passages,  the  opinion  had  reviewed  the  following  cases: 
Kennedy  v.  Lubold,  88  Pa.  246  (1879) ;  Kramer  v.  Goodlander.  98  Pa.  366 
(1881) ;  McCausland  v.  Fleming,  63  Pa.  36  (1869) ;  Conn  v.  Penn,  PeL  C.  C. 
496,  Fed.  Cas.  No.  3,104  (1818). 


654  HEARSAY  (Ch.  3 

by  Pennsylvania  decisions,  the  observations  of  the  court  in  the  cases 
cited  are  not  pertinent.     *     *     * 

The  case  of  ElHcott  v.  Pearl,  supra,  was  brought  to  this  court  by  a 
writ  of  error  to  the  circuit  court  of  the  United  States  for  the  district 
of  Kentucky ;  and,  in  the  decision  here,  this  court  adhered  to  the  Eng- 
lish rule,  and  rejected  the  evidence  of  the  declaration  of  a  deceased 
surveyor  as  to  the  boundary  of  a  private  estate.  In  so  doing,  this  court 
was  simply  enforcing  the  rule  as  it  existed  in  Kentucky  at  that  time. 
In  Cherry  v.  Boyd,  Litt.  Sel.  Cas.  8,  decided  by  the  supreme  court  of 
that  state  in  1800,  it  was  held  that  evidence  of  the  parol  declarations 
of  a  surveyor  concerning  the  marks  or  lines  of  a  private  estate  were 
inadmissible.  This  being  the  settled  law  of  Kentucky,  this  court  could 
not  have  decided  otherwise  than  it  did  in  EUicott  v.  Pearl.  But  even 
in  that  case  the  court  uses  the  following  guarded  language :  "The  doc- 
trine in  America,  in  respect  to  boundaries  has  gone  further,  and  has 
admitted  of  general  reputation  as  to  boundaries  between  contiguous 
private  estates."     *     *     * 

Judgment  reversed.* 


HEMPHILL  V.  PIEMPHILL. 

(Supreme  Court  of  North  Carolina,  1905.    138  N.  C.  504,  51  S.  E.  42.) 

This  is  an  action  of  ejectment.  The  question  at  issue  is  the  location 
of  the  line  dividing  the  lands  of  the  plaintiffs  and  defendants.  Both  of 
these  tracts  originally  constituted  one  tract,  owned  by  Andrew  Hemp- 
hill. About  1850  a  parol  division  of  this  land  was  made  between  B.  C. 
Hemphill,  one  of  the  plaintiff's,  and  John  R.  Hemphill,  both  sons  of 
Andrew  Hemphill.  The  plaintiffs  claim  that  the  line  in  question,  lo- 
cated when  the  land  was  divided,  runs  from  the  mouth  of  the  branch 
emptying  into  Reem's  creek  to  the  point  of  a  ridge,  and  thence  in  a 
southeasterly  direction  on  the  face  of  the  mountain  across  minor  ridges 
and  gullies  to  the  Jump  Corner.  The  defendants  claim  that  the  line 
runs  from  the  mouth  of  the  branch  to  the  point  of  the  ridge,  and  thence 
in  a  northeasterly  direction  up  the  ridge  to  the  Vance  line.  Betweerj 
these  two  lines  contended  for  is  the  triangular  piece  of  land  in  con- 
troversy. 

[There  was  a  verdict  and  judgment  for  plaintiffs,  from  wliich  de- 
fendants appealed.] 

Hoke,  J.  (after  stating  the  facts).  The  rights  of  the  parties  to  this 
controversy  were  made  to  depend  upon  the  correct  location  of  the  di- 
visional line  between  Benjamin  C.  and  John  R.  Hemphill,  under  whom 
the  defendants  claim ;  and  the  defendants  contend  that  the  true  lo- 
cation of  this  line  runs  from  tlic  "mouth  of  the  branch  to  tiie  point  of 
the  ridge,  and  thence  in  a  northeasterly  direction  up  the  ridge  to  the 

•'  In  Sassor  v.  Ilorrinj:,  14  N.  C.  340  (lS31i),  the  court  ri'fiisotl  1o  extend  the 
doctrine  to  stateuicut.s  by  the  deceased  landowner  in  his  own  favor. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  655 

Vance  line."  In  order  to  establish  this  position,  the  defendants  offered, 
first,  the  deed  from  John  R.  Hemphill,  now  dead,  to  the  heirs  of  John 
Brigman,  bearing  date  November  14,  1866,  as  a  declaration  of  John  R. 
Hemphill  on  the  correct  location  of  the  line  in  dispute.  The  defendants 
further  proposed  to  prove  by  a  witness  (John  G.  Chambers)  that  he 
had  known  the  land  in  controversy  for  50  years;  that  he  knew  the 
general  reputation  in  that  community  as  to  the  true  location  of  this 
divisional  line ;  and  that,  according  to  such  reputation,  the  same  ran 
along  the  top  of  this  ridge,  and  was  placed  as  the  defendants  claimed. 
On  objection  by  the  plaintiffs,  this  testimony  was  held  incompetent, 
and  the  defendants  excepted. 

It  is  the  law  in  this  state  that,  under  certain  restrictions,  both  hear- 
say evidence  and  common  reputation  are  admissible  on  questions  of 
private  boundary.  Sasser  v.  Herring,  14  N.  C.  340;  Shaffer  v.  Gaynor, 
117  N.  C.  15,  23  S.  E.  154;  Yow  v.  Hamilton,  136  N.  C.  357,  48  S.  E. 
782. 

The  restrictions  on  hearsay  evidence  of  this  character — declarations 
of  an  individual  as  to  the  location  of  certain  lines  and  corners — estab- 
lished by  repeated  decisions  are  that  the  declarations  be  made  ante  litem 
motam,  that  the  declarant  be  dead  when  they  are  offered,  and  that  he 
was  disinterested  when  they  were  made.  Bethea  v.  Byrd,  95  N.  C. 
309,  59  Am.  Rep.  240;  Caldwell  v.  Neely,  81  N.  C.  114.  The  declara- 
tions of  John  R.  Hemphill  in  this  deed  to  the  heirs  of  John  Brigman 
as  to  the  location  of  his  ov.m  line  are  hearsay.  They  are  incompetent 
for  the  reason  that  he  was  interested  when  the  same  were  made,  and 
the  judge  below  ruled  correctly  in  excluding  them. 

On  the  second  point — the  evidence  offered  from  the  witness  John  G. 
Chambers  on  the  general  reputation  as  to  the  location  of  the  divisional 
line :  Such  evidence  has  been  uniformly  received  in  this  state,  and  the 
restriction  put  upon  it  by  our  decisions  seems  to  be  that  the  reputation, 
whether  by  parol  or  otherwise,  should  have  its  origin  at  a  time  com- 
paratively remote,  and  always  ante  litem  motam ;  second,  that  it  should 
attach  itself  to  some  monument  of  boundary  or  natural  object,  or  be 
fortified  and  supported  by  evidence  of  occupation  and  acquiescence 
tending  to  give  the  land  in  question  some  fixed  or  definite  location. 
Den  V.  Southard,  8  N.  C.  45 ;  Mendenhall  v.  Cassells,  20  N.  C.  43 ; 
Dobson  v.  Finlev,  53  N.  C.  496:  Shaffer  v.  Gaynor,  117  N.  C.  15,  23  S. 
E.  154;  Westfelt  v.  Adams,  131  N.  C.  379-384,  42  S.  E.  823.  The 
proposed  evidence  comes  fully  up  to  the  requirement  of  these  deci- 
sions. The  reputation  is  attached  to  a  placing  reasonably  definite,  and 
the  witness  stated  that  he  had  known  the  land  for  50  years ;  knew  the 
general  reputation  in  the  community  as  to  the  line  in  dispute,  and  where 
such  line  was  placed  by  that  reputation.  We  think  it  appears  by  fair 
intendment  that  the  reputation  offered  had  its  origin  ante  litem  motam, 
and  at  a  time  sufficiently  remote. 

There  was  error  in  rejecting  the  proposed  evidence,  which  entitles 
the  defendant  to  a  new  trial. 


656  HEARSAY         .  (Ch.  3 

(B)  In  Regard  to  Persons 
KIMMEL  V.  KIMMEL. 

(Supreme  Court  of  Pennsylvania,  1817.     3  Serg.  &  R.  336,  8  Am.  Dec.  655.) 
See  ante,  p.  404,  for  a  report  of  tlie  case. 


REG.  V.  ROWTON. 

{Court  of  Criminal  Appeal,  1865.     10  Cos,  Cr.  Cas.  25.) 
See  post,  p.  764,  for  a  report  of  the  case. 


FRAZIER  V.  PENNSYLVANIA  R.  CO. 
(Supreme  Court  of  Pennsylvania,  1S61.     38  Pa.  104,  SO  Am.  Dec.  467.) 

This  was  an  action  on  the  case  brought  against  the  Pennsylvania 
Railroad  Company  by  William  Frazier,  who  was  a  brakesman  employ- 
ed by  tlie  defendants,  to  recover  damages  for  personal  injuries  received 
by  him  in  the  course  of  his  employment,  by  reason  of  a  collision  of 
trains,  caused  by  the  negligence  of  one  of  the  conductors  of  the  defend- 
ant. 

After  proving  the  manner  in  which  the  collision  occurred,  and  the 
injury  occasioned  by  it,  that  the  train  conducted  by  Shaeffer  was  run- 
ning out  of  time  according  to  the  company's  schedules  and  instruc- 
tions, and  that  although  in  tlie  opinion  of  the  witnesses  tlie  accident 
"might  have  happened  to  a  good  and  careful  man,"  yet  there  "was  a 
little  carelessness  about  it,"  the  plaintiff  offered  to  prove  by  Shaeffer  the 
conductor  (who  was  no  longer  in  the  service  of  the  company),  that  he 
had  had  several  collisions  on  the  road  before,  for  which  he  was  fined 
by  the  company,  and  that  the  agents,  &c.,  of  the  company,  knew  this; 
that  the  former  collisions  were  caused  by  his  carelessness ;  that  they 
were  known  to  the  company,  and  were  so  treated  by  them.  To  all 
which  the  defendants  objected,  on  the  ground  that  previous  special 
acts  of  negligence  are  not  matters  for  the  jury  as  to  general  character, 
and  also  for  the  reason  that  there  can  be  no  recovery  against  the 
company  for  injury  done  to  one  servant  by  the  carelessness  of  another. 
But  the  court  overruled  the  objection,  admitted  the  evidence,  and  seal- 
ed a  bill  of  exceptions  for  defendant.* 

The  opinion  of  the  court  was  delivered  by 

LowRiK,  C.  J.  The  fundamental  averment  here  is,  that  it  was  be- 
cause of  the  carelessness  of  the  conductor  that  the  brakesman  was  in- 
jured, and,  in  order  to  show  that  the  company  was  responsible  for 
this,  it  is  averred  that  they  were  in  fault  in  knowingly  or  negligently 
employing  a  careless  conductor.    The  first  count  avers  the  duty  of  the 

*  Statenjcnt  condensed  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED    EXCEPTIONS  657 

company  to  have  a  careful  and  skillful  conductor,  and  that  this  one 
was  not  so  and  they  knew  it.  The  third,  fourth,  and  fifth  counts  aver, 
that  the  company  might  by  proper  care  have  known  the  conductor's 
character  for  care  and  skill,  and  that  the  plaintiff  did  not  know  it. 

The  question  of  character  thus  became  an  important  one,  and  we 
are  constrained  to  say  that  it  was  tried  on  improper  evidence.  Char- 
acter for  care,  skill,  and  truth  of  witnesses,  parties  or  others,  must  all 
alike  be  proved  by  evidence  of  general  reputation,  and  not  of  special 
acts.  The  reasons  for  this  have  been  so  often  given,  that  we  need  not 
repeat  them.  1  Greenl.  Ev.  §.§  461-469;  Elliott  v.  Boyles,  31  Pa.  67. 
Character  grows  out  of  special  acts,  but  is  not  proved  by  them.  In- 
deed, special  acts  do  very  often  indicate  frailties  or  vices  that  are  alto- 
gether contrary'  to  the  character  actually  established.  And  sometimes 
the  v^ery  frailties  that  may  be  proved  against  a  man,  may  have  been  re- 
garded by  him  in  so  serious  a  light,  as  to  have  produced  great  im- 
provement of  character.  Besides  this,  ordinary  care  implies  occasional 
acts  of  carelessness,  for  all  men  are  fallible  in  this  respect,  and  the 
"law  demands  only  the  ordinary. 

In  the  case  of  Ryan  v.  C.  V.  Railroad  Co.,  23  Pa.  384,  we  decided, 
that  where  several  persons  are  employed  as  workmen  in  the  same  gen- 
eral service,  and  one  of  them  is  injured  through  the  carelessness  of 
another,  the  employer  is  not  responsible.  Many  cases  were  there  cited 
in  support  of  this  principle,  and  many  more  might  be  added  now.  10 
Mees.  &  W.  109,  5  Com.  B.  R.  599,  616;  9  Exch.  223 ;  11  Id.  832; 
16  Queen's  B.  R.  326;  King  v.  Boston  &  Worcester  R.  Corp.,  9  Cush. 
(Mass.)  112;  Gillshannon  v.  Stony  Brook  R.  Corp.,  10  Cush.  (Mass.) 
228;  3  ElHs  &  B.  402;  3  McQueen,  266,  300;  3  Hurlst.  &  N.  648; 
Smith's  Master  and  Servant  (Eng.  Ed.  1860)  133,  146;  Carle  v.  Ban- 
gor &  Piscataquis  Canal  &  R.  R.  Co.,  43  Me.  268;  Noyes  v.  Smith, 
28  Vt.  59,  65  Am.  Dec.  222;  Russell  v.  Hudson  R.  R.  Co.,  17  N.  Y. 
134,  153;  Whaalan  v.  Mad  River  &  Lake  Erie  R.  Co.,  8  Ohio  St.  249. 
We  need  not  reconsider  this  question  in  its  general  aspect. 

This  rule  was  not  disregarded  on  the  trial,  but  if  the  company  em- 
ploy a  conductor  known  by  them  to  be  unfit  for  the  business,  this  new 
fact  changes  the  question  to  be  solved,  and  the  coun  below  charged, 
that  in  such  a  case  the  company  are  chargeable  with  the  consequences 
of  the  carelessness  of  the  conductor.  This  instruction  seems  to  us  cor- 
rect, and  is  supported  by  many  decisions  cited  by  the  plaintift"'s  coun- 
sel, to  which  may  be  added  Railroad  Co.  v.  Barber,  5  Ohio  St.  541, 
67  Am.  Dec.  312.^    *     *     * 

Judgment  reversed.^ 

5  Accord:  Rosenstiel  v.  Pittsburg  Rys.  Co.,  230  Pa.  270,  79  Atl.  556,  33  L. 
R.  A.  (N.  S.)  751  (1911),  annotated. 

Compare  Consolidated  Coal  Co.  of  St.  Louis  v.  Seniger,  179  111.  370,  53  N. 
E.  733  (1S99),  to  the  effect  that  repeated  acts  of  negligence  maj-  be  proved 
to  establish  incompetency. 

HiNT.Ev. — 12 


658  HEARSAY  (Ch.  3 

PARK  V.  NEW  YORK  CENT.  &  H.  R.  R.  CO. 

(Court  of  Appeals  of  New  York,  1898.     155  N.  Y.  215,  49  N.  E.  G74,  63  Am. 

St.  Rep.  6G3.) 

Haight,  J.*  This  action  was  brought  by  the  plaintiff,  who  was  an 
engineer  in  the  employ  of  the  defendant,  to  recover  for  injuries  sus- 
tained by  reason  of  a  collision  with  a  freight  train,  caused  by  the  neg- 
ligence of  one  Brown,  a  brakeman  in  the  employ  of  the  defend- 
ant.    *     *     * 

Inasmuch  as  the  plaintiff  and  Brown  were  co-servants,  this  action 
could  not  be  maintained  without  showing  that  Brown  was  an  incompe- 
tent man,  unfit  for  the  service  in  which  he  was  engaged,  and  that  such 
incompetency  was  known,  or  should  have  been  known,  by  the  officers 
of  the  defendant.     *     *     * 

The  plaintift,  in  order  to  establish  his  cause  of  action,  gave  consider- 
able evidence  with  reference  to  the  general  reputation  of  Brown  for 
carelessness,  which  was  taken  under  the  objection  and  exception  of 
the  defendant,  which  we  shall  not  consider  in  detail.  The  character 
of  this  evidence  has  recently  been  under  consideration  in  this  court 
in  the  case  of  Youngs  v.  Railroad  Co.,  154  N.  Y.  764,  49  N.  E.  1106. 
Inasmuch  as  there  was  no  opinion  written  in  that  case,  we  will  briefly 
allude  to  the  facts  and  the  question  decided.  In  that  case,  as  in  this, 
it  became  necessary  to  show  that  an  employe  was  incompetent.  This 
the  plaintiff  sought  to  do  by  showing  his  general  reputation  for  care- 
lessness from  the  speech  of  people.  It  was  objected  to  by  the  defend- 
ant. The  objection  was  sustained,  and  an  exception  was  taken  by  the 
plaintiff.  The  court  then  stated  to  the  plaintiff's  attorney:  "I  will 
allow  you  to  show  any  specific  acts  of  negligence  on  the  part  of  the 
engineer  while  engaged  in  the  business  of  engineering,  and  I  will  allow 
you  to  show  that  those  acts  of  carelessness  were  generally  known  in 
the  community,  and  that  the  defendant  had  actual  knowledge  of  such 
specific  acts,  or  that  they  were  so  general  that,  upon  proper  inquiry, 
the  defendant  ought  to  have  known."  A  nonsuit  was  granted,  and 
the  same  was  affirmed  in  the  general  term  of  this  court. 

We  are  aware  that  in  some  states  the  courts  have  permitted  incom- 
petency of  servants  to  be  shown  by  general  reputation,  but  we  have 
never  gone  to  that  extent  in  this  state.  It  appears  to  us  that  the  safer 
and  better  rule  is  to  require  incompetency  to  be  shown  by  the  specific 
acts  of  the  servant,  and  then  that  the  master  knew  or  ought  to  have 
known  of  such  incompetency.  The  latter  may  be  shown  by  evidence 
tending  to   establish  that  such   incompetency   was  generally   known  ^ 

«  Part  of  opinion  is  omitted. 

7  McBride,  J.,  in  Benoi.st  v.  Darby,  12  Mo.  19G  (184S):  "♦  ♦  •  We  con- 
cur ill  the  correctness  of  tlie  ex(('i))i()u  laid  down  by  the  .suiircnie  court  of 
Louisiana  in  tlie  case  of  lirandcr  v.  Feraday,  K!  La.  L".)(J  [IMJOI,  and  reco.Lj- 
nizcd  as  law  by  Mr.  Grec'iihaf  in  bis  treatise  on  evidence,  vol.  1,  i>a;;c  KJS, 
and  wblcli  we  think  embraces  the  questions  under  consideration.     The  court 


Sec.  2)  RECOGNIZED  EXCEPTIONS  659 

in  the  community.  Marrinan  v.  Railroad  Co.,  13  App.  Div.  439,  43  N. 
Y.  Supp.  606;  Baulec  v.  Railroad  Co.,  59  N.  Y.  356,  17  Am.  Rep. 
325;  Monahan  v.  City  of  Worcester,  150  Mass.  439,  23  N.  E.  228,  15 
Am.  St.  Rep.  226;  Oilman  v.  Railroad  Co.,  13  Allen  (Mass.)  433,  90 
Am.  Dec.  210;   Davis  v.  Railroad  Co.,  20  Mich.  105,  4  Am.  Rep.  364. 

One  Dean  was  sworn  as  a  witness  for  the  plaintiff,  and  testified  that 
he  knew  Brown  when  he  worked  for  the  defendant  at  Schenectady. 
He  testified  that  he  had  never  heard  his  mental  characteristics  talked 
about,  and  knew  nothing  of  his  mental  reputation,  but  stated  that 
he  had  heard  of  a  handle  to  his  name, — a  nickname.  He  was  then 
asked  to  give  his  nickname.  This  was  objected  to.  The  objection 
was  overruled  and  exception  taken,  and  the  witness  answered  that  he 
was  called  "Crazy  Brown."  This  was  8  or  10  years  before,  and  he 
had  not  heard  him  spoken  -of  before  this  accident  within  the  last  10 
years.  We  think  that  this  evidence  was  prejudicial  and  incompetent, 
and,  witliout  considering  the  other  numerous  exceptions  in  the  case, 
that  a  new  trial  should  be  granted. 

The  judgment  should  therefore  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event.  All  concur,  except  Gray,  J.,  absent, 
and  Martin,  J.,  not  sitting.     Judgment  reversed. 


DOE  dem.  FLEMING  v.  FLEMING. 

(Court  of  Common  Pleas,  1827.     4  Bing.  266.) 

The  lessor  of  the  plaintiff  claimed  the  premises  sought  to  be  recov- 
ered in  this  ejectment  as  heir  at  law  to  his  brother,  the  person  last 
seised. 

His  father  was  still  alive,  and  the  only  evidence  of  the  lessor  of  the 
plaintiff's  having  been  born  in  lawful  wedlock  was  the  reputation  of 
his  parents  having  lived  together  as  husband  and  wife. 

A  verdict  having  been  found  for  the  plaintiff  at  the  trial  before  Best, 
C.  J.,  Middlesex  sittings  after  last  term. 

Wilde,  Serjt.,  moved  for  a  new  trial,  on  the  ground  that  though 
reputation  was  evidence  of  marriage  in  ordinary  cases,  yet  where  the 
plaintiff  was  to  recover  as  heir  at  law,  where  his  being  such  was 
the  sole  question  to  be  tried,  and  his  father  was  still  alive,  direct  evi- 
dence of  the  marriage  ought  to  have  been  furnished. 

say  that  'where  particular  knowledge  of  a  fact  is  sought  to  be  brought  home 
to  a  party,  evidence  of  the  general  reputation  and  belief  of  the  existence  of 
that  fact  among  his  neighbors  is  admissible  to  the  jury  as  tending  to  show 
that  he  also  had  knowledge  as  well  as  thoy.'  It  is  next  to  impossibility  in 
very  many  cases  to  fix  a  positive  knowledge  of  a  fact  upon  an  individual,  not- 
withstanding the  interest  he  may  have  in  being  correctly  informed,  and 
doubtle.ss  is  informed  thereof,  and  we  cannot  see  the  injustice  of  permitting 
a  party  to  raise  a  presumption  of  knowledge  in  such  a  case  by  showing  that 
the  community  are  informed  on  the  subject,  and  hence  the  party  interested 
may  also  have  similar  knowledge." 


660  HEARSAY  (Ch.  3 

Park,  J.  The  general  rule  is,  that  reputation  is  sufficient  evidence 
of  marriage,  and  a  party  who  seeks  to  impug-n  a  principle  so  well  es- 
tablished, ought,  at  least,  to  furnish  cases  in  support  of  his  position; 
as  we  have  heard  none,  I  see  no  reason  for  disturbing  the  verdict. 

Best,  C.  J.  The  rule  has  never  been  doubted.  It  appeared  on  the 
trial  that  the  mother  of  the  lessor  of  the  plaintiff  was  received  into 
society  as  a  respectable  woman,  and  under  such  circumstances  improper 
conduct  ought  not  to  be  presumed. 

Rule  refused.* 


RINGHOUSE  v.  KEEVER. 

(Supreme  Court  of  lUiBois,  1S69.    49  111.  470.) 

Mr.  Justice  Lawrence  '  delivered  the  opinion  of  the  Court. 

This  was  an  action  in  ejectment,  brought  by  Maria  Keever,  claiming 
as  widow  and  heir  of  her  former  husband,  Henry  Hardie.  It  is  ob- 
jected, that  the  proof  of  the  death  was  not  sufficient.  The  ordinary 
rule  is,  that  it  is  general  reputation  among  the  kindred  only  of  a  de- 
ceased person,  that  is  admissible  in  proof  of  death,  but  that  rule  has 
been  sometimes  relaxed,  as  in  Scott's  lessee  v.  Ratliffe,  5  Pet.  81,  8 
L.  Ed.  54.  Where,  as  in  the  present  case,  the  deceased  left  no  kin- 
dred that  are  known,  the  rule  must  be  relaxed  from  necessity. 

In  this  case,  the  depositions  of  two  witnesses  were  taken,  who  lived 
in  New  Orleans,  and  who  were  present  at  the  marriage  of  Hardie  in 
that  city,  in  1845.  They  testify  that  he  had  but  one  child,  who  died, 
and  that  he,  also,  died  of  cholera  in  1849.  His  death  was  announced  in 
the  newspapers,  and  he  was  spoken  of  by  his  acquaintances  as  dead. 
His  widow  subsequently  married  her  present  husband. 

The  instruction  given  for  the  plaintiff  is  not  sufficiently  qualified  as 
a  rule  of  universal  application,  but  in  this  case  it  worked  no  prejudice, 
as  the  evidence  was  competent  and  sufficient.  In  a  population  as  un- 
stable as  ours,  and  comprising  so  many  persons  whose  kindred  are  in 
distant  lands,  the  refusal  of  all  evidence  of  reputation  in  regard  to 
death,  unless  the  reputation  came  from  family  relatives,  would  some- 
times render  the  proof  of  death  impossible,  though  there  might  exist 
no  doubt  of  the  fact,  and  thus  defeat  the  ends  of  justice.     *     *     * 

Judgment  reversed  (on  other  grounds).^" 

8  See  same  rule  approved  in  Birt  v.  Barlow,  1  Doui?.  171  (1779);  Travera 
V.  Relnhardt,  205  U.  S.  423,  27  Sup.  Ct.  503,  51  L.  Ed.  805  (1900). 

»  Part  of  opinion  omitted. 

10  Wolrh  V.  Now  York,  N.  H.  &  H.  Ry.  Co.,  182  Mass.  84,  04  N.  E.  605 
(1902),  death  of  a  witness  proved  by  reputation  brouj^ht  home  to  the  family. 
The  limitation  to  family  repute  appears  to  be  derived  from  the  rule  in  cases 
of  pedigree. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  661 

VIII.  Entries  and  Statements  in  Matters  of  Pedigree 

DOE  ex  dem.  FUTTER  v.  RANDALL. 
(Court  of  Common  Pleas,  1828.     2  Moore  &  Payne,  20.) 

This  was  an  action  of  ejectment.  At  the  trial,  before  Lord  Chief 
Baron  Alexander,  at  the  last  Summer  Assizes  at  Norwich,  the  lessor 
of  the  plaintiff  claimed  as  cousin  and  heir-at-law  of  one  John  Putter, 
who  was  seised,  and  in  possession,  of  the  premises  sought  to  be  re- 
covered by  this  action,  and  who  died  so  seised  in  1769.  It  appeared, 
by  the  plaintiff's  pedigree  that  John  Futter  the  ancestor  left  a  son 
J'ames,  who  had  issue  a  son  James,  whose  eldest  son  was  Samuel,  un- 
der whom  the  lessor  of  the  plaintiff  claimed.  The  defendant  was  in 
possession  under  the  person  last  seised,  who  claimed  under  Richard, 
the  brother  of  John  Futter. 

For  the  lessor  of  the  plaintiff,  a  witness  stated,  that  he  remembered 
John  Futter,  who  was  a  wholesale  tailor;  that  he  left  a  widow,  who 
married  a  person  named  Edwards,  twenty-eight  days  after  her  first 
husband's  death ;  that  she  died  twenty-eight  years  since ;  and  that  he, 
Edwards,  was  buried  about  fifty-eight  years  ago.  Another  witness 
(James  Chapman),  aged  eighty-two,  son  of  Ann  Futter  by  Chapman, 
said,  that  he  had  heard  his  uncle  James  talk  of  the  father  of  John; 
that  he  knew  John,  but  did  not  know  where  he  lived ;  that  his  uncle 
James  lived  at  St.  Faith's,  and  that  he  had  heard  him  speak  of  a  cousin, 
but  did  not  recollect  his  christian  or  sirname,  nor  where  he  lived ; 
that  he  had  heard  James  Futter,  his  uncle,  say  that  James  Futter  of 
Vintry  was  the  cousin  of  John,  who  had  the  estate  at  Cawston ;  that 
James  Futter  of  Cawston  was  the  son  of  witness's  uncle;  that  James 
of  Vintry  had  two  sons,  Samuel  and  James;  that  Samuel  had  been 
dead  some  time,  but  that  witness  did  not  know  what  children  he  had. 
A  third  witness  (Elizabeth  Cooper)  said,  that  she  knew  Mrs.  Edwards ; 
that  her  first  husband  was  John  Futter ;  that  she  said  that  James  Fut- 
ter was  to  have  the  estate;  that  John,  her  husband,  used  to  say,  that 
the  estate  would  go  to  James  Futter,  and  after  his  death,  to  his  heir ; 
that  Mrs.  Edwards  also  said,  that  her  first  husband  told  her  on  his 
death-bed  that  the  estate  would  go  into  the  family  of  the  Futters, 
and  that  it  was  Futter  of  Vintry  who  was  to  succeed.  Two  other  wit- 
nesses swore  that  they  knew  James  Futter  of  Vintry,  and  had  often 
heard  him  say  that  he  was  cousin  to  John  Futter  of  Cawston,  the 
wholesale  tailor,  who  had  the  estate ;  and  that  after  the  decease  of 
Mrs.  Edwards,  the  estate  would  come  to  him  ;  that  James  of  Vintry 
left  two  sons,  Samuel  and  James ;  that  Samuel  was  the  eldest,  and 
died,  leaving  a  son  named  Samuel,  who  was  married.  The  jury  found 
a  verdict  for  the  plaintiff. 

Lord  Chief  Justice  Best.     This  is  an  application  for  a  new  trial, 
and  we  are  bound  to  suppose  that  every  objection  and  observation  as 


662  HEARSAY  (Ch.  3 

to  .the  admissibility  or  effect  of  the  evidence  tendered  for  the  plain- 
tiff at  the  former  trial  was  made  by  the  counsel  for  the  defendant, 
and  attended  to  by  the  Judge,  and  that  the  whole  of  the  plaintiff's  evi- 
dence was  left  to  the  jury,  and  it  appears  to  me  that  they  have  drawn 
a  right  conclusion.  They  were  satisfied  that  the  family  of  the  Put- 
ters, under  whom  both  parties  claimed,  was  one  and  the  same  family, 
and  the  plaintiff  was  entitled  to  show  that  James  was  a  member  of  that 
family.  If  not,  it  is  quite  clear  that  the  declarations  now  objected  to 
could  not  have  been  received  in  evidence.  They  were  admitted,  not  for 
the  mere  purpose  of  showing  that  he  was  connected  with  the  family, 
but  that  he  was  a  member  of  it.  If,  however,  there  were  no  other  evi- 
dence than  the  declarations  of  John,  to  show  that  James  was  a  mem- 
ber of  the  family,  they  could  not  have  been  received,  as  that  would  be 
carrying  the  rule  as  to  the  admissibility  of  hearsay  evidence  further 
than  has  been  ever  yet  done,  viz.  to  allow  a  party  to  claim  an  alli- 
ance with  a  family  by  the  bare  assertion  ^^  of  it.  But  it  appears  to 
me  that  there  was  other  satisfactory  evidence  in  this  case  to  show  that 
James  of  Vintry,  was  a  member  of  the  Futter  Family ;  and  there 
was  no  evidence  to  show  that  there  were  two  families  of  that  name ; 
and,  even  in  the  defendant's  pedigree,  the  name  of  James  Futter  is 
introduced  as  being  descended  from  John.  Laying  that  aside,  however, 
it  is  necessary  to  look  at  the  testimony  of  Mrs.  Cooper :  she  said  that 
she  knew  Mrs.  Edwards,  whose  first  husband  was  John  Futter,  un- 
der whom  lessor  of  the  plaintiff  claimed ;  that  she  (Mrs.  Edwards) 
said  that  James  Futter  was  to  have  the  estate,  and  that  John  Futter, 
her  husband,  used  to  say  that  the  estate  would  go  to  James  Futter, 
and,  after  his  death,  to  his  heir.  That  was  evidence  to  show  that 
James  was  a  relation ;  and,  putting  out  of  the  question  what  John 
said  as  to  the  estate  descending  to  the  heir  of  James,  still  his  decla- 
rations, as  to  the  latter  being  related  to  the  family  were  admissible 
and  properly  received.  So,  the  witness  Chapman,  although  he  was 
eighty-two  years  of  age,  might  have  had  his  recollection  called  to 
certain  facts  with  respect  to  James  Futter ;  for  a  person  at  an  ad- 
vanced age  frequently  remembers  circumstances  which  passed  in  his 
early  days,  although  he  may  have  but  a  faint  or  imperfect  recollec- 
tion of  more  recent  occurrences.  He  said  that  James  Futter  of  Caws- 
ton  was  a  relation  of  the  family,  viz.  the  son  of  his,  the  witness's, 
uncle.  It  must  be  admitted,  after  the  case  of  Vowles  v.  Young,  that 
the  declarations  of  a  party  connected  by  marriage  are  receivable  in 
evidence.  Consanguinity  or  affinity  by  blood,  therefore,  is  not  nec- 
essary, and  for  this  obvious  reason,  that  a  party  by  marriage  is  more 
likely  to  be  informed  of  the  state  of  the  family  of  which  he  is  be- 
come a  member,  than  a  relation  who  is  only  distantly  connected  by 
blood;    as,  by  frequent  conversation,  the   former  may  hear   tiie  par- 

^1  See  Dop  dcm.  Jenkius  v.  Davles,  10  Adol.  &  FA.  (N.  S.)  324  (1847),  ante. 
p.  111. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  663 

ticulars  and  characters  of  branches  of  the  family  long  since  dead:  and, 
if  such  a  party,  on  cross-examination,  were  questioned  as  to  the  decla- 
rations made  by  a  person  deceased,  although  he  did  not  hear  them 
himself,  it  would  be  sufficient  for  him  to  state  that  he  had  heard  his 
relations  say  that  the  deceased  declared  who  and  what  his  cousins  or 
other  relatives  were.  Although  hearsay  evidence  is  only  admissible  on 
questions  of  pedigree  or  prescription,  yet  it  is  absolutely  necessary 
in  such  cases,  as  the  facts  cannot  be  proved  by  living  witnesses  in  the 
ordinary  manner.  Still,  the  declarations  of  deceased  parties  must  be 
taken  with  all  their  imperfections ;  and,  if  they  appear  to  have  been 
made  honestly  and  fairly,  they  are  receivable.  If,  however,  they  are 
made  post  litem  motam,  they  are  not  admissible,  as  the  party  making 
them  must  be  presumed  to  have  an  interest,  and  not  to  have  expressed 
an  unprejudiced  or  unbiased  opinion.  Here,  however,  I  am  of  opin- 
ion, that  the  testimony  of  Mrs.  Cooper,  as  to  the  declarations  made  by 
John  Futter,  the  first  husband  of  Mrs.  Edwards,  that  James  Futter  was 
to  have  the  estate,  was  admissible  to  show  his  relationship  to  the  fam- 
ily, and  lets  in  the  account  given  of  that  person  by  Chapman,  one  of 
the  other  witnesses.  Considering,  therefore,  that  this  evidence  was 
admissible,  and  coupling  it  with  the  other  testimony  in  the  cause,  I 
am  of  opinion  that  the  plaintiff's  pedigree  was  satisfactorily  proved, 
and,  consequently,  that  the  jury  were  fully  warranted  in  finding  a  ver- 
dict for  him. 

Mr.  Justice  Burrough.  It  does  not  appear,  from  the  report,  that 
any  objection  was  taken  to  the  competency  of  either  of  the  witnesses 
tendered  for  the  plaintiff.  I  was  one  of  the  counsel  in  the  case  of 
Vowles  v.  Young,  which  appears  to  me  to  be  in  point.  There,  one 
Thomas  Roberts  said,  that  he  had  heard  Samuel  Noble,  the  husband 
of  Mary  Noble,  say  that  she  was  illegitimate ;  and  it  was  held,  that 
the  declarations  of  Noble  were  admissible;  and  the  Lord  Chancellor 
(Erskine)  said,  13  Ves.  144:  "Upon  questions  of  pedigree,  inscrip- 
tions upon  tomb-stones,  and  engravings  upon  rings  are  admitted."  Id. 
147.  "The  law  resorts  to  hearsay  of  relations,  upon  the  principle  of 
interest  in  the  person  from  whom  the  descent  is  to  be  made  out;  and 
it  is  not  necessary  that  evidence  of  consanguinity  should  have  the 
correctness  required  as  to  other  facts.  If  a  person  says,  another  is 
his  relation  or  next  of  kin,  it  is  not  necessary  to  state  how  the  con- 
sanguinity exists.  It  is  sufficient  that  he  says  A.  is  his  relation,  with- 
out stating  the  particular  degree;  which,  perhaps,  he  could  not  tell,  if 
asked.  But  it  is  evidence,  from  the  interest  of  that  person  in  knowing 
the  connexions  of  the  family."  As,  therefore,  in  this  case,  the  dec- 
larations of  John  Futter,  that  James  was  to  have  the  estate,  were  cor- 
roborated and  confirmed  by  the  testimony  of  Chapman,  I  am  of  opin- 
ion, that  there  is  no  ground  to  disturb  this  verdict. 

Mr.  Justice  GasKLEE.  I  was  at  first  inclined  to  think  that  the  ob- 
jections r:\ised  by  my  Brother  Wilde  were  well  founded ;  but  in  Doe  d. 


G64  HEARSAY  (Ch.  3 

Northey  v.  Harvey,  1  Ry.  &  Mood.  297,  the  declarations  of  the  late 
husband  of  one  of  the  family  were  held  to  be  admissible  in  order  to 
prove  a  pedigree,  although  he  was  not  otherwise  related  to  the  family ; 
Mr.  Justice  Littledale  thinking,  that,  for  the  purpose  for  which  the 
declarations  by  the  husband  were  offered,  he  must  be  considered  as 
one  of  the  family.  That  case  appears  to  me  to  be  in  point  to  show 
tliat  no  improper  evidence  was  received  at  the  trial  of  this  cause,  and 
that  the  Jury  were  warranted  in  finding  a  verdict  for  the  plaintiff. 
This  rule,  therefore  must  be^ 
Discharged. 


JOHNSON  v.  LAWSON  et  al. 

(Court  of  Common  Pleas,  1824.     2  Bing.  S6.) 

This  cause  was  tried  at  the  Kent  Summer  assizes,  1823,  before  Gra- 
ham, B. 

The  question  for  the  jury  was,  whether  one  Francis  Lidgbird  (whose 
claim  the  plaintiff  supported)  or  Henry  Wilding  (whose  claim  the  de- 
fendant supported)  was  heir  at  law  to  Henry  Lidgbird,  who  died  seised 
of  certain  lands  in  October,  1820,  and  was  the  son  of  John  lyidgbird, 
formerly  sheriff  of  Kent. 

In  consequence  of  a  separation  having  taken  place  between  John 
the  sheriff  and  his  wife,  their  son  Henry  was  brought  up,  from  about 
the  age  of  nine  months,  with  Miss  Weller,  afterwards  Mrs.  Hollin- 
worth,  till  he  went  to  college,  and  he  spent  his  vacations  at  Mrs.  Hol- 
linworth's  house :  John  Lidgbird,  the  sheriff,  Avas  on  the  point  of  mar- 
riage with  Mrs.  Hollin worth  (which  was  prevented  by  his  son  Henry,) 
and  after  the  death  of  John,  Henry  lived  with  Mrs.  Hollinworth  for 
twenty-three  or  twenty-four  years,  and  she  was  the  only  person  in  his 
confidence;  this  was  proved  by  Mrs.  Lucretia  Pakenham,  niece  of  Mrs. 
Hollinworth,  who  had  died  before  the  trial. 

On  the  part  of  the  plaintiff"  it  was  proposed,  among  other  evidence,  to 
give  evidence  of  declarations  made  by  Mrs.  Hollinworth,  as  to  Francis 
Lidgbird  being  the  heir  of  Henry,  who  died  seised ;  but  the  learned 
judge  refused  to  receive  such  evidence. 

It  was  then  proved  by  Mrs.  Elizabeth  Withers,  that  a  Mrs.  King 
had  been  Henry  Lidgbird's  housekeeper  for  twenty-four  years,  and  it 
was  proposed  to  give  evidence  of  declarations  by  Mrs.  King,  who  was 
no  longer  living,  as  to  Francis  Lidgbird  being  the  heir  to  Henry,  but 
this  was  objected  to  by  defendant's  counsel:  and  Mr.  Baron  Graham 
rejected  it,  saying  "that  it  seemed  to  him  to  be  carrying  the  principle  of 
hearsay  evidence  too  far;  De  Grey,  C.  J.,  having  laid  it  down,  tliat  it 
must  be  confined  to  persons  who  are  members  of  the  family." 

Another  witness,  Mrs.  Sophia  Ridley,  was  also  called,  to  give  similar 
proof  of  declarations  by  Mrs.  Hollinworth  and  Mrs.  King,  but  was 
also  rejected. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  665 

A  verdict  having  been  found  for  the  defendants,  Peake,  Serjt.,  ob- 
tained a  rule  nisi  for  a  new  trial,  against  which  Taddy,  Serjt.,  was  to 
have  shown  cause;  but  the  court  called  on  Peake  to  support  his  rule.^- 

Best,  C.  J.  This  is  a  question  of  great  importance,  and  if  I  felt 
any  doubt  I  should  desire  another  argument ;  but,  as  it  is  dangerous  to 
express  doubt  where  none  is  entertained,  I  shall  at  once  pronounce  my 
opinion.  As  a  general  rule,  hearsay  is  not  admissible  evidence,  but  to 
this  general  rule  pedigree-causes  form  an  exception,  from  the  very 
nature  of  the  case.  Facts  must  be  spoken  of  which  took  place  many 
years  before  the  trial,  and  of  these,  traditional  evidence  is  often,  the 
only  evidence  which  can  be  obtained,^"  but  evidence  of  that  kind  must 
be  subject  to  limitation,  otherwise  it  would  be  a  source  of  great  uncer- 
tainty, and  the  limitation  hitherto  pursued,  namely,  the  confining  such 
evidence  to  the  declarations  of  relations  of  the  family  affords  a  rule  at 
once  certain  and  intelligible.  If  the  admissibility  of  such  evidence  were 
not  so  restrained,  we  should,  on  every  occasion,  before  the  testimony 
could  be  admitted,  have  to  enter  upon  a  long  inquiry  as  to  the  degree 
of  intimacy  or  confidence  that  subsisted  between  the  party  and  the  de- 
ceased declarant.  In  Beer  v.  Ward,  Lord  Chief  Justice  Abbott  seems 
to  have  doubted  at  first,  influenced  perhaps  by  a  recollection  of  the  dicta 
in  the  Chancery  cases,  yet  he  afterwards  acceded  to  the  authority  of  the 
decisions  which  have  confined  the  declarations  admissible  to  those  of 

12  statement  abridged  and  opinion  of  Park,  J.,  omitted. 

13  Bartol,  J.,  in  Craufurd  v.  Blackburn,  17  Md.  49,  77  Am.  Dec.  323  (1861): 
"By  the  ordinary  rules  of  evidence,  the  declarations  of  persons,  not  parties 
to  the  cause,  are  excluded  on  the  ground  that  they  are  mere  hearsay.  But 
it  is  a  well  recognized  exception  to  this  rule  that,  in  matters  of  pedigree  the 
declarations  of  deceased  members  of  the  family  are  admitted.  Cope's  Adm'r 
V.  Pearce,  7  Gill,  247  [1848] ;  [Charlotte  Hall  School  v.  Greenwell]  4  G.  &  J. 
416  [1832].  'The  term  "pedigree"  embraces  not  only  descent  and  relation- 
ship, but  also  the  facts  of  birth,  marriage  and  death,  and  the  time  when  these 
events  happen.'  7  Gill,  264.  This  exception  to  the  general  rule  had  its  origin 
in  the  necessity  of  the  case.  'From  the  necessity  of  the  thing,'  said  Lord 
Mansfield,  [Berkeley  Peerage  Case]  4  Camp.  415  [1811],  'the  hearsay  of  the 
family  as  to  marriage,  births,  and  the  like,  are  admitted;'  this  language  is 
cited  in  7  Gill,  264.  But  it  is  objected,  that  although  such  declarations  to 
prove  pedigree  are  ordinarily  admissible,  yet  they  ought  to  have  been  ex- 
cluded in  this  case,  because  the  necessity  did  not  exist,  there  being  a  party 
to  the  alleged  marriage,  living  and  competent  to  testify,  and  because  it  was 
inadmissible  upon  the  principle,  that  the  best  evidence  of  which  the  nature 
of  the  thing  is  capable  must  be  given.  This  objection  arises  from  a  misappre- 
hension of  the  rule.  Such  declarations  are  not  held  to  be  admissible  or  in- 
admissible according  to  the  necessity  of  the  particular  case ;  but  they  are  ad- 
mitted as  primary  evidence  on  such  subjects  by  the  established  rule  of  law, 
which,  though  said  to  have  had  its  origin  in  necessity,  is  universal  in  its  ap- 
plication. Nor  do  such  declarations  stand  upon  the  footing  of  secondary 
evidence,  to  be  excluded  where  a  witness  can  be  had  who  speaks  upon  the 
subject  from  his  own  knowledge.  'Hearsay  evidence  is,  of  course,  inadmi.- 
sible,  if  the  person  making  the  declaration  is  alive,  and  can  be  called.  Bui 
the  declarations  of  a  deceased  mother,  as  to  the  time  of  the  birth  of  her  son. 
are  admissible,  though  the  father  is  living  and  not  called.'  Hubback  on  the 
Evidence  of  Succession,  660,  (48  Law  Lib.)" 

And  so  in  Jarchow  v.  Grosse,  257  111.  36,  100  N.  E.  290,  Ann.  Cas.  1914A, 
820  (1912). 


666  HEARSAY  (Ch.  3 

deceased  relations :  it  is  true,  he  admitted  the  declarations  of  the  serv- 
ants, but  this  was  subject  to  further  discussion,  and  to  avoid  the  possi- 
bility of  incurring  further  expense.  If  we  look  into  the  cases,  we  shall 
find  that  the  rule  has  always  been  confined  to  the  declarations  of  kin- 
dred. In  Goodright  d.  Stephens  v.  Moss  [Cowper,  592],  no  one  can 
read  the  judgment  of  Lord  Mansfield,  and  say  that  the  admissibility  of 
such  declarations  is  to  depend  upon  the  degree  of  intimacy  in  the  party 
making  them.  Lord  Mansfield  says,  "An  entry  in  a  father's  family  bi- 
ble, an  inscription  on  a  tombstone,  are  good  evidence.  So  the  declara- 
tions of  parents  in  their  lifetime."  Aston,  J.,  says,  "rejecting  the  gener- 
al declarations  of  the  father  and  mother  was  wrong."  It  is  clear,  that 
neither  of  these  judges  supposed  the  practice  to  extend  beyond  admit- 
ting the  declarations  of  members  of  the  family.  As  to  the  two  cases  in 
Chancery,  the  question  in  the  first  was,  whether  the  declarations  of  a 
man  who  had  married  into  a  family  were  admissible.  Now,  such  a 
question  would  never  have  been  discussed  if  there  had  been  any  sucli 
practice  as  receiving  the  declarations  of  ordinary  acquaintances;  and 
though  the  expressions  of  the  chancellor  may  seem  to  go  beyond,  he 
decided  only  on  the  ground  that  the  declarations  of  a  husband  might 
be  received.  The  evidence  there,  indeed,  might  perhaps  have  been  re- 
jected on  other  grounds,  inasmuch  as  the  witness  had  a  strong  bias  in 
favour  of  the  legitimacy  he  was  called  on  to  establish.  In  the  second 
case  Lord  Eldon  only  says,  "I  accede  to  the  doctrine  of  Lord  Mansfield 
as  it  has  been  stated  from  Cowper,  but  it  must  be  understood  as  it  has 
been  practised  and  acted  upon." 

What  then  has  been  the  practice?  to  limit  the  admissibility  to  decla- 
rations of  members  of  the  family.  It  is  true,  a  different  opinion  was 
expressed  by  a  most  learned  judge  in  Rex  v.  Eriswell  [3  Term  R.  719]. 
But  that  judge  must  have  been  misled  into  the  opinion  by  the  manu- 
script case  which  has  been  cited ;  that  case,  however,  must  be  unten- 
able at  all  events,  because,  though  declarations  of  members  of  the 
family  may  be  received,  it  is  impossible  to  say,  that  in  any  shape  decla- 
rations of  acquaintances,  as  to  declarations  of  members  of  the  family 
can  ever  be  admissible.  But  it  does  not  appear  that  any  objection  was 
made  at  the  time;  and  that  circumstance  at  once  disposes  of  the  au- 
thority of  tlie  case.  As  to  the  Nisi  Pruis  case  at  Lancaster,  I  wish 
such  cases  were  never  cited.  It  is  not  right  to  repeat  opinions  hastily 
formed  and  delivered  in  the  hurry  of  trial,  and  the  practice  of  re- 
ferring to  them  has  occasioned  all  the  confusion  that  the  enemies  of 
our  law  object  to.  That  decision  probably  conduced  to  mislead  Mr. 
Justice  Bullcr,  for  in  his  own  statement  of  the  case  of  the  Duke  of 
Athol  v.  Lord  Ashburnham,  Bull  N.  P.  295,  he  speaks  only  of  the  decla- 
rations of  a  brother  or  other  near  relation :  it  is  not  wonderful  that 
Lord  iCenyon  should  speak  with  some  hesitation  on  the  point,  after  Mr. 
Justice  Buller  had  spoken  so  decidedly.  The  practice  of  receiving  dec- 
larations in  evidence  is  an  exception  from  our  general  rules  ;  it  has  been 
carried  as  far  as  it  can  with  safety,  and  we  must  not  extend  it  farther. 


Sec.  2)  UECOGNIZED   EXCEPTIONS  667 

BuRROUGH,  J.  T  was  engaged  in  the  case  of  Vovvles  v.  Young  (13 
Ves.  146)  and  we  objected  to  the  declarations  of  the  husband,  that  they 
were  made  after  the  death  of  his  wife,  when  he  was  no  longer  connect- 
ed with  her  family;  but  they  were  received,  on  the  ground  that  his 
knowledge  must  have  been  acquired  while  he  was  yet  connected.  This 
exception  from  the  general  rule,  that  hearsay  shall  not  be  admitted, 
must  be  construed  strictly,  and  the  natural  limits  of  it  are-  the  decla- 
rations of  members  of  the  family.  If  we  go  beyond,  where  are  we  to 
stop?  Is  the  declaration  of  a  groom  to  be  admitted?  of  a  steward?  of 
a  chambermaid?  of  a  nurse?  may  it  be  admitted  if  made  a  week  after 
they  have  joined  the  family?  and  if  not,  at  what  time  after?  We 
should  have  to  try  in  every  case  the  life  and  habits  of  the  party  who 
made  the  declaration,  and  on  account  of  this  uncertainty  such  evidence 
must  be  excluded.  The  argument  for  the  defendant  rests  on  here  and 
there  a  loose  expression  from  a  judge,  and  on  the  circumstance  that 
there  is  no  case  in  which  such  evidence  is  reported  to  have  been  exclud- 
ed ;  but  before  we  can  admit  it,  we  must  be  referred  to  some  case  to 
warrant  its  admission.  We  have  heard  of  no  such  case,  and  therefore 
the  present  rule  must  be 

Discharged. 


INHABITANTS  OF  NORTH  BROOKFIELD  v.  INHABITANTS 

OF  WARREN. 

(Supreme  Judicial  Court  of  Massachusetts,  18G0.     16  Gray,  171.) 

Action  of  contract  for  the  support  of  William  M.  Chickering,  a 
pauper. 

At  the  trial  in  the  superior  court  before  Lord,  J.,  the  plaintiffs  in- 
troduced evidence  tending  to  show  that  Harvey  Chickering,  the  pau- 
per's father,  was  the  legitimate  son  of  Nathaniel  Chickering  and  Ruth 
Richardson,  (who,  as  was  agreed,  were  married  in  Connecticut  on  the 
22d  of  February,  1804,)  and  that  Nathaniel 'gained  a  settlement  in  the 
defendant  town  under  the  St.  of  1793. 

The  defendants,  to  prove  that  Harvey  was  born  before  the  marriage 
of  his  parents,  and  was  therefore  illegitimate,  called  a  witness  who  tes- 
tified that,  in  the  fall  of  1803,  in  company  with  her  aunt,  Mrs.  Blair, 
she  made  a  visit  to  a  relation  who  lived  near  tlie  house  in  which  Ruth 
Richardson  was  then  living,  and  while  there  saw  Harvey  Chickering, 
then  an  infant  two  or  three  weeks  old ;  that  she  remembered  the  date 
from  the  fact  that  Mrs.  Blair's  only  daughter,  named  Susanna,  was  with 
them  and  was  about  a  year  old,  and  that  this  daughter  was  born  in 
September,  1802,  and  died  on  the  12th  of  December,  1803;  and  that 
she  had  been  kept  in  remembrance  of  the  date  of  Susanna's  death  by 
constant  intercourse  with  her  family  since  and  by  frequent  reference 
to  the  family  record.  The  Blair  family  was  not  related  to  the  Richard- 
son or  the  Chickering  family. 


G68  "  HEARSAY  (Ch.  3 

The  defendants  then  offered,  as  evidence  that  Susanna  died  on  the 
12th  of  December,  1803,  a  large  ornamented  sheet  of  parchment,  bear- 
ing the  inscription  "family  record,"  on  which  were  entered  the  dates  of 
the  birth  and  marriage  of  Susanna  Blair's  parents,  the  dates  of  the 
birth  and  death  of  Susanna,  and  of  the  birtli,  marriage  and  death  of 
two  sons  bom  subsequently  of  the  same  parents.  One  of  these  sons, 
forty-seven  years  old,  testified  that,  ever  since  his  earliest  recollection, 
his  father  had  kept  this  parchment  framed  and  hanging  in  a  conspicu- 
ous place  in  his  dwelling-house,  and  had  handed  it  down  to  him ;  that 
during  all  this  time  the  same  entries  had  been  on  it ;  and  that  his  father 
and  mother  were  dead.  And  there  was  evidence  that  the  entries  of 
the  births  and  deaths  upon  the  parchment  were  made,  all  at  one  time, 
by  direction  of  Susanna's  father,  more  than  forty  years  before  the 
trial ;  that  the  record  of  the  marriages  of  his  children  had  been  added, 
from  time  to  time,  as  they  occurred ;  and  that  he  and  his  son  kept  and 
exhibited  the  parchment  as  a  true  statement  of  the  events  recorded  on 
on  it. 

The  defendants  also  offered  to  prove  that  an  ancient  gravestone  in 
the  burial-ground  of  the  Blair  family  bore  the  name  Susanna,  and  had 
inscribed  on  it  December  12,  1803,  as  the  date  of  her  death. 

The  evidence  oft'ered  by  the  defendants  was  excluded ;  the  jury 
returned  a  verdict  for  the  plaintiffs,  and  the  defendants  alleged  excep- 
tions. 

BiGELOW,  C.  J.  At  the  trial  of  this  case,  the  date  of  the  birth  of 
the  father  of  the  pauper,  Harvey  Chickering,  became  a  material  fact, 
because  the  legal  settlement  in  controversy  depended  on  the  question 
whether  the  father  was  born  prior  to  the  marriage  of  his  parents, 
which  took  place  on  the  22d  of  February  1804.  To  prove  the  illegit- 
imacy of  Harvey  Chickering,  the  defendants  introduced  a  witness  who 
testified  that  she  saw  him,  then  an  infant,  during  the  life  time  of  Su- 
sanna E.  Blair.  It  then  became  important  to  establish  the  date  of  Su- 
sanna's death,  because  if  she  died  before  the  date  of  the  marriage  of 
the  parents  of  Harrey  Chickering,  it  would  follow  that  he  must  have 
been  bom  out  of  wedlock. 

It  was  a  case  therefore  where  the  proof  of  a  fact  material  to  the  is- 
sue depended  on  the  existence  of  another  collateral  fact.  The  factum 
probandum  might  well  be  inferred  from  satisfactory  evidence  that  an 
event,  otherwise  immaterial,  took  place  at  a  particular  time.  Such 
testimony  is  not  only  competent,  but  without  it  it  would  often  be  im- 
possible to  prove  essential  facts  in  a  court  of  justice.  Direct  and  posi- 
tive proof  cannot  always  be  obtained,  and  in  matters  especially  which 
relate  to  remote  periods  it  is  necessary  to  resort  to  circumstantial  evi- 
dence and  presumption  to  supply  the  place  of  that  testimony  which  is 
lost  by  the  lapse  of  time  and  the  imperfection  of  huu'ian  memory. 
Such  evidence  in  the  strict  legal  sense  is  not  collateral.  It  raises,  it 
is  true,  a  new  and  distinct  inquiry;  but  if  it  affords  a  reasonable  pre- 
sumption or  inference  as  to  the  principal  fact  or  matter  in  issue,  it  is 


Sec.  2)  RECOGNIZED   EXCEPTIONS  609 

relevant  and  material  and  does  not  tend  to  distract  or  mislead  the  jury 
from  the  real  point  in  controversy. 

The  objection  more  strenuously  urged  to  the  evidence  offered  at 
the  trial  is  to  the  nature  and  quality  of  the  proof  by  which  the  defend- 
ants sought  to  establish  the  date  of  Susanna  Blair's  death.  It  is  not 
denied  that  this  evidence  would  have  been  competent,  if  it  had  been  in- 
troduced to  prove  a  fact  directly  in  issue,  such,  for  instance,  as  Ihe 
date  of  the  pauper's  birth ;  but  it  is  contended  that  it  was  inadmissible 
to  establish  a  fact  collateral  in  its  nature,  from  which  the  main  fact  in 
issue  was  to  be  deduced  by  inference.  But  we  know  of  no  such  dis- 
tinction in  the  rules  of  evidence.  The  competency  of  proof  cannot  be 
made  to  depend  on  the  inference  or  conclusion  which  is  sought  to  be 
drawn  from  it.  If  it  is  competent  to  prove  a  particular  fact  in  con- 
troversy when  it  is  directly  in  issue,  it  is  equally  competent  when  the 
same  fact  is  to  be  established  in  order  to  form  the  ground  of  an  in- 
ference or  presumption  from  which  the  material  subject  of  inquiry 
can  be  deduced.  The  true  test  is,  to  inquire  whether  the  evidence  is 
admissible  to  prove  the  fact  which  it  is  offered  to  establish,  and  not 
whether  such  fact  is  directly  or  only  collaterally  in  issue. 

In  the  present  case,  the  defendants  sought  to  prove  the  date  of  the 
death  of  Susanna  Blair  by  a  document  or  chart  containing  a  record  of 
the  births,  marriages,  and  deaths  kept  in  her  family  for  a  long  series 
of  years,  and  handed  down  by  her  deceased  parent  to  his  sons  as  con- 
taining a  true  statement  of  the  events  therein  recorded;  and  also  by 
proof  of  the  inscription  on  the  tombstone  erected  to  her  memory  in 
the  family  burial-ground.  Such  evidence  is  deemed  to  be  competent 
and  satisfactory  proof  of  family  descent,  and  also  of  the  dates  of  the 
leading  events  in  family  history,  such  as  births,  marriages  and  deaths, 
especially  when  they  relate  to  ancient  occurrences.  They  are  con- 
temporaneous with  the  events  which  they  record;  they  are  made  by 
parties  who  are  cognizant  of  the  facts,  and  who  would  have  no  inter- 
est or  motive  in  misstating  them ;  and  they  are  in  their  nature  public, 
openly  exhibited,  and  well  known  to  the  family,  and  therefore  may  be 
presumed  to  possess  that  authenticity  which  is  derived  from  the  tacit 
and  common  assent  of  those  interested  in  the  facts  which  they  record. 

Some  of  the  authorities  seem  to  limit  the  competency  of  this  species 
of  proof  to  cases  where  the  main  subject  of  inquiry  relates  to  pedigree, 
and  where  the  incidents  of  birth,  marriage  and  death,  and  the  times 
when  these  events  happened,  are  directly  put  in  issue.  But  upon  prin- 
ciple we  can  see  no  reason  for  such  a  limitation.  If  this  evidence  is 
admissible  to  prove  such  facts  at  all,  it  is  equally  so  in  all  cases  when- 
ever they  become  legitimate  subjects  of  judicial  inquiry  and  investi- 
gation. 

We  are  therefore  of  opinion  that  the  rejection  of  the  proof  offered 
at  the  trial  to  establish  the  date  of  the  death  of  a  person  who  deceased 
more  than  fifty  years  previously  was  erroneous.     1  Greenl.  Ev.  §§  103, 


670  -  HEARSAY  (Cll. 


104;    Berkeley  Peerage  Case,  4  Campb.  401;    ^Monkton  v.  Attorney 
General,  2  Russ.  &  Myl.  162;  Jackson  v.  Cooley,  8  Johns.  (N.  Y.)  131. 
Exceptions  sustained.^* 


PLANT  et  al.  v.  TAYLOR  et  al. 
(Court  of  tlie  Exchequer,  ISGl.     7  Hurl.  &  X.  211.) 

Chann-Ell,  B.^^  This  was  an  action  of  ejectment,  tried  before  my 
Brother  Byles,  at  the  Cheshire  Spring  Assizes,  of  last  year.  It  was 
brought  to  recover  certain  premises  at  Cranage,  in  the  county  of 
Chester.  Both  the  plaintiffs  and  defendants  claimed  under  a  settle- 
ment made  by  one  Richard  Taylor  (whom  we  will  call  "the  settlor"), 
the  plaintiffs  claiming  as  tenants  in  common  in  fee,  by  virtue  of  an 
appointment  made  by  one  Elizabeth  Taylor,  entitled  in  default  of  law- 
ful children  of  Thomas  Taylor,  the  elder,  the  son  and  heir  of  the 
settlor:  the  real  defendants  (who  were  admitted  to  defend  as  land- 
lords) claiming  as  tenants  in  common  in  fee,  either  as  entitled  by  an 
appointment  made  by  him  under  the  settlement,  or  as  his  heirs  in 
default  of  appointment ;  and  likewise  claiming  the  benefit  of  an  al- 
leged outstanding  term,  created  long  anterior  to  the  settlement,  and 
to  the  history  of  which  it  is  necessary  to  draw  attention.     *     *     * 

Supposing  the  defendants  to  be  the  lawful  children  of  Thomas  Tay- 
lor, the  elder,  it  is  admitted  that  the  plaintiffs  would  not  be  entitled,  and 
that  the  defendants  would  not  require  the  benefit  of  this  term.  On 
the  other  hand,  supposing  the  defendants  not  to  be  the  lawful  chil- 
dren of  Thomas  Taylor,  the  elder,  they  would  not  be  entitled,  either 
under  the  appointment  made  by  him  or  under  the  settlement  in  de- 
fault of  appointment;  for  the  settlement  only  gave  the  power  and 
made  the  limitation  expressly  in  favour  of  lawful  children.  At  the 
trial  it  was  denied  that  they  were  his  lawful  children,  by  reason  that 

14  Holmes,  J.,  in  Com.  v.  Stevenson,  142  Mass.  466,  8  N.  E.  341  (1886): 
"We  see  no  sufficient  reason  why  a  person  should  not  be  allowed  to  testify 
to  the  date  of  his  birth,  if  that  question  is  fairly  open  on  the  exceptions. 
The  certificate  which  is  made  evidence  by  the  Pub.  St.  c.  32,  §  11,  is  hearsay, 
and  no  more  liliely  to  be  accurate  than  the  .sworn  statement  of  the  party  con- 
cerned, based,  as  it  must  be,  on  family  tradition,  and  fortified  by  his  knowl- 
f-dge  of  himself.  Hill  v.  Eldridge,  126  Mass.  234  [1S791 ;  Choever  v.  Cong- 
don,  34  Mich.  206  [18701 ;    State  v.  Cain,  9  W.  Va.  SHO,  .^)70  [1876]." 

And  so  in  State  v.  Marshall,  137  Mo.  463,  36  S.  W.  619,  39  S.  W.  63  (1897). 

The  general  proposition,  that  the  same  sort  of  evidence  may  be  used  to 
prove  a  given  fact  without  regard  to  whether  the  latter  is  ultimate  or  evi- 
dential, is  illustrated  by  the  rule  that  rei)utation  is  admissil)le  to  establish 
a  public  boundary,  though  merely  for  the  i)uri)0se  of  locating  a  private  bound- 
ary, Thomas  v.  Jenkins,  6  Adol.  &  Ellis,  525  (1837),  ante,  p.  110.  But  in 
England  it  seems  to  be  well  settled  that  the  present  exception  does  not  admit 
oven  family  hearsay  to  prove  the  nu^re  fact  of  birth  or  death,  or  the  time 
or  i)la<e  of  such  events,  excejit  as  involved  in  a  question  of  pedigree,  Rex 
V.  Kritb,  8  East,  r/M  (1807);  llMiiics  v.  Guthrie,  13  Q.  P..  D.  818  (1884),  ex- 
cluding a  decea.sed  parent's  statement  of  age  on  a  plea  of  infancy. 

15  Statement  and  part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  G71 

previous  to  his  marriage  with  their  mother  he  had  been  married  to 
another  woman,  one  Anne  Wickstead,  who,  it  was  admitted,  hved  un- 
til 1844. 

At  the  trial  the  plaintiffs  proved  their  pedigree  as  heirs  of  Elizabeth 
Taylor,  who  would  be  entitled«in  default  of  lawful  children  of  Thomas, 
and  their  title  was  not  disputed  in  such  event.  On  the  other  hand,  on 
the  part  of  the  defendants,  it  was  proposed  to  prove  declarations  ^"^ 
by  Thomas  Taylor  to  disprove  his  first  marriage,  which  were  objected 
to  and  rejected.  The  learned  Judge  was  not  asked  to  put  the  ques- 
tion of  legitimacy  to  the  jury,  nor  to  determine  it  as  a  question  on 
which  the  admissibility  of  the  evidence  might  depend.    *    *    * 

It  becomes  necessary,  then,  to  dispose  of  the  cross  rule  for  a  new 
trial. 

In  the  course  of  the  argument  we  expressed  a  strong  opinion  that 
the  evidence  rejected  by  the  learned  Judge  was  rightly  rejected.  As 
we  have  stated  more  than  once,  the  sole  question  of  fact  in  dispute  at 
the  trial  was  the  legitimacv  of  the  defendant  Tavlor  and  the  female 
defendants.  This  depended  on  the  validity  of  the  marriage  of  the 
persons  who  were  de  facto  their  father  and  mother. 

The  fact  of  the  marriage  of  the  father,  Thomas  Taylor,  with  Anne 
Wickstead  before  his  marriage  with  the  mother  of  the  defendant  Tay- 
lor, and  that  Anne  Wickstead  was  at  that  time  living,  was  proved. 

The  defendant,  Taylor,  was  called  as  a  witness  to  prove  declara- 
tions by  his  father  respecting  his  first  marriage.  Before  a  declaration 
can  be  admitted  in  evidence  the  relationship  of  the  declarant  de  jure, 
by  blood  or  marriage,  must  be  established  by  some  proof,  independent 
of  the  declaration  itself.  See  the  cases  cited  in  Taylor  on  Evidence, 
vol.  1,  p.  526,  note  4. 

Slight  evidence,  no  doubt,  would  be  sufficient.  Here  there  was  no 
proof  of  any  relationship  de  jure  between  the  declarant  and  the  de- 
fendant.    The  proof  was  the  contrary. 

Perhaps  the  learned  Judge  was  right  in  rejecting  the  evidence,  on 
the  ground  that  any  declaration  made  by  Thomas  Taylor,  the  father, 
on  the  subject,  though  not  made  post  litem  motam,  or  after  dispute 
as  regards  the  property  had  actually  arisen,  would  be  a  declaration  by 
a  person  whose  mind  could  not  be  free  from  bias.  It  was  manifestly 
in  many  ways  directly  for  his  interest  to  make  a  declaration  tending 
to  disavow  his  first  marriage,  or  having  a  tendency  to  show  that  it 
was  an  illegal  marriage,  and  consequently  did  not  invalidate  the  second. 

16  The  nature  of  the  excluded  statements  is  indicated  by  the  following  re- 
mark by  Pollock,  C.  B.,  during  the  course  of  the  argument:  "Doclaratious  of 
a  deceased  person  are  only  admissible  for  the  purpose  of  reputation,  not  of 
proving  facts.  It  may  be  proved  by  the  declaration  of  a  parent  that  one  of 
his  children  was  older  than  another,  but  his  declaration  is  not  admissible  for 
the  purpose  of  proving  that  his  marriage  with  a  second  wife,  in  the  lifetime 
of  the  first,  was  valid,  because  the  first  wife  was  married  at  the  time  she 
married  him.  The  declarations  must  be  made  respecting  facts  of  a  domestic 
nature,  not  such  as  are  cognizable  in  a  court  of  criminal  justice." 


G72  HEARSAY  (Ch.  3 

No  case  has  been  cited  in  which  the  declaration  of  a  deceased  per- 
son, obviously  for  his  interest,  has  ever  been  received. 

We  are  of  opinion  that  the  rule  to  enter  a  verdict  for  the  plaintiffs 
must  be  made  absolute,  and  the  rule  for  a  new  trial  must  be  discharged. 

Rules  accordingly.^* 


GEE  v.  WARD. 
(Court  of  Queen's  Bench,  1857.     7  El.  &  Bl.  509.) 

Lord  Campdell,  C.  J.,^^  in  this  Term  (April  27th),  delivered  judg- 
ment. 

This  was  an  action  of  ejectment  tried  before  my  brother  Willes  at 
the  Liverpool  Assizes.  Each  party  at  the  trial  sought  to  make  out 
that  he  was  the  heir  at  law  of  one  Jane  Gee,  a  lunatic,  who  died  in 
1854.  The  plaintiff  gave  prima  facie  evidence  of  his  pedigree,  accord- 
ing to  which  one  John  Gee  appeared  to  have  been  the  son  of  Nathaniel 
Gee.  According  to  the  defendant's  case,  John  Gee  was  the  son  of 
Newman  Gee:  and  in  support  of  his  case  he  offered  in  evidence  the 
deposition  of  Martha  Shallcross,  a  deceased  member  of  the  family, 
made  by  her  in  a  matter  of  lunacy  in  1806.  This  was  objected  to  as  in- 
admissible, on  the  ground  of  its  having  been  made  post  litem  motam. 
It  appeared  that  a  commission  of  lunacy  had  been  awarded  against  Jane 
Gee  in  1806,  under  which  she  had  been  found  a  lunatic;  and,  on  the 
petition  of  some  of  her  relatives,  it  had  been  referred  to  the  Master  to 
inquire  who  was  or  were  a  proper  person  or  proper  persons  to  be  ap- 
pointed committee  or  committees  of  the  lunatic,  and  also  who  was  the 
heir  at  law  and  next  of  kin  of  the  lunatic,  to  whom  the  order  of  refer- 
ence directed  notice  to  be  given.  The  relations  who  had  petitioned 
exhibited  a  state  of  facts,  and  supported  that  state  of  facts  by  certain 
depositions,  and,  amongst  others,  that  of  Martha  Shallcross.  We  must 
assume,  on  the  report  of  the  learned  Judge,  that  "no  dispute  appeared 
to  have  existed  upon  the  subject  before  the  death  of  Jane  Gee  in  1854." 
The  deposition  having  been  received  in  evidence,  and  the  verdict  having 
passed  for  the  defendant,  a  rule  for  a  new  trial  was  obtained,  which 
has  been  argued  before  us,  and  upon  which  we  have  now  to  give  our 
opinion. 

The  question  is,  whether  the  deposition  received  at  the  trial  was  ad- 
missible as  the  declaration  of  a  deceased  member  of  the  family,  in  a 
case  of  pedigree.  After  great  deliberation,  we  think  that  this  deposi- 
tion was  properly  received  in  evidence,  according  to  the  rule  by  which, 
in  cases  of  pedigree,  an  exception  is  made  to  the  common  doctrine  of 

17  Compare  the  Berkley  Peerage  Case,  4  Camp.  401  (1811),  whore  the  dec- 
larations of  the  reputed  father  were  admitted  to  prove  legitimacy. 

Se<;,  also,  Goo<lriglit  v.  Moss,  Cowper,  .VJl  (1777),  where  tlie  statement  of 
the  father  and  mother  were  admitted  to  disprove  a  claim  of  legitimacy. 

18  Statement  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  673 

hearsay  not  being  evidence,  and  the  declarations  of  deceased  members 
of  the  family,  made  ante  litem  motam,  are  receivable. 

The  conditions  under  which  such  declarations  are  said  to  be  receiv- 
able are,  that  they  have  been  made  by  deceased  members  of  the  family, 
who,  as  such,  are  supposed  to  have  had  peculiar  means  of  knowledge, 
and  that  they  have  been  made  before  the  arising  of  a  dispute  or  con- 
troversy on  the  subject-matter  in  question.  Such  declarations  are  not 
excluded,  if  made  ante  litem  motam,  even  though  made  by  a  person 
expecting  that  the  interest  he  is  speaking  about  will  ultimately  vest  in 
himself.  "If  no  controversy  existed  at  the  time,  the  principle  acted 
on  is,  that  such  declarations  are  admissible,  though  subject  to  observa- 
tion;" per  Abbott,  C.  J.,  in  Doe  dem.  Tilman  v.  Tarver,  Ry.  &  M.  141 ; 
nor  is  evidence  of  this  nature  excluded,  if  made  ante  litem  motam,  by 
its  being  made  for  the  purpose  of  proof,  or  of  preventing  future  dis- 
putes, as  in  the  common  cases  of  entries  made  by  fathers  of  families. 
Another  rule  on  the  subject  is  that,  to  exclude  testimony  of  this  na- 
ture, the  lis  or  controversy  must  be  on  the  very  point  in  question; 
and  declarations  are  not  excluded,  by  reason  of  lis  mota,  if  made  on 
a  collateral  point  to  that  on  which  the  lis  exists.  This  distinction  was 
recognised  in  Freeman  v.  Phillipps,  4  M.  &  S.  497  (E.  C.  L.  R.  vol. 
30),  where  Bayley,  J.,  says  that,  if  it  were  necessary  to  go  into  the 
question  of  lis  mota,  he  thinks  the  distinction  correct,  that  when  the 
declarations  are  on  the  very  point  they  are  not  evidence,  but  when  the 
point  in  controversy  is  foreign  to  that  which  was  before  controverted, 
there  never  has  been  a  lis  (within  the  rule),  and,  consequently,  the 
objection  does  not  apply. 

It  has,  however,  been  suggested  that  depositions  taken  in  suits,  from 
their  very  nature  and  purpose,  and  from  the  mode  of  taking  them,  are 
exceptions  to  the  general  rule,  and  are  not  admissible  as  declarations 
of  deceased  members  of  families  in  matters  of  pedigree;  and  the  ex- 
pressions of  some  of  the  Judges  in  the  Berkeley  Peerage  Case  are 
cited  in  proof  of  such  an  exception.  We  think,  however,  that  these 
expressions  cannot  be  taken  as  authority  except  with  reference  to  the 
case,  then  before  the  House,  of  a  lis  mota  on  the  very  point.  In  that 
case  it  had  been  thought  proper,  in  the  assumed  state  of  facts  in  the 
questions  proposed  to  the  Judges,  to  state  distinctly  that  the  fact  in 
question  was  disputed  by  C.  D.  in  the  former  suit.  Therefore  the  case 
cannot  be  considered  as  deciding  that  depositions  are  in  no  case  to  be 
received.  All  the  learned  Judges  who  concurred  in  thinking  that  the 
evidence  ought  to  be  rejected,  point  out  the  lis  mota,  dispute  or  con- 
troversy, as  excluding  the  evidence.  It  is  true  that  Mr.  Justice  Law- 
rence, after  showing  the  evidence  to  be  excluded  by  lis  mota,  proceeds 
to  say  that  he  is  likewise  of  opinion  that  "no  deposition  can  be  re- 
ceived in  evidence  as  a  declaration,  to  prove  a  fact  which  it  was  the 
object  of  that  deposition  to  establish."  If  this  means  a  disputed  fact, 
HiNT.?]v. — 43 


674  HEARSAY  (Ch.  3 

^  Jiredly  in  issue  between  the  parties,  it  is  clearly  correct;  but  if  it 
was  meant  to  apply  to  any  fact  collateral  to  tlie  fact  in  dispute,  or  as 
to  which  there  was  no  dispute,  it  is  too  large  a  rule  of  exclusion,  and 
inconsistent  with  later  authorities.  Tlie  learned  Judge  points  out  that, 
besides  the  general  danger  arising  from  there  being  a  lis  or  dispute 
on  the  very  point,  there  was  the  additional  danger  of  the  deposition 
being  prepared  with  the  object  of  proving  the  particular  fact  in  dis- 
pute; but,  in  the  case  before  the  House,  the  particular  fact  had  been 
in  dispute  in  the  prior  proceeding.  The  expressions  of  the  learned 
Judge,  and  certainly  the  decision  of  the  House,  therefore  ought  not 
to  be  taken  as  establishing  the  general  doctrine  that  no  deposition  or 
answer  on  oath  is  admissible  as  the  declaration  of  a  deceased  member 
of  the  family. 

In  the  Banbury  Claim  of  Peerage,  2  Sel.  N.  P.  755  (10th  Ed.),  a 
bill  in  Chancery  and  the  depositions  were  rejected;  and  it  has  been 
supposed  that  the  Judges  in  that  case  intended  to  say  that  depositions 
in  a  suit  in  Chancery  could  not  be  received  as  declarations  of  the 
deceased  members  of  a  family  under  the  rule  in  question.  Besides 
the  remark,  however,  that  the  declarations  in  the  prior  suit  were  in 
that  case  probably  subject  to  objection,  on  the  ground  of  the  ver^ 
point  having  been  in  dispute  in  the  earlier  suit,  it  will  be  found  on  ex- 
amination that  the  Judges  say  no  more  than  that  the  bill  and  deposi- 
tions in  question  were  not  evidence  either  of  the  facts  or  as  declara- 
tions in  matters  of  pedigree,  confining  themselves  very  much  to  the 
terms  of  the  question  put  to  them;  and  they  proceed  to  say  that  the 
statements  in  the  bill  and  depositions  were  no  evidence  that  the  depo- 
nents were  relations  of  the  family.  Some  of  the  depositions  in  that  case 
were  mentioned  as  not  being  the  depositions  of  members  of  the  family ; 
whilst  it  is  stated  that  some  of  the  deponents  stated  themselves  to  be 
members  of  the  family;  and,  there  not  being  the  necessary  evidence 
aliunde  of  their  being  members  of  the  family,  the  Judges  were  per- 
fectly right  in  saying  that  the  depositions  were  not  evidence  as  dec- 
larations in  a  matter  of  pedigree :  and  they  proceed  to  say,  in  answer 
to  a  subsequent  part  of  the  same  question,  that  the  statements  in  the 
depositions  are  not  proof  of  the  deponents  being  relations  of  the  fam- 
ily. The  answer  appears  in  effect  to  be,  that  neither  the  bill  nor  the 
depositions  in  question  were  evidence ;  and  that  the  depositions,  pur- 
porting to  be  made  by  members  of  the  family,  were  not  made  evidence 
by  the  deponents  stating  themselves  to  be  members  of  the  family  with- 
out proof  of  that  fact  ahunde.  Accordingly,  this  case  has  always  been 
cited  as  showing  the  necessity  of  proof  of  the  relationship  aliunde  to 
let  in  declarations  as  the  declarations  of  deceased  members  of  the 
family. 

This  subject  is  ably  treated  by  Mr.  PhilHpps  in  his  book  upon  Evi- 
dence (vol.  1,  p.  206,  10th  Ed.,  by  Phillipps  and  Arnold):  and,  after 
fxruTiininj'  his  nuthnritios,  we  connu-  in  the  rule  which  he  there  lays 


Sec.  2)  RECOGNIZED  EXCEPTIONS  675 

down.    According  to  this  rule  the  evidence  in  the  present  case  was  ad- 
missible ;  and  the  verdict  for  the  defendant  founded  upon  it  ought  not 
to  be  disturbed. 
Rule  discharged. 


CHAMPION  et  al.  v.  McCARTHY. 

(Supreme  Court  of  Illinois,  1907.    228  111.  87,  81  N.  E.  808,  11  L.  R.  A.  [N.  S.] 

1052,  10  Ann.  Cas.  517.) 

Farmer,  J.^'  *  *  *  The  controversy  is  as  to  whether  the  com- 
plainant, Henry  McCarthy,  is  an  heir  of  John  Earl,  deceased,  and  en- 
titled to  an  interest  in  the  lands  of  which  he  died  seised.  Complain- 
ant claimed  to  be  an  illegitimate  son  of  Susan  Champion,  who  was 
the  mother  of  John  Earl.  It  is  admitted  that  Earl  was  an  illegitimate 
son  of  said  Susan  Champion,  whose  maiden  name  was  Ayres.  She 
originally  lived  in  Elizabeth  township,  near  Brockville,  Ontario,  Cana- 
da. There  she  was  married  to  Elias  Champion  in  1830.  John  Earl  wa5 
born  to  Susan  Champion  (then  Susan  Ayres)  in  1822,  and  after  hei 
marriage  to  Elias  Champion  he  became  a  member  of  his  mother's  fam- 
ily and  lived  with  her  up  to  the  time  of  her  death,  in  1893,  usually  be- 
ing known  by  the  name  of  John  Champion.  In  1849  Elias  and  Susan 
Champion,  and  several  children  born  to  them  after  their  marriage,  and 
John  Earl,  moved  to  Du  Page  county,  111.,  where  they  resided  about 
one  year,  and  then  moved  to  Ogle  county,  where  they  lived  until  the 
parents  died.  Susan  Champion  died  in  1893,  leaving  a  will,  in  and  by 
which  she  devised  to  John  Earl  the  real  estate  in  controversy.  Com- 
plainant claimed  to  be  an  illegitimate  son  of  said  Susan  Champion, 
bom  to  her  in  Canada  in  1826,  before  her  marriage  to  Elias  Champion. 
This  would  make  him  a  half-brother  to  John  Earl,  and,  as  such,  an 
heir-''  entitled  to  a  one-fourth  interest  in  the  real  estate  of  which 
John  Earl  died  seised.     *     *     * 

William  Knott  testified,  for  complainant,  that  John  Earl  boarded  at 
his  house  after  his  mother's  death,  and  that  while  boarding  at  his  house 
Earl  told  witness  he  had  a  brother  by  the  name  of  Dan  Champion,  who 
lived  out  West,  a  sister  named  Lydia  Cheshire,  and  a  brother  in  Iowa 
by  the  name  of  Henry  McCarthy ;  that  his  mother  had  told  him  Henr)* 
McCarthy  was  his  brother,  and  he  wanted  him  to  have  his  property. 

Eliza  Vance  testified  that  John  Cheshire,  the  husband  of  Lydia 
Cheshire,  told  her  (the  witness)  shortly  after  the  death  of  his  mother- 
in-law,  Susan  Champion,  that  Henry  McCarthy  was  his  wife's  brother, 
John  Cheshire  died  before  this  suit  was  instituted. 

Delos  W.  Baxter  testified  he  was  a  practicing  lawyer  and  had  practic- 
ed about  25  years.  He  had  held  the  offices  of  state's  attorney  and  state 
Senator.    He  had  known  Susan  Champion  from  his  boyhood,  and  also 

i»  Part  of  opinion  omitted. 

20  Under  the  provisions  of  section  2,  e.  39,  Rev.  St.  111.  1905. 


076  HEARSAY  (Ch.  3 

the  members  of  her  family,  including  John  Earl.  He  had  been  em- 
ployed by  Susan  Champion  in  a  lawsuit  in  tlie  early  part  of  his  profes- 
sional career.  He  testified  that  in  1886  Susan  Champion  came  to  his 
office  with  William  Stocking,  who  was  the  conservator  of  John  Earl, 
to  get  him  to  draw  her  will ;  that  in  transacting  tlie  business  she  talked 
of  her  family,  and  said  Henry  McCarthy,  John  Earl,  Lydia  Cheshire, 
and  Daniel  Champion  were  her  children,  and  also  mentioned  a  child  or 
children  of  a  deceased  daughter.  Some  time  after  this  talk,  the  witness 
drew  the  will,  and  went  with  Mr.  Stocking  to  the  home  of  ]\'Irs.  Cham- 
pion to  have  it  executed.  On  this  occasion  the  witness  said  Mrs.  Cham- 
pion again  told  him  Henry  McCarthy  was  her  son,  but  that  it  was 
not  generally  known  in  the  neighborhood,  and  for  that  reason  she  did 
not  want  his  name  mentioned  in  the  will.  She  also  said  that  McCarthy, 
Mrs.  Cheshire,  and  Daniel  Champion  were  all  well  provided  for,  and 
that  as  John  was  not  bright  he  needed  what  she  had.  The  witness  fur- 
ther testified  that,  after  the  death  of  Mrs.  Champion,  John  Cheshire 
and  Daniel  Champion  (who  died  before  this  suit  was  begun)  told  him 
that  Henry  McCarthy  was  a  half-brother  of  John  Earl,  and  would 
share  in  the  distribution  of  his  estate.  The  proof  also  shows  some  de- 
gree of  intimacy  between  Henry  McCarthy  and  Susan  Champion  and 
her  family.  He  was  a  visitor  at  the  home  of  Susan  Champion  a  num- 
ber of  times  while  she  was  living,  and  at  the  home  of  Lydia  Cheshire 
after  the  death  of  Susan  Champion. 

This  is  the  substance,  we  believe,  of  the  most  material  testimony  re- 
lied upon  by  complainant,  Henry  McCarthy,  which  in  our  opinion  was 
competent.  Appellants  insist  that  this  testimony  was  incompetent.  It 
is  not  denied  that  hearsay  evidence,  such  as  declarations  of  deceased 
parents  and  members  of  the  family,  may  be  proven  to  establish  pedi- 
gree ;  but  it  is  contended  that  the  rule  permitting  such  proof  is  limited 
to  cases  of  legitimate  relationship,  and  cannot  be  heard  to  establish 
illegitimacy.  While  this  position  is  apparently  sustained  in  Flora  v. 
Anderson  (C.  C.)  75  Fed.  217,  cited  and  relied  on  by  appellants,  that 
case  is  not  in  harmony  with  the  great  weight  of  authority,  as  well  as 
the  better  reason.  That  case  followed  the  English  case  of  Crispin  v. 
Doglioni,  3  Swab.  &  Tr.  44,  which  appears  to  have  been  based  upon  the 
common-law  rule  that  an  illegitimate  is  filius  nullius.  This  common- 
law  rule  has  been  abrogated  in  this  and  other  states  by  statute  (Miller 
v.  Pennington,  218  111.  220,  75  N.  E.  919,  1  L.  R.  A.  [N.  S.]  77Z\ 
Bales  V.  Elder,  118  111.  436,  11  N.  E.  421);  and,  where  such  statutes 
have  been  enacted,  Crispin  v.  Doglioni  cannot  be  regarded  as  authority 
to  be  followed.  The  declarations  sought  to  be  proved  in  that  case  were 
those  of  a  deceased  brother  of  the  intestate  putative  father,  and  the 
court  held  that  the  putative  father  had  no  relationship  with  a  bastard 
son,  and  his  declarations,  or  those  of  members  of  his  family,  were 
therefore  incompetent. 

As  to  whether  declarations  of  the  supposed  father  and  members  of 
his  familv  are  competent,  there  is  some  conflict  in  the  authorities.     In 


Sec.  2)  RECOGNIZED   EXCEPTIONS  677 

Elliott  on  Evidence  (volume  1,  §  376),  it  is  said:  "There  is  a  conflict 
as  to  whether  the  declarations  as  to  a  son's  illegitimacy,  by  a  member 
of  the  father's  family,  should  be  rejected.  The  better  rule  is  not  to 
exclude  such  testimony  in  a  proper  case.  There  seems  to  be  no  dissent 
whatever,  however,  as  to  the  admission^of  the  declarations,  in  a  proper 
case,  as  to  illegitimacy,  made  by  a  member  of  the  mother's  family. 
There  is,  perhaps,  a  technical  reason  for  excluding  the  declarations  as 
to  illegitimacy  where  they  show  that  the  person  is  a  bastard,  and  not, 
therefore,  a  member  of  the  father's  family ;  but  this  would  hardly 
apply  in  case  of  the  mother,  and  in  most  of  the  states  there  are  statutes 
which  change  the  common-law  status  of  bastards."  In  Wigmore  on 
Evidence  (volume  2,  §  1492),  the  author  says  it  has  been  held  in  Eng- 
land that,  where  the  relationship  sought  to  be  established  is  that  of  an 
illegitimate  child,  the  declarations  of  the  father's  relations  are  not  com- 
petent, citing  Crispin  v.  Doglioni.  The  author  adds :  "The  principle 
of  the  ruling  has  been  disapproved  in  England,  and  ought  not  to  be 
followed  in  this  country.  It  seems  never  to  have  been  doubted  that 
the  declarations  of  the  parents  themselves,  or  the  repute  in  the  house- 
hold where  the  child  lived,  as  to  a  child's  legitimacy  or  illegitimacy, 
are  receivable,  although  it  is  obvious,  upon  the  false  theory  of  Crispin 
V.  Doglioni,  the  father's  declarations  of  illegitimacy  would  be  inad- 
missible." 

The  case  of  Crispin  v.  Doglioni  was  approved  in  Northrop  v.  Hale, 
76  Me.  306,  49  Am.  Rep.  615;  the  approval  being  upon  the  ground 
that  the  ruling  was  correct,  where  the  bastard  occupied  the  position 
the  common  law  placed  him  in.  In  the  Northrop  Case,  the  claimant 
to  an  estate  sought  to  establish  that  he  was  the  illegitimate  son  of  the 
intestate  by  the  declarations  of  a  deceased  sister  of  the  intestate.  The 
court,  after  citing  and  reviewing  authorities,  English  and  American, 
say:  "It  would  seem,  tlierefore,  that  the  declarations  of  the  intestate 
would  be  admissible  to  show  that  the  appellant  was  her  illegitimate 
son ;  and,  if  the  mother's  declarations  would  be,  why  would  not  be 
those  of  the  mother's  sister,  in  whose  family  the  child  was  born  and 
brought  up  and  in  which  the  mother  lived  at  the  time  and  for  years 
after?" 

The  rule  that  declarations  of  the  supposed  parent  and  deceased  mem- 
bers of  his  or  her  family  may  be  proven  to  establish  the  parentage, 
where  the  relationship  is  illegitimate,  is  supported  in  Crauf  urd  v.  Black- 
burn, 17  Md.  49,  77  Am.  Dec.  323 ;  Blackburn  v.  Crawford,  3  Wall. 
175,  18  L.  Ed.  186;  Watson  v.  Richardson,  110  Iowa,  678,  80  N.  W. 
407;  and  Alston  v.  Alston,  114  Iowa,  29,  86  N.  W.  55.  In  all  of  these 
cases  it  is  held  that  the  declarations  of  the  putative  father  may  be  prov- 
en. Unquestionably,  by  the  great  weight  of  authority,  the  declarations 
of  the  mother  and  the  members  of  her  family  are  competent  to  prove 
the  relation  of  parent  and  child,  without  regard  to  whether  the  claim 
is  that  the  child  was  legitimate  or  illegitimate.  It  is,  of  course,  to  be 
imderstood  that  this  rule  is  applicable  only  in  cases  where  the  child 


G78  HEARSAY  (Ch.  3 

was  bom  before  marriage  of  the  mother,  or  in  cases  where  she  had 
never  been  married.  Besides  the  declarations  of  Slisan  Champion,  the 
complainant  proved  the  declarations  of  John  Earl  and  Daniel  Cham- 
pion that  Henry  McCarthy  was  their  brother,  and  of  John  Cheshire, 
husband  of  Lydia  Cheshire,  oldest  daughter  of  Susan  Champion,  that 
said  Henry  McCarthy  was  the  brother  of  his  wife  and  John  Earl.  We 
think  these  declarations  of  these  parties  were  all  competent.  John 
Cheshire's  relationship  to  the  family,  as  husband  of  Susan  Champion's 
daughter,  was  sufficient  to  render  his  declarations  admissible.  Green- 
wood V.  Spiller,  2  Scam.  502  ;  Bradner  on  Evidence,  p.  427.-^     *     *     * 

Counsel  for  Henry  McCarthy  insist  that  the  testimony  of  Daniel  Mc- 
Carthy was  com.petent,  and  should  have  been  considered  by  the  master. 
He  testified  that  he  and  Henry  McCarthy  were  sons  of  the  same  fa- 
ther, but  not  of  the  same  mother,  and  that  he  had  heard  his  father  say 
that  Susan  Champion  was  Henry  McCarthy's  mother.  Daniel  said 
he  was  14  or  15  years  old  when  he  heard  this  declaration  made,  and 
it  is  apparent  this  was  several  years  after  Susan  Champion  had  been 
married  to  Elias  Champion.  It  does  not  clearly  appear  from  the  ab- 
stract that  Daniel  McCarthy's  father  was  dead  at  the  time  he  testified; 
but,  if  he  was,  we  think  his  declarations  were  incompetent.  Such  dec- 
larations to  establish  pedigree  must  be  of  members  of  the  family  and 
not  of  third  persons.  Daniel  McCarthy's  father  and  Susan  Champion 
were  in  no  way  related,  were  never  members  of  the  same  family,  and 
while  his  declarations,  if  dead,  might  be  competent  to  prove  that  he 
was  the  father  of  Henry,  if  that  were  the  question  at  issue,  they  were 
not  competent  to  prove  that  Susan  Champion  was  the  moth- 
er.    *     *     * 

Affirmed. 


AALHOLM  et  al.  v.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1914.     211  N.  Y.  406,  105  N.  E.  647,  L.  R.  A. 

1915D,  215,  Ann.  Cas.  1915C,  1039.) 

Werner,  J.^^  The  state  has  in  its  possession  money  and  property 
aggregating  over  $50,000  in  amount  and  value,  which  it  received  from 
the  estate  of  one  William  A.  Kenneally,  who  died  testate  in  the  city  of 
Brooklyn  in  1868.  No  person  entitled  to  this  property  could  be  found, 
and  it  was  turned  over  to  the  state  to  await  the  appearance  of  claim- 
ants. Many  persons,  to  the  number  of  100  or  more,  have  at  different 
times  presented  their  claims  based  on  their  alleged  relationship  to  the 
testator,  but  none  was  successful  until  the  present  petitioner  appeared 
and  satisfied  the  referee  of  the  validity  of  his  claim.    *    *    * 

2>  For  .same  result  under  a  .similar  .statute,  see  Nortluop  v.  llale,  7U  Me. 
300,  49  Am.  Kep.  015  (1884). 
22  Part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  679 

The  testator,  William  A.  Kenneally,  was  the  son  of  a  sergeant  in  the 
British  army  named  John  Kenneally,  by  a  wife  whose  maiden  name 
was  Mary  Finn.  The  petitioner  says  he  is  also  a  son  of  the  same  Ser- 
geant John,  but  by  another  wife.  If  this  claim  is  well  founded,  it  fol- 
lows that  he  is  a  half-brother  of  the  testator.  The  only  evidence  of 
the  petitioner's  relationship  to  Sergeant  John,  and  through  him  to  the 
testator,  consists  of  declarations  made  to  the  petitioner  by  his  mother, 
who  has  been  dead  niany  years;  and  by  the  petitioner's  half-sister, 
who  is  also  dead,  to  her  children  who  are  the  petitioner's  nephews 
and  nieces.  The  testimony  as  to  tliese  declarations  is  given  by  the 
petitioner  and  these  nephews  and  nieces.    *     *    * 

Declarations  in  regard  to  pedigree,  although  hearsay,  are  admitted 
on  the  principle  that  they  are  the  natural  effusions  of  persons  who 
must  know  the  truth  and  who  speak  on  occasions  when  their  minds* 
stand  in  an  even  position  without  any  temptation  to  exceed  or  fall  short 
of  the  truth.  Whitelock  v.  Baker,  13  Vesey,  514;  Berkeley  Peerage 
Case,  4  Camp.  401.  The  admissibility  of  such  declarations  is  subject 
to  three  conditions:  (1)  The  declarant  must  be  deceased.  (2)  They 
must  have  been  made  ante  litem  motam,  i.  e.,  at  the  time  when  there 
was  no  motive  to  distort  the  truth.  (3)  The  declarant  must  be  re- 
lated either  by  blood  or  affinity  to  the  family  concerning  which  he^ 
speaks. 

The  declarations  which  we  are  considering  concededly  conform  to 
the  first  two  of  these  conditions.  The  question  here  is  whether  they 
come  within  the  third.  The  learned  counsel  for  the  respondent  con- 
tends, and  the  Appellate  Division  has  held,  that  the  declarations  of  the 
petitioner's  mother,  Margaret  Kearns  Hardiman,  as  to  her  marriage 
to  Sergeant  John  Kenneally,  are  not  alone  sufficient  to  bring  them 
within  that  part  of  the  rule  requiring  the  declarations  to  be  made  by 
a  member  of  the  family  concerning  which  tliey  are  advanced.  More 
concretely  stated,  the  decision  is  that  such  declarations  are  not  compe- 
tent, unless  there  is  some  proof  dehors  the  declarations  themselves  that 
the  declarant  was  related  to  the  family  which  the  declarations  are  in- 
tended to  affect.  Counsel  for  the  appellant  insists,  on  the  other  hand, 
that  these  declarations,  if  taken  as  true,  are  shown  to  have  been  made 
by  a  member  of  the  family  of  Sergeant  John ;  and  the  contention  in 
this  regard  seems  to  be  that  the  declarations  themselves  supply  the 
necessary  corroborative  testimony. 

In  Blackburn  v.  Crawford,  3  Wall.  175,  187,  18  L.  Ed.  186,  it  was 
sought  to  prove  that  certain  persons  were  nephews  and  nieces  of  one 
Dr.  Crawford,  whose  estate  they  claimed.  They  were  children  of  a 
woman  who,  it  was  claimed,  had  married  a  brother  of  Dr.  Crawford. 
This  marriage  was  disputed.  The  declarations  of  a  sister  of  the 
mother  of  the  claimants  were  received  in  evidence  to  the  effect  that 
the  mother  had  told  her  that  she  had  married  a  brother  of  Dr.  Craw- 
ford. These  declarations  were  objected  to  on  the  ground  that  the 
declarant  was  not  shown  to  be  related  to  the  family  of  Dr.  Crawford. 


680  HEARSAY  (Ch.  3 

In  sustaining  this  objection  the  United  States  Supreme  Court,  speak- 
ing by  Mr.  Justice  Swayne,  said: 

"It  is  well  settled  that,  before  the  declarations  can  be  adinitted,  the 
relationship  of  the  declarant  to  the  family  must  be  established  by  oth- 
er testimony.  Here  the  question  related  to  the  family  of  Dr.  Craw- 
ford. The  defendants  in  error  claimed  to  belong  to  the  family,  and 
to  be  his  nephew  and  nieces.  To  prove  this  relationship,  it  was  com- 
petent for  them  to  give  in  evidence  the  declarations  of  any  deceased 
member  of  that  family.  But  the  declarations  of  a  person  belonging  to 
another  family — such  person  claiming  to  be  connected  with  that  fam- 
ily only  by  the  intermarriage  of  a  member  of  each  family — rest  upon 
a  different  principle.  A  declaration  from  such  a  source  of  the  mar- 
riage which  constitutes  the  affinity  of  the  declarant  is  not  such  evidence 
aliunde  as  the  law  requires."    *    *    * 

The  qualification  is  one  of  growing  importance.  Without  it  a  per- 
son may  establish  his  relationship  to  any  family  he  chooses  by  simpi}' 
stating  that  he  has  heard  from  a  member  of  his  family  a  recitation  of 
the  facts  establishing  the  desired  connection.  In  this  country,  filled 
with  densely  crowded  cities  in  which  large  fortunes  are  no  longer  rare, 
it  will  be  wiser  and  safer  to  maintain  this  rule,  circumscribed  by  this 
qualification,  than  to  relax  it  even  in  cases  that  appear  to  be  meritori- 
ous. It  may  prove  a  hardship  now  and  then  to  require  even  slight 
evidence  of  the  relationship  of  a  decedent  to  the  family  of  which  he 
declares  before  his  declarations  will  be  received,  but  the  consequences 
of  the  contrary  rule  would  inevitably  be  much  more  serious. 

With  a  single  exception,  the  English  cases  sustain  this  qualifica- 
tion. Plant  v.  Taylor,  7  Hurl.  &  N.  211,  237;  Hitchins  v.  Eardley, 
L.  R.  (2  P.  &  D.)  248;  Smith  v.  Tebbitt,  L.  R.  (1  P.  &  D.)  354;  Atty. 
Gen.  v.  Kohler,  9  H.  L.  Cases,  660.  It  is  also  the  rule  in  other  states. 
Northrop  v.  Hale,  76  Me.  306,  49  Am.  Rep.  615;  Wise  v.  Wynn,  59 
Miss.  588,  42  x\m.  Rep.  381 ;  Anderson  v.  Smith,  2  Mackey  (D.  C.) 
281 ;  Lanier  v.  Hebard,  123  Ga.  633,  51  S.  E.  632.  The  exception 
referred  to  is  found  in  a  case,  cited  by  counsel  for  the  appellant,  which 
seems  in  theory  to  uphold  the  qualification  above  set  forth,  but  in  fact 
ignores  it.  In  Monkton  v.  Atty.  Gen.,  2  Russell  &  Mylne,  147,  a  nar- 
rative written  by  one  John  Troutman,  purporting  to  give  a  genealogical 
account  of  his  family,  was  admitted  in  evidence  as  a  declaration  to 
prove  the  relationship  of  the  claimants  to  the  testator,  Samuel  Trout- 
man.  John  Troutman,  the  declarant,  who  had  died  prior  to  the  trial, 
was  a  member  of  the  family  of  the  claimants ;  but  if  we  read  the 
facts  aright  there  was  no  other  evidence  connecting  the  two  families. 
Lord  Brougham  there  said : 

"I  agree  entirely  that  in  order  to  admit  hearsay  evidence  in  pedigree, 
you  must,  by  evidence  dehors  the  declarations,  connect  the  person 
making  them  with  the  family.  But  I  cannot  go  the  length  of  holding 
that  you  must  prove  him  to  be  connected  with  both  branches  of  the 
family,  touching  \A'hich  his  declaration  is  tendered.     That  he  is  con- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  681 

nected  with  the  family  is  sufficient;  *  *  *  to  say  that  you  cannot 
receive  in  evidence  the  declaration  of  A.,  who  is  proven  to  be  a  rela- 
tion by  blood  of  B.,  touching  the  relationship  of  B.  with  C,  unless 
you  have  first  connected  him  also  by  evidence  dehors  his  declaration 
with  C,  is  a  proposition  which  has  no  warrant  either  in  the  principle 
upon  which  hearsay  is  let  in,  or  in  the  decided  cases." 

This  case  is  o'ften  cited  and  has  been  the  subject  of  much  comment, 
and  it  seems  to  have  produced  most  of  the  confusion  in  which  this 
subject  of  pedigree  is  involved.  When  that  case  came  before  the 
House  of  Lords  upon  an  appeal  in  a  subsequent  proceeding  (sub  nom. 
Robson  V.  Atty.  Gen,,  10  Clark  &  Fin.  471),  this  question  was  not 
passed  upon,  and,  in  respect  of  the  admissibility  of  the  narrative  of 
John  Troutman,  the  court  plainly  stated  that  it  desired  to  be  "under- 
stood as  not  expressing  any  opinion  as  to  the  admissibility  of  it  in 
point  of  law."  In  Wise  v.  Wynn,  supra,  the  Monkton  Case  was  com- 
mented upon  as  follows : 

"The  same  doctrine  (i.  e.,  requiring  proof  dehors  the  declarations) 
was  announced  in  Monkton  v.  Atty.  Gen.,  2  Russ.  &  Myl.  147,  though 
it  may  perhaps  be  doubted  whether  the  conclusion  reached  in  that  case 
does  not  offend  against  the  doctrine." 

Sitler  V.  Gehr.  105  Pa.  592,  51  Am.  Rep.  207,  and  Estate  of  Hart- 
man,  157  Cal.  206,  107  Pac.  105,  36  L.  R.  A.  (N.  S.)  530,  21  Ann. 
Cas.  1302,  are  in  the  same  category  with  the  Monkton  Case.  That 
case  also  appears  to  be  vouched  for  by  no  less  an  authority  than 
Prof.  Wigmore  in  his  well-known  work  on  Evidence  (volume  2,  § 
1491).  If  we  read  him  aright,  he  expresses  the  view  that  the  Monk- 
ton  Case  sets  forth  the  true  doctrine,  and  he  argues,  in  effect,  that  when 
a  declarant  is  shown  to  be  connected  with  the  family  whose  relation- 
ship with  another  family  is  in  dispute,  his  declarations  are  competent 
without  any  independent  evidence  connecting  the  two.  This  state- 
ment of  the  rule,  it  seems  to  us,  is  too  broad.  When  a  declarant  who 
claims  relationship  by  consanguinity  has  been  shown  to  be  a  member 
of  one  branch  of  a  family,  it  is  of  course  not  necessary  to  prove  him 
also  related  to  the  other  branch  in  order  to  make  his  declarations  com 
petent;  but,  until  there  is  some  independent  evidence  connecting  his 
family  with  the  other  family,  the  case  is  not  brought  within  the 
qualification  of  the  rule  which  is  supported  by  the  great  weight  of  au 
thority.  Much  more  is  this  qualification  to  be  observed  in  cases  of 
asserted  relationship  by  affinity,  as  in  the  case  of  the  declarant  upon 
whom  the  petitioner  relies  to  prove  his  consanguinity  to  the  testator. 
Proof  of  the  marriage  of  the  petitioner's  mother  to  Sergeant  John 
Kenneally  is  essential  to  establish  the  petitioner's  relationship  to  the 
testator.  There  is  no  such  proof  in  the  case  at  bar,  unless  we  accept 
the  mother's  unsupported  declarations  as  evidence  of  tlie  asserted  re- 
lationship, and  this  we  regard  as  inadmissible. 

There  are  a  few  jurisdictions  in  which  it  has  been  held  that  the 
declarant  need  not  be  related,  either  by  blood   or  marriage,  to  the 


GS2  HEARSAY  (Ch.  3 

family  of  which  he  declares.  It  is  of  course  the  logical  corollary  of 
this  unqualified  rule  tliat  the  declarations  of  any  person  who  claims 
to  know  the  facts  are  to  be  regarded  as  competent,  whether  he  is  or  is 
not  related  to  the  family  of  whose  pedigree  he  speaks.  The  reason- 
ing in  support  of  this  relaxed  rule  is  well  illustrated  in  Carter  v. 
Montgomery,  2  Tenn.  Ch.  216,  227,  228,  where  the  prevailing  English 
and  American  rule  is  very  clearly  stated.    *     *     * 

We  live  in  a  state  where  the  social  conditions,  no  less  than  the 
rapid  growth  of  our  population  and  the  constant  increase  of  similar 
family  names,  are  urgent  reasons  for  preserving  the  rule  in  its  in- 
tegrity. Identity  of  names,  religion,  and  nativity  are  too  common  to 
be  alone  sufficient  evidence  of  family  connections.  Any  extension  of 
the  hearsay  rule  in  regard  to  pedigree,  permitting  declarations  by  per- 
sons not  related  by  blood  or  marriage  to  the  person  from  whom  de- 
scent is  the  matter  in  issue,  would  open  the  door  to  frauds  and  uncer- 
tainties which  should  not  be  invited  or  encouraged. 

The  petitioner's  case,  whatever  its  merit,  fails  at  the  point  of  great- 
est importance,  because  it  lacks  the  support  of  any  evidence,  aside 
from  the  declarations  testified  to  by  him  and  his  nephews  and  nieces, 
which  tends  to  establish  his  relationship  to  Sergeant  John  Kenneally, 
and  through  him  to  the  testator  William  A.  Kenneally.  We  agree 
therefore  with  the  Appellate  Division  in  the  conclusion  that  the  peti- 
tioner has  not  proved  his  right  to  the  money  and  property  of  William 
A.  Kenneally's  estate,  now  in  the  custody  of  the  state. ^^    *    *    * 

The  order  of  the  Appellate  Division  should  be  modified  by  direct- 
ing a  new  hearing. 

28  And  so  in  Vantine  v.  Butler,  240  Mo.  521,  144  S.  W.  807,  39  L.  R.  A.  (N. 
S.)  1177  (1912),  and  cases  collected  in  note  to  principal  case,  L.  II.  A.  1915D, 
215  (1914). 

For  the  contrary  view,  see  Estate  of  Hartman.  157  Cal.  206,  107  Pac.  105, 
36  L.  R.  A.  (N.  S.)'530,  21  Ann.  Cas.  1302  (1910),  though  there  it  appears  that 
there  was  some  other  evidence  of  relationship.  The  same  thing  appears  to 
be  true  in  Sitler  v.  Gehr,  105  Pa.  577,  51  Am.  Rep.  207  (1884).  In  Jarchow 
V.  Grosse,  257  111.  36,  100  N.  E.  290,  Ann.  Cas.  1914A,  820  (1912),  it  was  held 
that,  in  case  the  declarant  was  the  person  whose  estate  was  claimed,  no  other 
evidence  of  relationship  was  necessary ;  and  so  in  Wise  v.  Wynn.  59  Miss. 
.588.  42  Am.  Rep.  381  (1882),  suggesting  that  in  such  cases  the  admissibility 
might  be  supported  on  the  theory  of  an  admission  or  a  statement  against  in- 
terest. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  C83 

IX.  Spontaneous  Statements  ^* 

(A)  As  to  a  Mental  State  2» 

TUBERVILLE  v.  SAVAGE. 

(Court  of  King's  Bench,  1G70.     1  Mod.  3.) 

Action  of  assault,  battery,  and  wounding.  The  evidence  to  prove  a 
provocation  was,  that  the  plaintiff  put  his  hand  upon  his  sword  and 
said,  "If  it  were  not  assize-time,  I  would  not  take  such  language  from 
you."    The  question  was.  If  that  were  an  assault? 

The  Court  agreed  that  it  was  not ;  for  the  declaration  of  the  plain- 
tiff was,  that  he  would  not  assault  him,  the  Judges  being  in  town ; 
and  the  intention  as  well  as  the  act  makes  an  assault.  Therefore  if 
one  strike  another  upon  the  hand,  or  arm,  or  breast  in  discourse,  it  is 
no  assault,  there  being  no  intention  to  assault ;  but  if  one,  intending 
to  assault,  strike  at  another  and  miss  him,  this  is  an  assault :  so  if 
he  hold  up  his  hand  against  another  in  a  threatening  manner  and  say 
nothing,  it  is  an  assault.  In  the  principal  case  the  plaintiff  had  judg- 
ment. 


TRELAWNEY  v.  COLEMAN. 
(Court  of  King's  Bench,  1817.     1  Barn.  &  Aid.  90.) 

In  an  action  for  adultery,  tried  before  Holroyd,  J.,  at  the  Middle- 
sex sittings  after  last  term,  letters  from  the  wife  to  the  husband  (while 
apart  from  each  other)  were  offered  in  evidence  by  the  plaintiff  to 
shew  that  they  lived  on  terms  of  mutual  affection.  It  appeared  that 
they  had  been  separated  for  six  months  only,  and  they  had  lived  to- 
gether some  months  before  the  wife  became  acquainted  with  the  de- 

24  The  phrase,  "res  gestne,"  has  quite  commonly  been  applied  to  the  various 
sorts  of  statements  treated  in  this  section,  but  tlie  usage  is  unfortunate  and 
has  led  to  much  confusion,  because  also  applied  to  the  proof  of  words  where 
no  question  of  hearsay  is  involved.  Such  a  comprehensive  phrase,  indiscrimi- 
nately invoked  to  explain  or  justify  the  admission  of  hearsay  and  that  which 
is  not  hearsay,  is  bound  to  lead  to  loose  thinking,  and  to  obscure  the  real 
problem  in  any  given  case. 

25  Various  mental  states  may  be  important  as  ultimate  facts;  that  Is,  a 
rule  of  law  may  attach  certain  consequences  to  an  act  when  done  with  a 
given  intent.  For  example,  the  asportation  of  a  chattel  with  the  proper 
wrongful  intent  amounts  to  larceny ;  and  so  the  tearing  or  burning  of  a  will 
with  intent  to  revoke  works  a  revocation.  In  such  cases  the  only  problem 
under  this  topic  is  how  far  assertions  of  such  an  intent  are  receivable  to 
prove  it.  More  frequently  it  is  sought  to  prove  a  mental  state  as  a  basis  for 
an  inference  that  an  act  was  done  or  omitted,  or  that  such  mental  state  con- 
tinued. In  such  cases  there  are  two  problems,  viz.:  Whether  such  mental 
state  is  a  proper  basis  for  the  inference  in  question ;  and,  if  so,  how  far  as- 
sertions of  such  intent,  belief,  etc.,  are  admissible  to  prove  it. 


6S4  HEARSAY  (Ch.  3 

fendant.  The  plaintiff  had  been  a  midshipman  in  the  mvy,  and  was 
a  man  in  slender  circumstances.  The  letters  were  proved  to  have  been 
written  at  the  time  they  bore  date,  and  long  before  the  wife  was  sus- 
pected of  adultery,  or  was  even  acquainted  with  the  defendant:  but 
no  direct  evidence  was  given  as  to  the  cause  of  their  living  separate 
when  the  letters  were  written:  and  Gurney  objected  that  they  could  not 
be  received.  But  Holroyd,  J.,  permitted  them  to  be  read,  and  the 
plaintiff  had  a  verdict. 

Gurney  now  moved  for  rule  nisi  for  a  new  trial,  on  the  ground 
of  these  letters  having  been  improperly  received  in  evidence. 

Lord  EllEnborough,  C.  J."^  I  have  no  doubt  that  these  letters 
were  admissible  evidence.  What  the  husband  and  wife  say  to  each 
other  is,  beyond  all  question,  evidence  to  shew  their  demeanor  and 
conduct,  whether  they  were  living  on  better  or  worse  terms:  what 
they  write  to  each  other  may  be  liable  to  suspicion ;  but  when  that  is 
cleared  up,  that  ground  of  objection  fails:  that  was  satisfactorily 
explained  in  the  present  case  by  proof  of  the  letters  being  written  at 
the  time  they  bore  date,  and  long  before  any  suspicion  of  the  wife's 
misconduct. 

Bayle^y,  J.  I  think  these  letters  were  properly  received:  when  it 
is  once  established  that  the  manner  in  which  the  husband  and  wife 
conduct  themselves  towards  each  other,  (when  together,)  is  admissible 
evidence ;  it  follows  that  letters,  which  in  absence  afford  the  only  means 
of  shewing  their  manner  of  conducting  themselves  towards  each  other, 
are  also  admissible.  There  may  indeed,  in  letters,  be  an  assumed  af- 
fection, which  does  not  actually  exist;  but  the  behaviour  of  the  par- 
ties themselves  is  open  to  the  same  objection;  for  they  may  (when 
together)  assume  an  appearance  of  affection  which  has  not  any  foun- 
dation in  truth  and  sincerity.  As  to  these  letters,  there  is  nothing  to 
raise  any  suspicion  of  collusion,  for  they  are  proved  to  have  been 
written  at  the  time  when  they  bear  date,  and  long  before  any  suspicion 
of  the  adulterous  intercourse. 

Rule  refused.-^ 

2  6  opinion  of  Abbott,  J.,  omitted. 

2  7  Compare  Willis  v.  Bernard,  8  Bing.  376  (1832),  where  In  a  similar  action 
the  wife's  letters  to  a  third  person  were  admitted  for  the  same  purpose.  In 
the  latter  case,  Tindal,  J.,  observed:  "  *  *  *  The  second  objection  is,  that 
the  letter  contains  statements  of  fact  which  could  not  with  propriety  be  sub- 
mitted as  evidence  to  a  jury,  and  might  improperly  influence  their  judgment. 
I  admit  that  the  letter  does  contain  statements  of  fact,  and  if  it  had  been 
used  as  evidence  of  those  facts,  there  ought  to  be  a  new  trial.  But  it  was 
produced  for  the  purpose  of  .showing  the  state  of  the  wife's  feelings;  the 
jury  were  cautioned  that  it  was  not  to  be  taken  as  evidence  of  the  facts,  and 
it  contains  passages  sufficient  to  show  the  general  good  feeling  of  the  wife. 
'I  wrote  yesterday  to  John  in  a  packet  that  was  sent  over  by  the  steamboat 
in  order  to  leave  New  York,  if  possible,  by  the  Pacific  the  1st  of  August,  but 
I  had  not  time  to  write  to  you  by  the  same  parcel.'  And  in  the  body  c/  the 
If'tter  she  says,  'I  earnestly  entreat  you  to  forward  this  plan  as  much  as  you 
ran,  and  thus  procure  me  one  of  the  greatest  pleasures  the  money  could  ever 
afford  me,  of  being  able  to  forward  In  any  degree,  however  trifling,  the  hap- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  685 

THOMPSON  et  al.  v.  BRIDGES  et  al. 
(Court  of  Common  Pleas,  1818.    8  Taunt.  3.36.) 

Trover  for  goods  taken  by  the  defendants,  as  sheriff  of  Middlesex, 
in  execution  under  a  fi.  fa.,  dated  the  27th  of  November,  1816.  At  the 
trial,  before  Burrough,  J.,  at  the  Middlesex  sittings  after  the  last  term, 
the  plaintiff  proved  the  trading  and  the  act  of  bankruptcy,  early  in 
November,  1816.  He  then  proved  the  petitioning  creditor's  debt,  by 
the  production  of  the  bankrupt's  acceptance  for  £105.,  in  favor  of 
Elvey,  the  petitioning  creditor.  The  counsel  for  the  defendant  stated, 
that  he  should  show  the  transaction  to  be  founded  in  fraud,  and  called 
a  witness,  who  swore  that  the  bankrupt  informed  him,  previous  to  his 
bankruptcy,  that  he  (the  bankrupt)  had  lost  a  cause  in  the  King's 
Bench ;  and  that  if  a  commission  could  be  taken  out  against  him,  it 
would  destroy  the  effect  of  the  judgment  in  that  action ;  that  the  bank- 
rupt asked  him  whether  any  person  could  not  be  made  bankrupt;  to 
which  the  witness  replied  in  the  negative,  unless  there  were  a  sufficient 
debt  due  by  the  person  to  be  made  bankrupt ;  whereupon  the  bankrupt 
said  he  did  not  owe  £10.  to  any  man,  and  -inquired  of  the  witness, 
whether,  if  the  witness  were  to  draw  a  bill  to  be  accepted  by  him  (the 
bankrupt)  the  witness  would  become  his  creditor?  Upon  the  refusal 
of  the  witness  to  draw  such  a  bill,  the  bankrupt  said  he  had  a  friend 
who  would  do  it  for  him.  This  testimony  was  corroborated.  For  the 
plaintiff  it  was  urged,  that  this  evidence  was  inadmissible;  but  Bur- 
rough,  J.,  admitted  it,  stating,  that  he  received  it  as  evidence,  for  the 
purpose  of  showing  that  there  was  a  scheme  ^^  or  contrivance  to  obtain 
a  fraudulent  commission.  The  learned  judge  told  the  jury  that  the 
cause  mainly  turned  upon  the  petitioning  creditor's  debt,  and  that  if 

piness  or  benefit  of  mv  husband.'  Surely  as  a  declaration  of  the  wife's  feel- 
ings, this  was  not  to  be  excluded.  No  doubt  it  renders  the  administration 
of  justice  more  difficult  when  evidence,  which  is  offered  for  one  purpose  or 
pel  son,  mav  incidentally  apply  to  another;  but  that  is  an  infirmity  to  which 
all  evidence  is  subject,  and  exclusion  on  such  a  ground  would  manifestly 
occasion  greater  mischief  than  the  reception  of  the  evidence." 

Compare  Holmes,  J.,  in  Buckeye  Powder  Co.  v.  Du  Pont  Powder  Co.,  248 

r.  S.  55.  39  Sup.  Ct.  38,  63  L.  Ed.  (1918) :     "  *     *     *     Several  exceptions 

were  taken  to  the  exclusion  of  statements  by  third  persons  of  their  reasons 
for  refusing  or  ceasing  to  do  business  with  the  plaintiff.  We  should  be  slow 
to  overthrow  a  judgment  on  the  ground  of  either  the  exclusion  or  admission 
of  such  statements  except  in  a  very  strong  case.  But  the  exclusion  in  this 
instance  was  proper.  The  statement  was  wanted  not  as  evidence  of  the  mo- 
tives of  the  speakers  but  as  evidence  of  the  facts  recited  as  furnishing  the 
motives.  Lawlor  v.  Loewe,  235  U.  S.  522,  536,  35  Sup.  Ct.  170,  59  L.  Ed.  341 
[1915] ;  Elmer  v.  Fessenden,  151  Mass.  359,  362,  24  N.  E.  208,  5  L.  R.  A.  724 
[1890]." 

2s  Andrews,  C.  J.,  in  Mills  v.  Lumber  Co.,  63  Conn.  103,  26  Atl.  689  (1893): 
"The  declaration  of  a  party  that  he  intends  to  do  a  certain  act,  or  pursue  a 
certain  course  of  conduct,  is  always  admissible  when  the  issue  is  whether  or 
not  the  party  making  the  declaration  did  the  act  or  followed  the  course  of 
conduct,  because  the  declaration  proves  that  those  feelings  exist  which  prompt 
the  act  or  the  conduct." 


686  HEARSAY  (Ch.  3 

ihey  should  be  of  opinion  that  the  bankrupt  gave  the  acceptance  proved, 
for  the  purpose  of  upholding  the  commission,  then  there  would  be  no 
petitioning  creditor's  debt,  observing,  that,  although  the  bankrupt 
could  not  be  called  to  destroy  the  commission,  yet  he  was  of  opinion, 
that  the  bankrupt's  declarations  were  evidence  to  show,  that  the  bank- 
rupt and  some  other  person  had  concerted  the  commission.  The  jury 
found  a  verdict  for  the  defendants.    And  now, 

Pell,  Serjt.,  moved  for  a  new  trial. 

Dallas,  J.  There  are  many  cases  where  the  declarations  of  a 
fjankrupt  are  admissible  in  evidence,  and  my  Brother  Pell  has  princi- 
pally rested  his  objection  in  this  case,  on  the  ground  that  the  declara- 
tions of  the  bankrupt  have  been  improperly  received.  But  if  the  peti- 
tioning creditor's  debt  be  founded  in  collusion,  the  commission  fails, 
and  the  evidence  received  at  the  trial,  went,  to  show  that  such  collusion 
had  existed,  and  so,  in  my  opinion,  became  part  of  the  res  gestae.  I 
tliink  that  the  evidence  was  properly  admitted  and  left  to  the  jury,  and 
ihat  they  have  come  to  a  right  conclusion  on  the  case. 

The  rest  of  the  court  concurring,  the  rule  was 

Refused. 


HADLEY  V.  CARTER. 
(Superior  Court  of  Judicature  of  New  Hampshire,  1835.     8  N.  H.  40.) 

This  was  an  action  on  the  case,  brought  against  the  defendant  for 
raticing  away  one  Andrew  Bryant,  a  hired  man  in  the  plaintiff's  employ. 

On  the  trial,  the  plaintiff  proved  that  said  Bryant  was  in  his  em- 
ploy, as  a  hired  laborer,  under  a  contract  to  work  for  a  year  for  a  cer- 
tain sum  as  wages,  and  that  previous  to  the  expiration  of  the  year  he 
left  the  employ  of  the  plaintiff;  and  the  plaintiff  offered  evidence 
tendmg  to  show  that  said  Bryant  left  through  the  advice  and  persua- 
sion of  the  defendant.     *     *     * 

In  order  to  show  that  said  Bryant  left  the  plaintiff's  employ  of  his 
own  accord  and  for  reasons  of  his  own,  the  defendant  introduced  the 
testimony  of  David  E.  Dow,  a  partner  of  the  plaintiff"  in  the  wheel- 
wright business  at  the  time,  who  gave  evidence  that  the  day  preceding 
the  night  on  which  Bryant  left,  Bryant  came  to  him  and  said  he  was  in 
trouble, — That  prior  to  his  entering  the  employ  of  the  plaintiff  he 
w^as  in  embarrassed  circumstances  and  in  the  custody  of  a  sheriff,  who 
had  a  writ  against  him, — That  for  the  purpose  of  relieving  himself  he 
forged  a  note  against  a  man  in  Sandwich  and  put  it  into  the  plaintiff's 
hands  as  security,  and  that  the  plaintiff  paid  the  debt  against  him, — 
That  it  was  agreed  that  the  plaintiff  should  keep  the  note  in  his  own 
hands,  and  that  he  should  go  to  work  for  the  plaintiff  and  pay  him, — 
That  when  he  had  worked  enough,  as  he  thought,  to  pay  the  amount, 
he  asked  for  the  note,  but  the  plaintiff  put  him  off, — That  he  had  asked 
for  it  a  number  of  times,  but  it  was  not  given  up,  and  that  the  plain- 


Sec.  2)  RECOGNIZED   EXCEPTIONS  687 

tiff  had  told  him  he  had  written  to  the  man  in  Sandwich,  and  the  an- 
swer was  that  if  he  had  such  a  note  it  was  forged.  The  witness  fur- 
ther testified  that  Bryant  said  at  the  same  time,  that  a  brother  of  the 
plaintiff  was  at  enmity  with  him,  and  had  threatened  a  prosecution,  and 
that  he  expected  service  of  it  every  hour — that  he  asked  the  witness' 
advice  if  he  had  not  better  go  and  see  the  plaintiff,  who  was  then  ab- 
sent and  spoke  of  taking  the  stage — that  in  die  evening,  the  witness 
told  him  the  defendant.  Carter,  was  going  next  day  to  Littleton,  and 
if  he  must  go  he  had  better  go  with  him — that  the  last  Bryant  said,  was 
that  he  had  concluded  to  go  with  the  defendant,  and  tlie  next  morning 
he  was  gone. 

To  the  admission  of  this  evidence  the  plaintiff  objected;  but  it  wa? 
admitted,  and  the  jury  having  returned  a  verdict  for  the  defendant, 
the  plaintiff  moved  for  a  new  trial,  because  he  was  precluded  from  in- 
troducing the  evidence  aforesaid,  to  show  that  Bryant  was  indebted  to 
him,  and  because  the  declarations  of  Bryant  were  admitted  on  the  part 
of  the  defendant.-® 

Upham,  J.  *  *  *  The  only  question  in  the  case  which  it  become? 
necessary  to  consider,  is,  whether  the  declarations  made  by  the  serv- 
ant, at  the  time  of  his  leaving  the  employ  of  the  plaintiff,  of  the  mo- 
tives which  governed  him  in  leaving,  are  admissible  as  evidence. 

The  testimony  of  the  witness  as  to  mere  declarations  of  the  servant 
could  not  certainly  be  evidence;  for  the  servant  himself  should  be 
produced,  and  proof  of  his  sayings  would  be  rejected  on  the  general 
rule  respecting  hearsay  evidence.  There  are,  however,  exceptions  to 
the  general  rule.  Where  declarations  of  an  individual  are  so  con- 
nected with  his  acts  as  to  derive  a  degree  of  credit  from  such  connec- 
tion, independently  of  the  declaration,  the  declaration  becomes  part  of 
the  transaction,  and  is  admissible  in  evidence. 

The  evidence  in  such  case  is  not  regarded  as  mere  hearsay  testimony. 
It  does  not  rest  upon  the  credit  due  to  the  declarant,  but  may  be  ad- 
mitted even  though  the  declarant  in  ordinary  cases  would  not  be  be- 
lieved upon  his  oath.  The  testimony  is  admitted  on  the  presumption, 
arising  from  experience,  that  when  a  man  does  an  act,  his  cotemporary 
declaration  accords  with  his  real  intention,  unless  there  be  some  rea- 
son for  misrepresenting  such  intention.  Its  connection  with  the  act 
gives  the  declaration  greater  importance  than  what  is  due  to  the  mere 
assertion  of  a  fact  by  a  stranger,  or  a  declaration  by  the  party  himself 
at  another  time.  It  is  part  of  the  transaction,  and  may  be  given  in  evi- 
dence in  the  same  manner  as  any  other  fact. 

In  this  instance  the  servant,  at  the  time  of  preparation  for  leaving, 
disclosed  causes  for  such  a  design,  of  a  character  strongly  implicating 
himself,  and  tending  to  negative  entirely  any  suspicion  of  intentional 
misrepresentation  of  his  true  motive.  He  communicated  this  design  in 
connection  with  the  fact  of  asking  advice  what  course  to  pursue,  and 

29  Statement  condensed  and  part  of  opinion  omitted. 


688  HEARSAY  (Ch.  3 

accompanied  his  declarations  of  the  motive  assigned,  with  the  act  of 
leaving.  The  declaration  tlien  is  so  connected  with  the  fact  as  to  give 
character  to  it,  and  the  fact  carries  with  it,  at  the  same  time,  in  the 
declaration,  evidence  of  the  motive. 

Where  it  is  necessary,  in  the  course  of  a  cause,  to  inquire  into  the 
nature  of  a  particular  act,  and  the  intention  of  the  person  who  did 
the  act,  proof  of  what  the  person  said  at  the  time  of  doing  it  is  ad- 
missible, to  shew  its  true  character.     Richardson's  N.  H.  Justice  164. 

Where  in  cases  of  bankruptcy,  the  question  is  with  what  intent  the 
party  absented  himself  from  his  house,  his  declaration,  cotemporary 
with  the  fact  of  departure,  is  evidence  to  explain  that  intention.  1 
Starkie's  Ev.  48. 

On  the  same  principle,  in  an  action  against  a  voluntary  bailee,  for 
the  loss  of  goods  by  carelessness  and  gross  negligence,  the  defendant 
may  give  in  evidence  his  own  acts  and  declarations  immediately  be- 
fore and  after  the  loss,  to  repel  the  allegation  that  the  loss  was  oc- 
casioned by  his  own  neglect,  carelessness,  and  mismanagement.  Tomp- 
kins V.  Saltmarsh,  14  Serg.  &  R.  (Pa.)  275.  See,  also,  Pool  v.  Bridges. 
4  Pick.  (Mass.)  378;  Digby  v.  Stedman,  1  Esp.  329;  Aveson  v.  Ld. 
Kinniard,  6  East,  193 ;   Price  v.  Earl  of  Torrington,  1  Salk.  285. 

We  are  of  opinion  that  the  declarations  of  the  servant,  made  in 
this  instance  in  connection  with  the  act  of  leaving,  became  part  of  the 
res  gestse,  and  are  admissible  as  being  fully  within  the  rule  applicable 
to  cases  of  that  character.    There  must,  therefore,  be 

Judgment  on  the  verdict.*" 


RAWSON  et  al.  v.  HAIGH  et  al. 

(Court  of  Common  Pleas,  1824.     2  Bing.  99.) 

In  this  cause,  which  was  tried  at  the  Guildhall  sittings,  after  Hilary 
term  last,  before  Lord  Gifford,  C.  J.,  the  plaintiff's  evidence  was  com- 
menced by  putting  in  the  commission  of  bankrupt  and  proceedings 
against  Richard  Wilkinson.  The  trading  was  thereby  substantiated, 
but  the  proof  of  the  act  of  bankruptcy  was,  as  contended  by  the  de- 
fendant's counsel,  insufficient,  and  his  lordship  reserved  that  point, 
with  liberty  for  the  defendants  to  move  for  a  nonsuit  thereon. 

The  commission  of  bankrupt  bore  date  the  6th  of  September,  1822. 

The  deposition  of  the  act  of  bankruptcy  was  dated  the  17th  Septem- 
ber, 1822,  and  was  made  by  William  Llewellyn.  After  setting  out  the 
examinant's  knowledge  of  the  bankrupt,  and  proving  his  trading  for 
the  space  of  four  years  immediately  antecedent  to  the  commission,  it 

30  And  so  In  Elmer  v.  Fessenden,  151  Mass.  359,  24  N.  E.  208,  5  L.  R.  A. 
724  (1890). 

.See,  also,  Gilchrist  v.  P.alo,  8  Watts  (I'a.)  355,  34  Am.  Dec.  4G9  (IS-ini. 
where  a  wife's  complaints  of  ill  treatment  were  admitted  to  show  her  reason 
for  leaving'  her  husband. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  689 

Stated  that  on  or  about  the'  second  of  July,  1822,  Wilkinson  had  a 
meeting  with  the  examinant  relative  to  some  accounts  in  which  Wilkin- 
son had,  as  examinant  understood  and  believed,  an  interest,  and  at 
such  meeting  an  appointment  was  made  for  the  follovving  morning  at 
eleven  o'clock,  when  the  accounts  were  to  be  produced,  and  the  busi- 
ness relating  thereto  to  be  finished.  That  on  the  morning  of  the  3d  of 
July  examinant  went  to  Wilkinson's  lodgings,  where  the  appoint- 
ment was  to  be  kept,  when,  instead  of  meeting  with  Wilkinson,  ex- 
aminant received  from  Wilkinson's  brother  a  note,  (marked  B,)  and 
two  or  three  days  after,  examinant  received  from  Wilkinson  a  letter 
(marked  C.)  The  examinant  then  deposed  to  the  signature  of  Wilkin- 
son to  the  letter,  (marked  A,)  and  concluded  with  stating  his  belief, 
that  Wilkinson  did  not  attend  to  the  appointment  in  consequence  of 
his  apprehension  that  a  writ  had  been  or  was  about  to  be  issued  against 
him. 

The  note  marked  B  was  from  Wilkinson  to  Llewellyn,  and  after 
alluding  to  Wilkinson's  sudden  departure,  proceeded,  "A  letter  from 
Paris,  on  urgent  business  is  the  cause.  I  shall  be  back,  I  hope,  in 
ten  days :  in  the  mean  time  I  shall  make  proposals  to  your  son's 
creditors,  and  trust  on  my  return  to  find  all  settled;"  and  then  in  a 
postscript,  "I  will  write  immediately  to  Messrs.  R.  and  S.  at  Bristol, 
so  do  not  feel  uneasy  about  them  or  any  of  your  son's  friends ;  my 
brother  will  deliver  you  your  account  current  with  your  son." 

The  letter  marked  C  was  also  from  R.  Wilkinson  to  Llewellyn,  dated 
Calais,  4th  July,  1822,  and  was  as  follows :  "My  brother  will  show 
the  letters  I  have  written  from  Bristol  and  Yorkshire:  I  hope  you 
will  approve  of  them.  If  you  could  accompany  him  in  the  rounds 
which  he  is  going  to  make,  you  would  contribute  to  get  the  business 
settled  a  moment  the  sooner,  and  then  your  account  current  can  be  ar- 
ranged in  two  hours  between  us.  I  am  so  much  tired  with  writing  that 
I  can  hardly  keep  my  head  up,  so  you  must  excuse  brevity,  particu- 
larly as  I  have  to  go  ofif  to-night  for  Paris." 

The  letter  marked  A  was  from  R.  Wilkinson,  dated  Paris,  the  2d  of 
August,  1822,  addressed  to  Messrs.  W.  and  J.  B.  Sedgwick,  and  the 
following  extract  alone  bore  on  this  case :  "as  some  of  Mr,  W.  B. 
Llewellyn's  creditors  have  threatened  to  make  me  solely  responsi- 
ble, I  am  under  the  necessity  of  remaining  in  France,  apprehensive 
that  some  lawsuit,  or  even  arrest,  may  be  instituted  against  me,  and 
which  would  ruin  all  my  hopes  and  expectations  for  hereafter ;  I 
therefore  feel  myself  under  the  necessity  of  requesting  of  them  all 
a  declaration,  that  no  arrest  or  lawsuit  shall  be  put  in  force  against 
me;  and  I  trust,  gentlemen,  you  will  have  no  objection  to  grant  me 
the  same,  being  perfectly  convinced  that  a  personal  interview  will  do 
more  towards  the  settling  of  Mr.  Llewellyn's  concerns  than  can  be 
done  by  correspondence." 
ITiNT.Ev. — 44 


090  HEARSAY  (Ch.  3 

The  act  of  bankruptcy  relied  on,  was  the  departing  the  realm  with 
intent  to  defraud  or  delay  creditors.  A  verdict  having  been  found  for 
the  plaintiffs, 

Vaughan,  Serjt.,  obtained  a  rule  nisi  to  set  it  aside,  and  enter  a 
nonsuit  instead. 

Best,  C.  J.  It  appears  from  the  learned  judge's  report  to  have 
been  left  to  the  jury  to  determine  whether  or  no  Wilkinson  had  com- 
mitted an  act  of  bankruptcy ;  if  so,  the  only  point  for  us  to  determine 
is,  whether  evidence  was  adduced  of  such  an  act.  The  words  of  the 
statute,  13  Eliz.  c.  7,  s.  1,  are,  "If  any  merchant— shall  depart  the 
realm — or  otherwise — absent  himself — to  the  intent  or  purpose  to  de- 
fraud or  hinder  any  of  his  creditors — he  shall  be  reputed,  deemed,  and 
taken  for  a  bankrupt."  It  is  not  necessary  for  us  to  decide,  whether, 
if  a  party  leaves  the  realm  with  one  purpose,  and  afterwards  stays 
away  with  another,  namely,  to  defraud  his  creditors,  such  a  staying 
away  would  be  an  act  of  bankruptcy,  because,  upon  the  evidence  be- 
fore us,  I  am  clearly  of  opinion  that  Wilkinson  departed  the  realm 
with  intent  to  hinder  his  creditors.  In  the  letter  of  the  3d  of  July, 
which  he  left  at  his  lodgings  at  the  time  of  his  departure,  and  which 
was  addressed  to  a  person  who  had  had  a  meeting  with  him  rel- 
ative to  some  accounts  in  which  he  was  interested,  after  speaking 
of  his  sudden  absence,  he  says,  "In  the  mean  time  I  shall  make 
proposals  to  your  son's  creditors,"  and  "I  will  write  immediate- 
ly to  Messrs.  R.  and  S.,  so  do  not  feel  uneasy  about  them,  or  any  of 
your  son's  friends :"  Was  not  this  letter  of  itself  sufficient  to  raise  sus- 
picion? But  in  a  letter  dated  the  very  next  day  from  Calais,  he  says, 
"If  you  could  accompany  my  brother  in  the  rounds  which  he  is  go- 
ing to  make,  you  would  contribute  to  get  the  business  settled  a  moment 
the  sooner,  and  then  your  account  current  can  be  arranged  in  two 
hours  between  us."  Does  not  this  letter  show  that  he  was  embar- 
rassed in  his  affairs,  and  that  he  departed  because  he  apprehended  his 
creditors  would  act  hostilely?  Then  comes  the  third  letter  from  Paris, 
in  which  he  says,  "As  some  of  Mr.  W.  B.  Llewellyn's  creditors  have 
threatened  to  make  me  solely  responsible,  I  am  under  the  necessity  of 
remaining  in  France."  Now,  when  these  letters  are  coupled  with  the 
fact  of  his  running  away  in  a  hurry,  would  not  a  jury  be  warranted  in 
finding  that  he  went  to  avoid  his  creditors?  If  so,  there  has  been  a 
clear  act  of  bankruptcy. 

But  it  has  been  urged,  that  the  second  and  third  letters  having  been 
written  subsequently  to  the  act  of  departing  the  realm,  were  not  ad- 
missible in  evidence:  I  am  clear  that  they  were  admissible.  The  go- 
ing abroad  was  of  itself  an  equivocal  act,  and  where  an  act  is  equiv- 
ocal, we  must  get  at  the  motive  with  which  it  was  committed.  In 
ninety-nine  cases  out  of  a  hundred,  this  can  only  be  got  at  by  the  dec- 
larations of  the  party  himself.  The  present,  therefore,  is  an  exception 
to  the  rule  which  says,  that  a  party  shall  not  make  himself  a  bankrupt 


Sec.  2)  RECOGNIZED  EXCEPTIONS  691 

by  his  own  declarations.    It  is  true,  this  exception  must  be  taken  sub- 
ject to  Hmitations;   a  Hne  must  be  drawn;   and  it  is  clear  that  a  party 
must  not  be  enabled  to  avail  himself  of  declarations  made  at  a  time 
long  subsequent  to  the  act  in  question.     The  declarations,  in  order  to ,' 
be  admissible,  must  be  made,  or  the  letters  written,  at  the  time  of  the| 
act  in  question;    but  it  is  sufficient  if  they  are  written  at  any  time[ 
during  the  continuance  of  the  act;   the  departing  the  realm  is  a  contin- 
uing act,  and  these  letters  were  written  during  its  continuance.     If  | 
there  was  an  intention  to  hinder  creditors,  it  is  not  necessary  that  they 
should  actually  have  been  hindered,  or  even  have  called  and  been  de- 
nied.    The  jury,  therefore,  were  warranted  in  the  finding  they  have 
come  to,  and  the  present  rule  must  be  discharged. 

Park,  J.  I  do  not  enter  into  the  question,  whether  the  act  of  merely 
departing  the  realm  is,  unexplained,  an  act  of  bankruptcy ;  but  I  am 
satisfied  that  declarations  made  during  departure  and  absence  are  ad- 
missible in  evidence  to  show  the  motive  of  the  departure.  It  is  im- 
possible to  tie  down  to  time  the  rule  as  to  the  declarations :  we  must 
judge  from  all  the  circumstances  of  the  case:  we  need  not  go  the 
length  of  saying,  that  a  declaration  made  a  month  after  the  fact  would 
of  itself  be  admissible;  but  if,  as  in  the  present  case,  there  are  con- 
necting circumstances,  it  may,  even  at  that  time,  form  part  of  the  whole 
res  gestae.  I  was  present  at  the  trial  of  Bateman  v.  Bailey,  5  T.  R. 
512,  and  the  learned  judge  who  presided  thought  that  declarations  made 
subsequently  to  the  act  were  within  the  rule  which  excludes  the  bank- 
rupt from  proving  his  own  act  of  bankruptcy:  but  the  Court  of  King's 
Bench  held  otherwise,  and  sent  the  case  down  for  a  new  trial,  because 
there  might  be  no  other  means  of  getting  at  the  motives  which  occa- 
sioned the  act  in  question.  The  declarations,  however,  must  be  con- 
nected with  the  state  of  the  party's  mind  at  the  time,  and  in  the  pres- 
ent instance  I  think  the  connection  sufficiently  clear  for  the  admission 
of  the  letters. 

BuRROUGH,  J.  I  was  a  commissioner  of  bankrupts  many  years,  and 
I  should  have  had  no  doubt  on  letters  such  as  these. 

Rule  discharged. 


INHABITANTS  OF  SALEM  v.  INHABITANTS  OF  LYNN. 
(Supreme  Judicial  Court  of  Massachusetts,  1847.     13  Mete.  544.) 

Assumpsit  to  recover  the  expenses  incurred  by  the  plaintiffs  in  sup- 
porting a  pauper  whose  settlement  was  alleged  to  be  in  the  town  of 
Lynn. 

At  the  trial  in  the  court  of  common  picas,  before  Wells,  C  J.,  the 
plaintiffs  undertook  to  prove  that  the  pauper  gained  a  settlement  hi 
Lynn,  under  the  Rev.  St.  c.  45,  §  1,  by  her  husband's  residing  there 
for  the  space  of  ten  years  together,  and  paying  all  taxes  duly  assessed 
on  him  for  five  of  those  years.     It  was  in  evidence  that  her  husband. 


092  HEARSAY  (Ch.  3 

William  Stanwood,  removed  from  Lynn  to  Marblehead,  where  he  re- 
mained about  four  months,  and  then  returned  to  Lynn ;  and  the  ques- 
tion was  submitted  to  the  jury,  whether  said  William  thus  removed 
from  Lynn  with  an  intention  of  returning  thereto.  See  Billerica  v. 
Chelmsford,  10  Mass.  396.  To  prove  such  intention,  the  defend- 
ants offered  to  show  his  statements,  made  immediately  after  his  return 
to  Lynn.  But  the  judge  ruled  that  the  inquiry  must  be  confined  to 
such  declarations  as  were  made  by  said  Stanwood  after  he  had  formed 
the  intention  of  removing  from  Lynn,  at  and  about  the  time  of  his 
said  removal,  and  while  remaining  in  Marblehead ;  and  the  judge  ex- 
cluded the  defendants'  question  as  to  the  declarations  of  said  Stanwood 
after  he  had  returned  to  Lynn, 

The  jury  found  a  verdict  for  the  plaintiffs,  and  tlie  defendants  al- 
leged exceptions  to  the  said  rulings. 

Dewey,  J.  The  proposed  evidence  of  the  declarations  of  Stanwood 
was  clearly  incompetent.  The  declarations  of  a  party  to  an  act  are, 
under  proper  limitations,  competent  evidence  to  show  the  intention  of 
such  party,  in  reference  to  such  act.  If  made  at  the  same  time  with 
the  act,  they  may  be  considered  as  a  part  of  the  res  gestae,  and  so  ad- 
missible. Somewhat  greater  latitude  is  allowed,  in  reference  to  the 
time  of  making  such  declarations,  where  the  question  relates  to  tlie 
domicil  of  the  party  .at  a  particular  period.  Tlie  cases  of  Thorndiko 
v.  City  of  Boston,  1  Mete.  242,  and  Kilburn  v.  Bennett,  3  Mete.  199, 
cited  by  the  defendants'  counsel,  were  unlike  the  present,  and  do  not 
furnish  any  authority  to  sustain  the  exceptions  to  the  ruling  of  the 
court  of  common  pleas.  The  declarations,  proposed  to  be  offered  in 
evidence  here,  were  not  made  by  a  party  while  doing  any  act,  but 
were  a  recital  of  past  transactions  and  past  purposes.  They  were  not 
explanatory  of  an  act  about  to  be  done,  nor  made  in  reference  to  any 
future  action ;  but  they  were  merely  declarations  in  relation  to  a  past 
transaction,  and  they  fell  clearly  within  the  ruling  of  this  court,  in  the 
case  of  Haynes  v.  Rutter,  24  Pick.  242. 

Exceptions  overruled. 


31 


CAMPBELL  v.  PEOPLE. 

(Supreme  Court  of  Illinois,  1854.    16  111.  17,  61  Ara.  Dec.  49.) 

Caton,  J.^^  The  plaintiff  in  error,  who  is  a  negro,  was  indicted  for 
the  murder  of  Goodwin  Parker.  The  evidence  in  the  case  tends  ver>' 
strongly  to  show  that  the  deceased  made  an  assault  upon  the  prisoner, 
and  that  the  homicide  was  committed  in  necessary  self-defense.  It  ap- 
pears that  the  deceased  and  three  others  went  to  seek  the  prisoner  at 

81  Soe  Vlles  v.  Waltham,  157  Mass.  542,  32  N.  E.  901,  34  Am.  St.  Rep.  31i 
(180.''.),  for  a  more  extended  discussion  of  the  question;  Matter  of  Newcomb. 
192  N.  Y.  238,  84  N.  E.  9.j0  (1908). 

»2  Part  of  opinion  omitted. 


Sec.  2)  ,      RECOGNIZED  EXCEPTIONS  693 

his  father's  house,  in  the  night  time.  The  deceased  went  to  the  door 
of  the  house,  leaving  his  companions  thirty  or  forty  yards  back,  to 
whom  he  was  to  give  warning  if  Campbell  was  in  the  house.  Shortly 
after  the  deceased  went  to  tlie  door,  he  called  to  the  others  to  come  on, 
and  informed  them  that  the  negro  was  there.  They  rushed  up,  when 
the  deceased  and  the  prisoner  were  seen  some  distance  from  the  house, 
engaged  together,  and  there  the  deceased  was  stabbed,  and  died  in  a 
few  minutes.  When  the  deceased  went  to  the  house,  he  had  a  hatchet 
in  his  hands,  which  was  found  near  the  spot  where  he  was  killed ;  and 
after  the  negro  was  committed  to  jail,  a  wound  was  observed  upon  his 
head  which  penetrated  to  the  skull,  and  which  appeared  to  have  been 
made  with  a  hatchet,  an  axe  or  a  hammer.  There  was  no  pretense  that 
there  was  any  sort  of  justification  or  legal  cause  for  arresting  or  as- 
saulting the  prisoner. 

Upon  the  trial,  the  defense  offered  to  prove  that  on  that  day,  and  at 
other  times  shortly  before  his  death,  the  deceased  had  made  threats 
against  the  prisoner.  This  evidence  the  court  ruled  out,  and  an  excep- 
tion was  taken.  In  this  the  court  unquestionably  erred,  although  they 
may  never  have  come  to  the  knowledge  of  the  defendant  till  after  the 
homicide  was  committed.  If  the  deceased  had  made  threats  against 
the  defendant,  it  would  be  a  reasonable  inference  that  he  sought  him 
for  the  purpose  of  executing  those  threats  and  thus  they  would  serve 
to  characterize  his  conduct  towards  the  prisoner  at  the  time  of  their 
meeting,  and  of  the  affray.  If  he  had  threatened  to  kill,  maim,  or  dan- 
gerously beat  the  defendant,  it  would  be  a  fair  inference,  especially  so 
long  as  the  evidence  shows  that  he  had  a  hatchet  in  his  hands,  that  he 
had  attempted  to  accomplish  his  declared  purpose,  and  if  so,  then  the 
prisoner  was  justified  in  defending  himself,  even  to  the  taking  of  the 
life  of  his  assailant,  if  necessary.  While  the  tlireats,  of  themselves, 
could  not  have  justified  the  prisoner  in  assailing  and  killing  the  de- 
ceased, they  might  have  been  of  the  utmost  importance  in  connection 
with  the  other  testimony,  in  making  out  a  case  of  necessary  self- 
defense.  The  evidence  offered  was  proper,  and  should  have  been  ad- 
mitted.    *     *     * 

Judgment  reversed.'* 

83  And  so  in  Wiggins  v.  Utah,  93  U.  S.  465,  23  L.  Ed.  941  (1876). 

Compare  the  treatment  of  the  same  problem  in  McMillen  v.  State,  1"  Mo. 
30  (1S50),  where  threats  made  shortly  before  the  difficulty  were  excluded  as 
not  being  a  part  of  the  res  gestae.  In  State  v.  Sloan,  47  Mo.  604  (1871),  a 
series  of  threats  were  thought  to  be  so  connected  as  to  make  them  a  part  of 
the  transaction.  In  State  v.  Elkins,  63  Mo.  159  (1876),  the  res  gestae  notion 
appears  to  have  been  abandoned:  "When  threats  by  the  person  killed  should 
be  admitted  in  evidence  or  rejected,  is  a  question  involved  in  a  great  deal 
of  doubt  and  uncertainty.  If  they  have  been  made  a  long  time  antecedent  to 
the  commission  of  the  act,  they  may  be  not  only  valueless  but  entirely  in- 
admissible. The  relations  of  the  parties  may  have  since  entirely  changed, 
and  in  the  intervening  time  the  person  making  them  may  have  wholly  aban- 
doned any  previously  conceived  Intention  of  harming  the  person  against  whom 
they  were  uttered.    It  is  impossible  to  lay  down  any  general  rule  on  the  sub- 


694  HEARSAY  (Ch.  3 

WHITELEY  V.  KING  et  al. 
(Court  of  Common  Pleas,  1SG4.     17  C.  B.  [N.  S.]  756.) 

This  was  an  action  of  ejectment  brought  by  the  plaintiff,  the  grand- 
son and  heir-at-law  of  one  John  Whiteley,  to  recover  certain  lands  in 
the  county  of  York,  which  were  claimed  by  the  defendants  as  dev- 
isees under  a  will  made  by  John  Whiteley  on  the  6th  of  December, 
1859,  and  a  codicil  dated  the  17th  of  December,  1861. 

The  w^ill,  which  revoked  all  former  wills,  was  not  to  be  found  at 
the  death  of  the  testator;  but  a  draft  was  produced  by  one  Sutcliffe, 
the  attorney  who  prepared  it,  and  in  whose  custody  it  had  remained 
down   to   December,    1861. 

The  cause  was  tried  before  Blackburn,  J.,  at  the  last  Summer  As- 
sizes at  Leeds.  It  appeared  that,  at  that  time,  the  testator  was  de- 
sirous of  making  some  alteration  in  his  will,  and  wrote  to  Sutcliffe 
requesting  him  to  let  him  have  the  will,  and  giving  him  instructions 
for  a  codicil  thereto ;  that  Sutcliffe  accordingly  went  to  him  with  the 
will  and  codicil ;  that  the  testator  executed  the  codicil ;  that  Sutcliffe 
was  requested,  either  by  the  testator  or  by  one  of  his  daughters  who 
was  present  to  leave  them  with  the  testator ;  that  he  did  so ;  and 
that  he  saw  no  more  of  them :  nor  did  it  appear  that  they  had  ever 
been  seen  by  any  one  since.     The  testator  died  in  1863. 

In  order  to  rebut  the  presumption  arising  from  the  absence  of  the 
will  and  codicil,  that  the  testator  had  destroyed  them,  evidence  was 
offered  on  the  part  of  the  defendants,  of  repeated  declarations  made 
by  the  testator  to  different  members  of  his  family,  down  to  a  short 
period  before  his  death,  expressing  his  satisfaction  at  having  settled 
his  affairs,  and  telling  one  person  that  he  had  named  him  one  of  his 
executors,  and  another  that  his  will  was  at  Sutcliffe's. 

This  evidence  was  objected  to  on  the  part  of  the  plaintiff,  but  ad- 
mitted by  the  learned  judge  on  the  authority  of  Patten  v.  Poulton,  1 
Swab.  &  Trist.  55,  27  Law  J.  Probate,  41,  where  it  was  held  by  Sir 
C.  Cresswell  that  the  presumption  that  a  will  left  in  the  keeping  of 
the  testator,  if  it  cannot  be  found  at  his  death,  has  been  destroyed  by 
him  animo  revocandi,  is  a  presumption  of  fact  which  prevails  only  in 
the  absence  of  circumstances  to  rebut  it ;  and  that  among  such  cir- 
cumstances are  declarations  by  the  testator  of  goo<4  will  towards  the 
persons  benefited  by  it,  adherence  to  the  will,  as  made,  and  the  con- 
tents of  the  will  itself :  and  he  left  it  to  the  jury  to  say  whether  or 
not  the  testator  had  destroyed  the  will  and  codicil  animo  revocandi. 

The  jury  found  that  the  will  had  not  been  revoked,  and  according- 
ly the  verdict  was  entered  for  the  defendants. 

ject.     Their  relevancy,  admission  or  rcjoction,  depends  materially  upon   the 
c-Jrfnimstances  sniTdniulinc  o:ifh  iiarticuliir  case." 

In  State  v.  Whitsctt,  li.32  Mo.  r,-[\.  ]:>,}  S.  W.  ij.^^  (1910),  the  same  court,  in 
dealing  with  the  question  of  threats  made  by  a  defendant,  thoufiht  that  their 
remoteness  In  point  of  time  affected  their  welirht.  but  not  tlicir  adinissll)ility. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  695 

Kemplay  now  moved  for  a  new  trial  on  the  ground  that  the  declara- 
tions of  the  testator  were  not  admissible.  *  *  *  That  the  missing 
will  was  intentionally  destroyed  is  a  presumption  of  fact  which  it 
requires  strong  evidence  to  rebut.  [ErlE,  C.  J.  Surely  you  may 
look  at  a  man's  words  to  see  what  his  intentions  are.  The  question 
here  was  whether  the  testator  had  the  intention  to  destroy  his  will 
and  codicil.  Down  to  the  last  moment  almost  of  his  life  he  is  found 
declaring  his  satisfaction  that  he  has  settled  his  affairs.]  Declara- 
tions accompanying  an  act,  no  doubt,  are  admissible.  But  mere  loose 
conversations  deposed  to  b)'  interested  persons  ought  not  to  outweigh 
the  presumption  arising  from  the  absence  of  the  document. 

Erle,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule  in  this 
case.  The  non-appearance  of  the  will  and  codicil  raising  a  presump- 
tion of  fact  that  the  testator  intended  to  revoke  them,  evidence  tend- 
mg  to  prove  the  contrary  intention  was  admissible.  For  this  pur- 
pose the  ordinary  channels  of  information  may  be  resorted  to.  The 
declarations  of  the  testator  are  cogent  evidence  of  his  intentions.  In 
this  case  his  repeated  declarations  down  to  within  a  very  few  days 
of  his  death,  were  abundant  evidence  that  the  testator  did  not  intend 
to  cancel  or  destroy  the  will.  He  on  several  occasions  expressed  his 
satisfaction  that  he  had  "settled  his  affairs,"  and  on  one  occasion  said 
that  he  had  left  his  will  with  Air.  Sutcliffe.  If  declarations  are  evi- 
dence of  intention, — as  the  cases  cited  show  they  are, — there  was 
abundant  evidence  to  satisfy  the  jury  here  that  the  testator  had  no  in- 
tention to  cancel  or  revoke  the  will  and  codicil,  and  consequently  the 
verdict  was  properly  found  for  the  defendants. 

BylES,  J.  I  am  of  the  same  opinion.  I  see  no  reason  why  the 
declarations  of  the  testator  should  not  be  admitted  as  part  of  his  con- 
duct, to  show  his  intentions  as  to  the  disposition  of  his  property. 

Keating,  J.  I  am  of  the  same  opinion.  I  think  it  would  be  wrong 
to  cast  a  doubt  upon  a  well-established  rule  of  law  by  granting  a  rule. 

Rule  refused.^* 


DODGE  v.  BACHE. 
(Supreme  Court  of  Pennsylvania,  1S68.    57  Pa.  421.) 

This  was  an  action  on  the  case,  by  John  N.  Bache  against  Wil- 
liam E.  Dodge  and  others,  commenced  May  4,  1860,  to  recover  for  the 
loss  of  a  quantity  of  logs,  belonging  to  the  plaintiff,  alleged  to  have 
been  carried  away  by  a  freshet  occasioned  by  the  opening  of  a  dam 
of  the  defendant.  The  case  was  tried  before  Streeter,  P.  J.,  of  the 
Thirteenth  Judicial  District. 

34  And  so  in  Sugden  v.  St.  Leonard's.  1  P.  D.  154  (1S76). 
For  a  collection  of  the  modem  American  cases  on  this  point,  see  note  to  In 
re  Francis.  50  L.  R.  A.  (N.  S.)  861,  loc.  cit.  867  et  seq.  (1913). 


t)96  HEARSAY  (Ch.3 

The  plaintiff  gave  evidence  that  the  defendants  carried  on  the  lum- 
bering business  at  jManchester  Mills  on  Pine  creek  and  at  other  mills 
on  Marsh  creek,  which  empties  into  Pine  creek.  The  dam  was  built 
across  Marsh  creek  and  was  raised  about  four  feet  above  the  dam 
proper  by  slash-boards ;  that  W.  W.  McDougall  was  the  general  agent 
of  the  defendants  in  the  summer  or  fall  of  1855,  had  come  in  1853  and 
left  in  1856 ;  he  gave  evidence  further  that  he  had  logs  in  the  stream 
below  the  defendants'  dam  which  had  been  carried  away  by  a  rise  in 
the  stream;  also  evidence  tending  to  show  that  the  rise  was  occa- 
sioned by  the  cutting  of  the  slash-boards  of  defendants'  dam.  A 
witness  of  plaintiff  testified  that  he  had  driven  some  of  the  plaintiff's 
logs  to  the  boom  at  Williamsport,  where  he  got  them  sawed  for  the 
plaintiff,  that  there  were  about  170,000  feet  sawed.  The  principal 
question  was  whether  the  boards  had  been  cut  by  McDougall,  the 
agent  of  the  defendants.  A  witness  testified  that  she  had  seen  Mc- 
Dougall and  Charles  Grinnell  go  together  to  the  mill  and  saw  Grinnell 
on  the  dam  with  an  axe  apparently  chopping  something ;  that  it  was 
in  December,  1855,  that  McDougall  and  Grinnell  were  thus  seen  on 
the  dam ;  there  was  evidence  that  the  dam  was  cut  in  the  fall  or  winter 
of  1855. 

The  plaintiffs  then  offered  to  prove  by  Ezra  Chandler,  "that  some 
time  in  the  fall  and  winter  of  1855,  and  before  the  dam  was  let  off, 
McDougall  told  the  witness  that  he  wanted  the  witness  to  put  in 
some  logs  that  were  lying  at  the  Strap  Mill,  that  were  scattered  along 
the  edge  of  the  creek  at  a  former  floating,  and  said  he  was  going  to 
float  them  through  to  the  Manchester  Mills  before  the  creek  froze 
up ;  and  said  he  was  going  to  cut  the  slash  at  the  Marsh  creek  pond 
to  float  them  through,  and  that  the  logs  were  so  put  in  by  him  for 
that  purpose." 

The  defendants  objected,  that  declarations  of  an  agent  were  not 
evidence  against  the  principal  unless  made  at  the  time  the  act  was 
done;  and  that  a  principal  is  not  to  be  affected  by  the  declarations 
of  an  agent  as  to  his  intentions.  The  evidence  was  admitted  and 
a  bill  of  exceptions  sealed.^' 

The  opinion  of  the  court  was  delivered,  March  19,  1868,  by 

Sharswood,  J.  The  first  error  assigned  is  as  to  the  admission  of 
the  testimony  of  Ezra  Chandler.  One  of  the  questions  in  the  cause,  if 
not  the  principal  one,  was  whether  McDougall,  the  agent  of  the  de- 
fendants, had  cut  the  slash-boards  of  the  dam  at  the  Marsh  creek 
pond,  by  which  an  artificial  freshet  was  caused  in  the  stream  below, 
and  the  plaintiff's  logs  were  carried  away  and  lost.  It  was  offered 
to  prove  by  Cliandler  that  McDougall  had  declared  that  he  intended 
to  do  this,  before  the  dam  was  let  off.  It  was  objected  to  on  the 
ground  that  such  declaration  of  the  agent  was  no  part  of  the  res 
gestae,  and,  therefore,  upon  the  familiar  and  well-settled  rule  of  evi- 

»6  Statement  condensed  and  part  of  opinion  oiniftcd. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  697 

dence,  not  admissible  against  his  principal.  But  clearly  this  rule  had 
no  application.  The  declaration  was  offered  not  as  in  itself  affect- 
ing the  principal,  but  in  corroboration  of  the  other  testimony  in  the 
cause  that  McDougall  and  Charles  Grinnell,  his  workman,  were  seen 
to  go  to  the  mill  together — that  Grinnell  soon  after  was  observed  on 
the  dam  with  an  axe  and  that  he  appeared  to  be  chopping  something. 
Now,  when  the  question  is  whether  a  person  has  done  a  particular 
thing,  and  some  evidence  of  it  has  been  given,  it  is  surely  competent 
to  show  in  corroboration  that  he  had  avowed  his  purpose  before- 
hand. His  principals  would  not  have  been  affected  by  his  mere  inten- 
tions unexecuted.  But  to  confirm  other  evidence  of  the  act  itself, 
his  declarations  were  unquestionably  admissible — not  as  the  declara- 
tions of  an  agent  but  of  the  individual  whose  act  was  in  question.  We 
think,  therefore,  that  there  was  no  error  in  the  admission  of  this 
evidence.     *     *     * 

Judgment  reversed  (on  other  grounds). 


MUTUAL  LIFE  INS.  CO.  v.  HILLMON. 

(Supreme  Court  of  the  United  States,  1891.     145  U.  S.  285,  12  Sup.  Ct.  909, 

36  L.  Ed.  706.) 

This  case  came  up  on  a  writ  of  error  to  review  a  judgment  of  the 
Circuit  Court  in  favor  of  the  plaintiff'  in  an  action  on  a  life  insurance 
policy. 

Mr.  Justice  Gray  ^^  (after  holding  that  error  had  been  committed  in 
limiting  the  challenges  to  jurors).  *  *  *  There  is,  however,  one 
question  of  evidence  so  important,  so  fully  argued  at  the  bar,  and  so 
likely  to  arise  upon  another  trial  that  it  is  proper  to  express  an  opinion 
upon  it. 

This  question  is  of  the  admissibility  of  the  letters  ^^  written  by  Wal- 
ters on  the    first  days  of  March,  1879,  which  were  offered  in  evidence 

38  Statement  and  part  of  opinion  omitted. 
8T  The  following  are  the  letters  in  question: 

"Wichita,  Kansas, 
"March  4th  or  5th  or  3d  or  4th— I  don't  know— 1879. 
"Dear  sister  and  all:  I  now  in  my  usual  style  drop  you  a  few  lines  to  let 
you  know  that  I  expect  to  leave  Wichita  on  or  about  March  the  5th.  with  a 
certain  Mr.  Hillmon,  a  sheep-trader,  for  Colorado  or  parts  unknown  to  me. 
I  expect  to  see  the  country  now.  News  are  of  no  interest  to  you.  as  you  are 
not  acquainted  here.  I  will  close  with  compliments  to  all  inquiring  friends. 
Love  to  all. 

"I  am  truly  your  brother, 

"Fred.  Adolph  Walters." 

Another  letter  was  dated  "Wichita,  March  1,  1879,"  was  signed  by  Walters, 
and  began  as  follows: 

"Dearest  Alvina:  Your  kind  and  ever  welcome  letter  was  received  yester- 
day afternoon  about  an  hour  before  I  left  Emporia.  I  will  stay  here  until  the 
fore  part  of  next  week,  and  then  will  leave  here  to  see  a  part  of  the  country 
that  I  never  expected  to  see  when  I  left  home,  as  I  am  going  with  a  man  by 


698  HEARSAY  (Ch.  3 

by  the  defendants,  and  excluded  by  the  court.  In  order  to  determine 
the  competency  of  these  letters  it  is  important  to  consider  the  state  of 
the  case  when  they  were  offered  to  be  read. 

The  matter  chiefly  contested  at  the  trial  was  the  death  of  John  W. 
Hillmon,  the  insured;  and  that  depended  upon  the  question  whether 
the  body  found  at  Crooked  creek  on  the  night  of  March  18,  1879,  was 
his  body  or  the  body  of  one  Walters. 

Much  conflicting  evidence  had  been  introduced  as  to  the  identity  of 
the  body.  The  plaintiff  had  also  introduced  evidence  that  Hillmon 
and  one  Brown  left  Wichita,  in  Kansas,  on  or  about  March  5,  1879,  and 
traveled  together  through  southern  Kansas  in  search  of  a  site  for  a 
cattle  ranch ;  and  that  on  the  night  of  March  18th,  while  they  were  in 
camp  at  Crooked  creek,  Hillmon  was  accidentally  killed,  and  that  his 
body  was  taken  thence  and  buried.  The  defendants  had  introduced 
evidence,  without  objection,  that  Walters  left  his  home  and  his  be- 
trothed in  Iowa  in  March,  1878,  and  was  afterwards  in  Kansas  until 
March,  1879;  that  during  that  time  he  corresponded  regularly  with 
his  family  and  his  betrothed ;  that  the  last  letters  received  from  him 
were  one  received  by  his  betrothed  on  March  3d,  and  postmarked  at 
"Wichita,  March  2,''  and  one  received  by  his  sister  about  March  4th 
or  5th,  and  dated  at  Wichita  a  day  or  two  before ;  and  that  he  had  not 
been  heard  from  since. 

The  evidence  that  Walters  was  at  Wichita  on  or  before  March  5th, 
and  had  not  been  heard  from  since,  together  with  the  evidence  to  iden- 
tify as  his  the  body  found  at  Crooked  creek  on  March  18th,  tended  to 
show  that  he  went  from  Wichita  to  Crooked  creek  between  those  dates. 
Evidence  that  just  before  March  5th  he  had  the  intention  of  leaving 
Wichita  with  Hillmon  would  tend  to  corroborate  the  evidence  already 
admitted,  and  to  show  that  he  went  from  Wichita  to  Crooked  creek 
with  Hillmon.  Letters  from  him  to  his  family  and  his  betrothed  were 
the  natural,  if  not  the  only  attainable,  evidence  of  his  intention. 

The  position  taken  at  the  bar  that  the  letters  were  competent  evi- 
dence within  the  rule  stated  in  Nicholls  v.  Webb,  8  Wheat.  326,  337, 
5  L.  Ed.  628,  as  memoranda  made  in  the  ordinary  course  of  business, 
cannot  be  maintained,  for  they  were  clearly  not  such. 

But  upon  another  ground  suggested  they  should  have  been  admit- 
ted. A  man's  state  of  mind  or  feeling  can  only  be  manifested  to  oth- 
ers by  countenance,  attitude,  or  gesture,  or  by  sounds  or  words,  spoken 
or  written.    The  nature  of  the  fact  to  be  proved  is  the  same,  and  evi- 

the  name  of  Hillmon,  who  intends  to  start  a  sheep  ranch,  and  as  he  promised 
me  more  wages  than  I  could  make  at  anything  else  I  concluded  to  take  it,  for 
a  while  at  least,  until  I  strike  something  better.  There  is  so  many  folks  in 
this  country  that  have  got  the  lyoadville  fever,  and  if  I  could  not  of  got  the 
situation  that  I  have  now  I  would  have  wont  there  myself;  hut  as  it  is  at 
l)re.sent  I  get  to  see  the  host  porliuns  of  Kansas,  Indian  Teriitory,  Colorado, 
and  Mexico.  The  route  that  we  intend  to  take  would  cost  a  man  to  travel 
from  $150  to  $200,  but  it  will  not  cost  me  a  cent;  besides.  I  get  good  wages. 
I  will  droi)  you  a  letter  occasionally  until  1  get  settled  down;  then  I  want 
j'ou  to  answer  it," 


Sec.  2)  RECOGNIZED   EXCEPTIONS  699 

dence  of  its  proper  tokens  is  equally  competent  to  prove  it,  whether 
expressed  by  aspect  or  conduct,  by  voice  or  pen.  When  the  intention 
to  be  proved  is  important  only  as  qualifying  an  act,  its  connection  with 
that  act  must  be  shown,  in  order  to  warrant  the  admission  of  declara- 
tions of  the  intention.  But  whenever  the  intention  is  of  itself  a  dis- 
tinct and  material  fact  in  a  chain  of  circumstances,  it  may  be  proved 
by  contemporaneous  oral  or  written  declarations  of  the  party. 

The  existence  of  a  particular  intention  in  a  certain  person  at  a  cer- 
tain time  being  a  material  fact  to  be  proved,  evidence  that  he  expressed 
that  intention  at  that  time  is  as  direct  evidence  of  the  fact  as  his  own 
testimony  that  he  then  had  that  intention  would  be.  After  his  death 
there  can  hardly  be  any-  other  way  of  proving  it,  and  while  he  is  still 
alive  ^^  his  own  memory  of  his  state  of  mind  at  a  former  time  is  no 
more  likely  to  be  clear  and  true  than  a  bystander's  recollection  of 
what  he  then  said,  and  is  less  trustworthy  than  letters  written  by  him 
at  the  very  time  and  under  circumstances  precluding  a  suspicion  of  mis- 
representation. 

The  letters  in  question  were  competent,  not  as  narratives  of  facts 
communicated  to  the  writer  by  others,  nor  yet  as  proof  that  he  ac- 
tually went  away  from  Wichita,  but  as  evidence  that,  shortly  before 
the  time  when  other  evidence  tended  to  show  that  he  went  away,  he 
had  the  intention  of  going,  and  of  going  with  Hillmon,  which  made  it 
more  probable  both  that  he  did  go  and  that  he  went  with  Hillmon  than 
if  there  had  been  no  proof  of  such  intention.  In  view  of  the  mass  of 
conflicting  testimony  introduced  upon  the  question  whether  it  was  the 
body  of  Walters  that  was  found  in  Hillmon's  camp,  this  evidence 
might    properly  influence  the  juiT"  in  determining  that  question. 

The  rule  applicable  to  this  case  has  been  thus  stated  by  this  court: 
"Wherever  the  bodily  or  mental  feelings  of  an  individual  are  material 
to  be  proved,  the  usual  expressions  of  such  feelings  are  original  and 
competent  evidence.  Those  expressions  are  the  natural  reflexes  of 
what  it  might  be  impossible  to  show  by  other  testimony.  If  there  be 
such  other  testimony,  this  may  be  necessary  to  set  the  facts  thus  de- 
veloped in  their  true  light,  and  to  give  them  their  proper  effect.  As 
independent,  explanatory,  or  corroborative  evidence  it  is  often  indis- 
pensable to  the  due  administration  of  justice.     Such  declarations  are 

3  8  Holmes,  J.,  in  Elmer  v.  Fessenden,  151  Mass.  359,  24  N.  E.  208,  5  L.  R.  A. 
724  (ISDO):  "*  *  *  If,  as  may  be  assumed,  the  excluded  testimony  would 
have  shown  that  the  workmen  when  they  left  gave  as  their  reason  to  the  su- 
perintendent that  the  defendant  had  told  them  that  the  board  of  health  re- 
ported arsenic  in  the  silk,  the  evidence  was  admissible  to  show  that  their  be- 
lief in  the  presence  of  poison  was  their  reason  in  fact.  Lund  v.  Tynsj;s1x)rough, 
9  Cush.  36,  41,  43  [1851] ;  Aveson  v.  Kinnaird,  6  East,  18S,  193  [1805J  ;  Iladley 
V.  Carter,  8  N.  H.  40,  43  [18.35];  United  States  v.  Penn,  13  Nat.  Baukr.  R.  464. 
467.  Fed.  Cas.  No.  16,025  [1876].  We  cannot  follow  the  ruling  at  nisi  prius 
in  Tilk  v.  Parson,  2  C.  &  P.  201  [1825].  that  the  testimony  of  the  persons  con- 
cerned is  the  only  evidence  to  prove  their  motives.  We  rather  agree  with  Mr. 
Starkie,  that  such  declarations  made  with  no  apparent  motive  for  misstate- 
ment may  be  better  evidence  of  the  maker's  state  of  mind  at  the  time,  than 
the  subsequent  testimony  of  the  same  persons.    Stark.  Ev.  (lOth  Am.  ed.)  89." 


700  HEARSAY  (Ch.  3 

regarded  as  verbal  acts,  and  are  as  competent  as  any  other  testimony, 
when  relevant  to  the  issue.  Their  truth  or  falsity  is  an  inquiry  for  the 
jury."  Insurance  Co.  v.  Mosley,  8  Wall.  397,  404,  405,  (19  L.  Ed. 
437). 

In  accordance  with  this  rule,  a  bankrupt's  declarations,  oral  or  by 
letter,  at  or  before  the  time  of  leaving  or  staying  away  from  home,  as 
to  his  reason  for  going  abroad,  have  always  been  held  by  the  English 
courts  to  be  competent,  in  an  action  by  his  assignees  against  a  creditor, 
as  evidence  tliat  his  departure  was  with  intent  to  defraud  his  creditors, 
and  therefore  an  act  of  bankruptcy.  Bateman  v.  Bailey,  5  Term.  R. 
512 ;  Rawson  v.  Haigh,  9  J.  B.  Moore,  217,  2  Bing.  99 ;  Smith  v.  Cram- 
er, 1  Scott,  541,  1  Bing.  N.  C.  585. 

The  highest  courts  of  New  Hampshire  and  Massachusetts  have  held 
declarations  of  a  servant,  at  the  time  of  leaving  his  master's  service,  to 
be  competent  evidence,  in  actions  between  third  persons,  of  his  reasons 
for  doing  so.  Hadley  v.  Carter,  8  N.  H.  40;  Elmer  v.  Fessenden,  151 
Mass.  359,  24  N.  E.  208,  5  L.  R.  A.  724.  And  the  supreme  court  of 
Ohio  has  held  that,  for  the  purpose  of  proving  that  a  person  was  at  a 
railroad  station  intending  to  take  passage  on  a  train,  previous  decla- 
rations made  by  him  at  the  time  of  leaving  his  hotel  were  admissible. 
Railroad  Co.  v.  Herrick,  49  Ohio  St.  25,  29  N.  E.  1052.  See,  also, 
Jackson  v.  Boneham,  15  Johns.  (N.  Y.)  226;  Gorham  v.  Canton,  5 
Greenl.  (Me.)  266,  17  Am.  Dec.  231;  Kilburn  v.  Bennett,  3  Mete. 
(Mass.)  199;  Lund  v.  Tyngsborough,  9  Cush.  (Mass.)  36. 

In  actions  for  criminal  conversation,  letters  by  the  wife  to  her  hus- 
band or  to  third  persons  are  competent  to  show  her  aftection  towards 
her  husband,  and  her  reasons  for  living  apart  from  him,  if  written  be- 
fore any  misconduct  on  her  part,  and  if  there  is  no  ground  to  suspect 
collusion.  Trelawney  v.  Colman,  2  Stark.  191,  and  1  Barn.  &  Aid.  90; 
WilUs  V.  Bernard,  5  Car.  &  P.  342,  and  1  Moore  &  S.  584,  8  Bing.  376; 
1  Greenl.  Ev.  §  102.  So  letters  from  a  husband  to  a  third  person, 
showing  his  state  of  feeling,  affection,  and  sympathy  for  his  wife,  have 
been  held  by  this  court  to  be  competent  evidence,  bearing  on  the  validity 
of  the  marriage,  when  the  legitimacy  of  their  children  is  in  issue. 
Gaines  v.  Relf,  12  How.  472,  520,  534,  13  L.  Ed.  1071. 

Even  in  the  probate  of  wills,  which  are  required  by  law  to  be  in 
writing,  executed  and  attested  in  prescribed  forms,  yet,  where  the 
validity  of  a  will  is  questioned  for  want  of  mental  capacity,  or  by  rea- 
son of  fraud  and  undue  influence,  or  where  the  will  is  lost,  and  it  be- 
comes necessary  to  prove  its  contents,  written  or  oral  evidence  of  dec- 
larations of  the  testator  before  the  date  of  the  will  has  been  admitted, 
in  Massachusetts  and  in  England,  to  show  his  real  intention  as  to  the 
disposition  of  his  property,  although  there  has  been  a  difference  of 
opinion  as  to  the  admissibility,  for  such  purposes,  of  his  subsequent 
declarations.  Shailer  v.  Bumstcad,  99  Mass.  112;  Sugden  v.  St.  Leon- 
ards, 1  Prob.  Div.  154;  Woodward  v.  Goulstone,  11  App.  Cas.  469,  478,. 
484,486.     ♦     ♦     * 


Sec.  2)  RECOGNIZED   EXCEPTIONS  701 

Upon  principle  and  authority,  therefore,  we  are  of  opinion  that  the/ 
two  letters  were  competent  evidence  of  the  intention  of  Walters  atl 
the  time  of  writing  them,  which  was  a  material  fact  bearing  upon  the 
question  in  controversy ;  and  that  for  the  exclusion  of  these  letters,  as 
well  as   for  the  undue  restriction  of  the  defendants'  challenges,  the 
verdicts  must  be  set  aside,  and  a  new  trial  had.    *    *    ♦ 

Judgment  reversed. 


THROCKMORTON  v.  HOLT. 

(Supreme  Court  of  the  United  States.  1900.     180  U.  S.  552,  21  Sup.  Ct.  474, 

45  L.  Ed.  663.) 

This  was  a  proceeding  in  the  supreme  court  of  the  District  of  Colum- 
bia for  the  purpose  of  proving  an  alleged  will  of  the  late  Joseph  Holt, 
a  distinguished  lawyer  and  for  many  years  Judge  Advocate  General  of 
the  United  States  Army,  who  died  at  the  age  of  eighty-seven,  in  Wash- 
ington on  August  1,  1894,  after  a  residence  of  many  years  in  that 
city.  The  proceeding  resulted  in  the  rejection  of  the  paper  on  the 
ground  that  it  was  not  the  will  of  Judge  Holt  but  was  a  forged  docu- 
ment, and  judgment  refusing  probate  was  entered  upon  the  verdict  of 
the  jury.  The  proponents  of  the  will  appealed  to  the  court  of  appeals 
of  the  District,  but  before  the  appeal  was  brought  on  for  argument 
Miss  Hynes,  one  of  the  legatees  named  in  the  will,  withdrew  her  ap- 
peal. The  judgment  of  the  supreme  court  upon  the  appeal  of  the 
other  proponents  was  subsequently  affirmed  by  the  court  of  appeals, 
and  the  proponents  of  the  paper,  excepting  Miss  Hynes,  have  brought 
the  case  here  by  writ  of  error,^" 

Peckham,  j,  *  *  *  'j^j^g  ^^Q  points  above  indicated  in  which  we 
think  the  trial  court  fell  into  error  require  the  reversal  of  this  judgment 
and  the  granting  of  a  new  trial,  but  there  are  other  questions  in  the  case 
which  are  fully  presented  by  the  record,  and  which  have  been  most 
ably  and  exhaustively  argued  by  counsel  on  both  sides.  These  questions 
will  necessarily  arise  at  the  very  threshold  of  the  case  when  it  comes 
on  for  trial  again,  and  we  think  it  is  our  duty  to  express  our  views  in 
relation  to  them.  They  relate  to  certain  evidence  upon  the  issues  of 
forgery  and  revocation. 

And  first,  as  to  forgery.  The  paper  in  question  was  propounded  as 
the  will  of  Joseph  Holt. 

The  facts  set  forth  in  the  statement  prefixed  to  this  opinion  show  the 
case  to  be  one  of  an  extraordinary  nature.  There  being  no  proof  in 
regard  to  the  history  or  whereabouts  of  the  paper  before  it  was  re- 
ceived by  the  register  of  wills,  and  the  evidence  pro  and  con  as  to  its 
genuineness  having  been  received  upon  the  trial,  the  question  arises  as 
to  the  admissibility  of  the  various  declarations  of  the  deceased,  and 


8»  Statement  condensed  and  part  of  opinion  omitted. 


702    "  HEARSAY  (Ch.  3 

also  of  his  letters  to  different  relatives  living  in  Kentucky  and  otlier 
states,  which  it  is  claimed  tend  to  show  the  improbability  of  the  deceased 
making  such  a  disposition  of  his  property  as  is  made  in  the  paper  in 
controversy.  (They  are  referred  to  in  the  statement  of  facts  above 
given.)  The  question  is,  in  other  words.  Can  the  contestants  prove 
by  unsworn  oral  declarations  and  by  letters  of  the  deceased  facts  from 
which  an  inference  is  sought  to  be  drawn  that  the  disposition  of  the 
property  as  made  in  the  paper  is  improbable,  and  that  the  paper  was 
therefore  a  forgery?  The  decisions  of  the  state  courts  as  to  the  ad- 
missibility of  this  kind  of  evidence  are  not  in  accord.  Many  of  them 
are  cited  in  the  margin.*"  Those  included  in  class  A  favor  the  exclu- 
sion of  such  evidence,  while  those  in  class  B  favor  its  admission. 
The  principle  of  exclusion  was  favored  by  Chancellor  Kent,  and  also 
by  Justices  Washington,  Story,  Livingston,  and  Thompson,  all  of 
v/hom  once  occupied  seats  upon  the  bench  of  this  court. 

The  cases  cited  in  the  two  classes  do  not  all,  or  even  a  majority  of 
them,  deal  with  the  question  of  forgery,  but  many  of  them  treat  the 
subject  of  declarations  of  a  deceased  person  upon  a  principle  which 
would  admit  or  exclude  them  in  a  case  where  forgery  was  the  issue. 
It  is  not  possible  to  comment  upon  each  of  the  cases  cited  in  these 
lists,  without  unduly  extending  this  opinion.  We  can  only  refer  to  the 
two  classes  generally,  and  state  what  we  think  are  the  questions  de- 
cided by  them. 

40  Class  A.  Bovlan  v.  Meeker.  28  N.  J.  Law,  274 ;  Rusling  v.  Rusliug,  36 
N.  J.  Eq.  603;  Gordon's  Case,  50  N.  J.  Eq.  397,  424,  26  Atl.  268;  Hayes  v. 
West,  37  Ind.  21 ;  Kennedy  v.  Upshaw,  64  Tex.  411 ;  Mooney  v.  Olsen,  22 
Kan.  69;  Tlionipson  v.  UpdegrafE,  3  W.  Va.  629;  Couch  v.  Eastham,  27  W. 
Va.  796,  55  Am.  Rep.  346;  Dinges  v,  Branson,  14  W.  Va.  100;  Gibson  v. 
Gibson,  24  Mo.  227 ;  Cawthorn  v.  Haynes,  24  Mo.  236 ;  Walton  v.  Kendrick, 
122  Mo.  504,  25  L.  R.  A.  701,  27  S.  W,  872;  Comstock  v.  Hadlyme  Ecclesi- 
astical Soc,  8  Conn.  254,  263,  20  Am.  Dec.  100 ;  Shailer  v.  Bumstead,  99  Mass. 
112 ;  Lane  v.  Moore,  151  Mass.  87,  23  N.  E.  828,  21  Am.  St.  Rep.  430 ;  Robin- 
son V.  Hutchinson,  26  Vt.  38,  60  Am.  Dec.  298;  where  the  evidence  was  re- 
ceived, but  the  inquiry  was  as  to  mental  capacity,  the  testatrix  being  greatly 
broken  and  enfeebled  in  mind  and  capacity  and  of  advanced  age ;  Jackson 
ex  dem.  Coe  v.  Kniffen,  2  Johns.  (N.  Y.)  31,  3  Am.  Dec.  390 ;  Jackson  ex  dem. 
Brown  v.  Betts,  6  Cow.  (N.  Y.)  377;  Waterman  v.  Whitney,  11  N.  Y.  157, 
62  Am.  Dec.  71,  citing  many  cases;  .Johnson  v.  Hicks,  1  Lans.  (N.  Y.)  150; 
Marx  V.  McGlynn,  88  N.  Y.  357;  Leslie  v.  McMurt.ry,  60  Ark.  301,  30  S.  W. 
.33 ;  Den  ex  dem.  Stevens  v.  Vancleve,  4  Wash.  C.  C.  262,  Fed.  Cas.  No.  13,- 
412;  Provis  v.  Reed,  5  Bing.  4.35;  1  Redf.  Wills,  4th  ed.  pp.  556,  557;  Gil- 
lett,  Ev.  §  281 ;    Schouler,  Wills,  3d  ed.  §  317a. 

Class  B.  Turner  v.  Hand,  3  Wall,  Jr.,  88,  92,  107.  Fed.  Cas.  No.  14,257; 
Johnson  v.  Brown,  51  Tex.  65 ;  Swope  v.  Donnelly,  190  Pa.  417,  42  Atl.  SS2, 
70  Am.  St.  Rep.  637;  Taylor  Will  Case,  decided  by  .surrogate  of  New  York 
county,  10  Abb.  Prac.  (N.  S.)  .300,  300.  This  case  was  reversed  sub  nom. 
Ilowliind  V.  Tavlor,  in  the  court  of  appeals  on  a  question  of  fact,  but  no 
opinion  is  reported;  53  N.  Y.  627;  Davis  v.  Elliott,  55  N.  J.  Eq.  473,  36  Atl. 
1092;  claimed  by  respondents  to  be  adverse  to  Boylan  v.  Meeker,  which  is 
not  referred  to,  ncitlier  is  the  question  itself  discussed,  although  evidence 
of  this  nature  seems  to  have  been  received,  without  objection;  Hoppe  v. 
Byors,  60  Md.  381;  Burge  v.  Hamilton,  72  Ca.  568,  624;  Sugdeu  v.  St.  Leon- 
ards, L.  R.  1  Prob.  Div.  154;  Coliagan  v.  P.urns,  57  Me.  449,  by  an  equally 
divided  court;    1  Pliljllin.,  Eccl.  Rep.  447-160. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  703 

In  the  cases  contained  in  class  A,  it  is  lield  that  declarations,  either 
oral  or  written,  made  by  a  testator,  either  before  or  after  the  date  of 
the  alleged  will,  unless  made  near  enough  to  the  time  of  its  execution 
to  become  a  part  of  the  res  gestae,  are  not  admissible  as  evidence  in 
favor  of  or  against  the  validity  of  the  will.  The  exception  *^  to  the 
rule  as  admitted  by  these  cases  is  that  where  the  issue  involves  the 
testamentary  capacity  of  the  testator,  and  also  when  questions  of  undue 
influence  over  a  weakened  mind  are  the  subject  of  inquiry,  declarations 
of  the  testator  made  before  or  after,  and  yet  so  near  to  the  time 
of  the  execution  of  the  will  as  to  permit  of  the  inference  that  the  same 
state  of  mind  existed  when  the  will  was  made,  are  admissible  for  the 
purpose  of  supporting  or  disproving  the  mental  capacity  of  the  testa- 
tor to  make  a  will  at  the  time  of  the  execution  of  the  instrument  pro- 
pounded as  such.  These  declarations  are  to  be  admitted,  not  in  any 
manner  as  proof  of  the  truth  of  the  statements  declared,  but  only  for 
the  purpose  of  showing  thereby  what  in  fact  was  the  mental  condition, 
or,  in  other  words,  the  mental  capacity,  of  the  testator  at  the  time 
when  the  instrument  in  question  was  executed. 

The  cases  contained  in  class  B  favor  generally  the  admission  of  dec- 
larations of  the  deceased  made  under  similar  conditions  in  which 
declarations  are  excluded  by  the  cases  in  class  A. 

If  declarations  of  the  character  now  under  consideration  are  admis- 
sible, when  made  prior  to  the  execution  of  the  alleged  will,  although 
not  after  it,  then  a  large  part  of  the  evidence  in  this  case  as  to  the 
oral  and  written  declarations  of  the  deceased  was  properly  admitted 
upon  the  issue  of  forgery,  because  such  declarations  may  have  all  been 
made  before  the  forgery  was  executed,  the  date  of  the  paper  not  fur- 
nishing any  evidence  of  the  time  when  it  was  in  fact  prepared.  The 
forger  could  not  be  permitted,  by  giving  a  date  to  the  instrument,  to 
fix  the  time  subsequent  to  which  the  declarations  should  be  excluded. 

But  we  see  no  good  ground  for  the  distinction.  The  reasons  for  ex- 
cluding them  after  the  date  of  the  will  are  just  as  potent  when  they 
were  made  prior  thereto.  When  made  prior  to  the  will,  it  is  said  they 
indicate  an  intention  as  to  a  testamentary  disposition  of  property 
thereafter  to  be  made,  and  that  such  declarations  may  be  corroborative 
of  the  other  testimony  as  to  what  is  contained  in  the  will,  as  is  said  by 

41  For  the  use  of  statements  to  prove  delusions  or  other  mental  derange- 
ment, see  Shailer  v.  Bumstead,  99  Mass.  112  (ISGS) ;  Waterman  v.  Whitney. 
11  N.  Y.  157,  62  Am.  Dec.  71  (1854).  It  is  sometimes  said  that  in  such  cases 
there  is  no  hearsay  use  of  the  statements,  but  this  is  hardly  accurate.  In 
case  of  an  allejied' delusion,  obviously  no  attempt  is  made  to' establish  the 
txuth  of  the  fact  directly  asserted,  but  quite  the  contrary;  yet  the  evidence 
would  be  wholly  unavailin?:;  to  establish  a  delusion  except  on  the  hyitothesis 
that  the  speaker  believed  his  statement  to  be  true;  the  evidence  that  he  so 
believed  is  the  implication  contained  in  an  apparently  serious  statement.  If 
the  proposition  to  be  established  is,  that  T.  believed  a  palpable  absurdity, 
his  assertion  in  terms  of  his  belief  would  clearly  be  classed  as  hearsay.  The 
implied  assertion  of  his  belief  in  another  form  of  statement  does  not  seem 
suthciently  different  to  exclude  it  from  the  hearsay  class. 


'704  HEARSA.Y  (Ch.  3 

Mellish,  L.  J.  in  Sugden  v.  St.  Leonards,  L.  R.  1  Prob.  DIv.  154,  251  " 
(a  case  of  a  lost  will),  or  else  they  indicate  the  feeling  of  the  deceased 
towards  his  relatives,  from  which  an  inference  is  sought  that  a  testa- 
mentary provision  not  in  accordance  with  such  declarations  wovild 
be  forged.  The  declarations  are,  however,  unsworn  in  either  case,  and 
if  they  are  inadmissible  on  that  ground  when  made  subsequent  to  the 
execution  of  the  will,  they  would  be  also  inadmissible  when  made 
prior  to  its  execution.  In  Den  ex  dem.  Stevens  v.  Vancleve,  4  Wash. 
C.  C.  262,  265,  Fed.  Cas.  No.  13,412,  Mr.  Justice  Washington  said 
that  declarations  of  the  deceased,  prior  or  subsequent  to  the  execution 
of  the  will,  were  nothing  more  than  hearsay,  and  there  was  nothing 
more  dangerous  than  their  admission,  either  to  control  the  construc- 
tion of  the  instrument  or  to  support  or  destroy  its  validity.  Judge 
Pennington  concurred  in  those  views. 

After  much  reflection  upon  the  subject,  we  are  inclined  to  the  opin- 
ion that  not  only  is  the  weight  of  autliority  with  the  cases  which  ex- 
clude the  evidence  both  before  and  after  the  execution,  but  the  prin- 
ciples upon  which  our  law  of  evidence  is  founded  necessitate  thai  ex- 
clusion. The  declarations  are  purely  hearsay,  being  merely  unsworn 
declarations,  and  when  no  part  of  the  res  gestae  are  not  within  any 
of  the  recognized  exceptions  admitting  evidence  of  that  kind.  Al- 
though in  some  of  the  cases  the  remark  is  made  that  declarations  are 
admissible  which  tend  to  show  the  state  of  the  affections  of  the  deceased 
as  a  mental  condition,  yet  they  are  generally  stated  in  cases  where  the 
mental  capacity  of  the  deceased  is  the  subject  of  the  inquiry,  and  in 
those  cases  his  declarations  on  that  subject  are  just  as  likely  to  aid 
in  answering  the  question  as  to  mental  capacity  as  those  upon  any 
other  subject.  But  if  the  matter  in  issue  be  not  the  mental  capacity 
of  the  deceased,  then  such  unsworn  declarations,  as  indicative  of  the 
state  of  his  affections,  are  no  more  admissible  than  would  be  his  un- 
sworn declarations  as  to  any  other  fact. 

When  they  are  not  a  part  of  the  res  gestae,  declarations  of  this  na- 
ture are  excluded  because  they  are  unsworn,  being  hearsay  only,  and 
where  they  are  claimed  to  be  admissible  on  the  ground  that  they  are 
said  to  indicate  the  condition  of  mind  of  the  deceased  with  regard  to 
his  affections,  they  are  still  unsworn  declarations,  and  they  cannot  be 
admitted  if  other  unsworn  declarations  are  excluded.    In  other  words, 

•♦2  For  such  a  use  of  a  testator's  statements,  that  is,  as  indicating  his  in- 
tention as  a  basis  for  an  Inference  that  it  was  probably  carried  out  in  the 
will,  see  Doe  v.  Palmer,  16  Q.  B.  747  (1851).  The  main  point  discussed  in 
the  Sugden  Case  was  the  use  of  statements  by  the  testator  as  to  how  he  had 
disposed  of  his  property,  etc.,  as  evidence  to  prove  the  contents  of  a  lost 
will,  or  at  least  to  corroborate  other  evidence  of  the  contont.s,  and  this  use 
was  sanctioned.  Some  doubt  was  thrown  on  this  feature  of  the  case  l)y  the 
carefully  guarded  opinions  in  Woodward  v.  (Joulstone,  11  A.  C.  409  (H.  of  L. 
1880).  The  Sugden  Case  has  been  followed  in  a  number  of  recent  American 
cases.  Griffith  v.  Illglnbotom,  202  111.  120,  104  N.  E.  2rW,  Ann.  Cas.  ini.lB, 
250  (1014);  Mann  v.  r.alf(jur,  1S7  Mo.  200,  80  S.  W.  10:J  (1005);  Clark  v. 
Turner,  50  Neb.  290,  69  N.  W.  843,  38  L.  R.  A.  433  (1897). 


Sec.  2)  RECOGNIZED  EXCEPTIONS  705 

there  is  no  ground  for  an  exception  in  favor  of  the  admissibility  of 
declarations  of  a  deceased  person  as  to  the  state  of  his  affections, 
when  the  mental  or  testamentary  capacity  of  the  deceased  is  not  in 
issue.  When  such  an  issue  is  made,  it  is  one  which  relates  to  a  state 
of  mind  which  was  involuntary  and  over  which  the  deceased  had  not 
the  control  of  the  sane  individual,  and  his  declarations  are  admitted, 
not  as  any  evidence  of  their  truth  but  only  because  he  made  them,  and 
that  is  an  original  fact  from  which,  among  others,  light  is  sought  to 
be  reflected  upon  the  main  issue  of  testamentary  capacity.  The  truth 
or  falsity  of  such  declarations  is  not  important  upon  such  an  issue  (un- 
less that  for  the  purpose  of  showing  delusion  it  may  be  necessary  to 
give  evidence  of  their  falsity),  but  the  mere  fact  that  they  were  uttered 
may  be  most  material  evidence  upon  that  issue.  The  declarations  of 
the  sane  man  are  under  his  control,  and  they  may  or  may  not  reflect  his 
true  feelings,  while  the  utterances  of  the  man  whose  mind  is  impaired 
from  disease  or  old  age  are  not  the  result  of  reflection  and  judgment, 
but  spontaneous  outpourings  arising  from  mental  weakness  or  de- 
rangement. The  diflference  between  the  two,  both  as  to  the  manner 
and  subject  of  the  declarations,  might  be  obvious.  It  is  quite  apparent 
therefore  that  declarations  of  the  deceased  are  properly  received  upon 
the  question  of  his  state  of  mind,  whether  mentally  strong  and  capable 
or  weak  and  incapable,  and  that  from  all  the  testimony,  including  his 
declarations,  his  mental  capacity  can  probably  be  determined  with  con- 
siderable accuracy.  Whether  the  utterances  are  true  or  false  cannot 
be  determined  from  their  mere  statement,  and  they  are  without  value 
as  proof  of  their  truth,  whether  made  by  the  sane  or  insane,  because 
they  are  in  either  case  unsworn  declarations.     *     *     * 

If  not  admissible  generally,  it  is  as  we  think  inadmissible  even  as 
merely  corroborative  of  the  evidence  denying  the  genuine  character  of 
the  handwriting.  It  is  open  to  the  same  objection  in  either  case  as 
merely  unsworn  declarations  or  hearsay. 

We  are  therefore  of  opinion  that  the  court  below  erred  in  admitting 
this  evidence  upon  the  issue  of  forgery,  and  that  the  error  was  of  a 
most  important  and  material  nature.     *     *     ♦ 

Judgment  reversed.*^ 

Mr.  Justice  Harlan,  Mr.  Justice  White,  and  Mr.  Justice  McKen- 
NA  agreed  with  the  opinion  only  upon  the  first  and  second  grounds 
discussed  and  dissented  from  the  others. 

Mr.  Justice  Brown  concurred  in  the  result. 

*3  Contra:  State  v.  Ready,  7S  N.  J.  Law,  599,  75  Atl.  564,  28  L.  R.  A.  (N.  S.) 
240  (1910),  forgerj'  of  a  will. 

For  the  use  of  testator's  declarations  to  rebut  a  charge  of  fraud  or  uudue 
influence,  see  Conipher  v.  Browning,  219  lU.  429,  76  N.  E.  678,  109  Am.  S^ 
Rep.  346  (1906). 

HiNT.Ev. — 45 


TOR  HEARSAY  (Ch.  3 


GREENACRE  v.  FILBY  et  al. 

(Supreme  Court  of  Illiuois,  1916.    276  111.  291,  114  N.  E.  536,  L.  R.  A. 

1918A,  231.) 

Cartwrigbt,  J.**  The  defendant  in  error,  Louise  C.  Greenacre, 
recovered  judgment  for  $3,065  and  costs  in  the  circuit  court  of  Kane 
county  against  the  plaintiffs  in  error,  Otto  F.  Filby  and  Adolph  J. 
VViest,  keepers  of  dramshops  at  Hinckley,  in  De  Kalb  county,  and  the 
Aurora  Brewing  Company,  owner  of  the  premises  where  the  dram- 
shops were  kept,  for  injuries  to  her  means  of  support  by  the  death 
of  her  husband,  Frank  Greenacre,  alleged  to  have  been  caused  by  his 
intoxication.  The  Appellate  Court  for  the  Second  District  affirmed 
the  judgment,  and  the  record  has  been  brought  to  this  court  by  writ 
of  certiorari. 

Frank  Greenacre,  the  husband  of  the  plaintiff,  was  a  buyer  and 
shipper  of  live  stock  at  Hinckley,  in  De  Kalb  county.  At  about  11 :52 
in  the  night  of  November  15,  1913,  the  "Oriental  Limited,"  a  fast 
passenger  train  of  the  Burlington  Railroad,  which  did  not  stop  at 
Hinckley,  passed  through  the  village  going  west,  and  as  the  train  was 
going  around  a  curve  east  of  the  depot  the  engineer  saw  Greenacre 
lying  across  the  track.  The  engine  was  a  short  distance  away,  so 
that  it  was  impossible  to  stop  the  train  and  Greenacre  was  run  over 
and  killed.  The  questions  of  fact  in  dispute  at  the  trial  were  whether 
Greenacre  was  so  intoxicated  as  to  be  unable  to  exercise  care  and 
caution  for  his  own  safety,  and  whether  he  was  on  the  track  in  con- 
sequence of  such  intoxication  or  went  upon  the  track  with  the  inten- 
tion of  committing  suicide.  These  questions  were  determined  by  the 
judgment  of  the  Appellate  Court  unless  prejudicial  error  was  com- 
mitted by  the  trial  court.    *    *    * 

The  defendants  offered  witnesses  to  testify  to  declarations  of  Green- 
acre at  different  times  during  the  two  years  before  his  death  as  tend- 
ing to  prove  an  intention  to  commit  suicide  at  the  time  he  was  killed, 
for  the  purpose  of  showing  that  he  was  on  the  railroad  track  with  a 
suicidal  intention.  The  witnesses  were  examined  out  of  the  presence 
of  the  jury,  and  their  testimony  was  rejected.    *     *    * 

The  argument  against  the  ruling  of  the  court  is,  that  the  circum- 
stances proved  were  such  that  Greenacre  might  have  been  on  the 
track  either  in  consequence  of  his  intoxicated  condition  or  with  an 
intention  to  commit  suicide,  and  that  his  declarations,  made  at  dif- 
ferent times  before  that,  were  admissible  as  proof  that  he  then  had 
an  intention  to  commit  suicide.  It  is  true  that  the  state  of  mind  of  a 
person,  like  the  state  or  condition  of  the  body,  is  a  fact  to  be  proved 
like  any  other  fact,  whenever  it  is  relevant  to  the  issue  to  be  tried. 
It  is  necessarily  shown  by  some  external  manifestation;  cither  by  an 
appearance  of  anger,  fear,  hatred,  or  some  other  mental  emotion,  or 

**  Part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  707 

some  declaration  showing  the  fact.  If  the  offered  testimony  of  dec- 
larations made  by  Greenacre  at  other  times,  neither  connected  with  or 
explanatory  of  any  act  nor  preliminary  to  or  in  preparation  for  any 
act,  was  admissible  as  proof  of  an  intention  to  commit  suicide  at  the 
time  he  was' killed,  then  it  was  a  legitimate  means  of  proof  to  show 
what  Greenacre  said  about  it.  On  the  question  here  presented  this 
court,  in  Siebert  v.  People,  143  111.  571,  32  N.  E.  431,  upon  a  full 
consideration  of  the  question  and  authorities,  adopted  the  rule  that 
declarations  of  a  deceased  person  that  he  had  intended  to  take  his  own 
life,  when  not  a  part  of  the  res  gestae  nor  accompanied  by  any  act 
which  they  might  serve  to  explain  and  which  do  not  characterize  any 
transaction,  are  not  admissible  in  evidence. 

It  is  argued  that  the  decision  in  the  Siebert  Case  as  to  the  admissi- 
bility of  the  evidence  was  caused  or  influenced  by  the  fact  that  the 
arsenic  found  in  the  stomach  of  the  deceased  was  administered  at  a 
time  when  it  was  impossible  for  him  to  procure  or  take  it  himself. 
That  fact  was  considered  by  the  court  on  the  issue  of  fact,  but,  of 
course,  it  did  not  determine  the  admissibility  of  evidence,  and  the  legal 
question  whether  the  evidence  was  competent  was  stated  by  the  court 
and  determined  upon  a  full  consideration  of  the  authorities  and  the 
law.  The  court  adopted  the  rule  of  Commonwealth  v.  Felch,  132 
Mass.  22,  although  it  was  said  that  the  decision  had  been  overruled 
in  Commonwealth  v.  Trefethen,  157  Mass.  185,  31  N.  E.  961,  24  L- 
R.  A.  235.  The  decision  in  the  Siebert  Case  was  indorsed  in  How- 
ard v.  People,  185  111.  552,  57  N.  E.  441,  where  it  was  held  that  there 
was  no  error  in  excluding  conversations  with  the  deceased  as  to  when, 
where,  and  by  whom  the  act  causing  her  death  was  committed.  It  is 
true  that  the  questions  called  for  answers  tending  to  prove  the  fact  in 
controversy,  but  that  is  equally  true  of  the  evidence  offered  in  this 
case.  The  argument  for  its  admission  is  that  the  declarations  were 
so  related  to  the  event  that  they  tended  to  prove  the  fact  of  suicide 
and  were  admissible  on  account  of  their  relevancy  to  that  alleged  fact. 
In  Clark  v.  People,  224  111.  554,  79  N.  E.  941,  it  was  held  that  declara- 
tions of  the  deceased,  made  over  a  year  before  her  death,  of  her  in- 
tention, under  certain  circumstances,  to  commit  such  an  act  as  was 
committed  which  caused  her  death,  were  not  competent,  and  the  de- 
cisions in  the  Siebert  Case  and  the  Howard  Case  were  approved. 

It  is  again  urged  that  the  court  there  found  that  it  was  not  probable 
or  possible  that  the  deceased  did  cause  her  own  death,  but  that  was 
also  upon  consideration  of  the  question  of  guilt  or  innocence,  and 
not  concerning  a  rule  of  the  law  of  evidence.  It  was  not  decided  in 
these  cases  that  declarations  of  intention  are  never  competent,  and  it 
had  already  been  decided  in  Riggs  v.  Powell,  142  111.  453,  32  N.  E. 
482,  where  a  widow  held  a  note  indorsed  by  her  deceased  husband 
which  she  claimed  as  a  gift,  that  it  was  competent  to  prove  his  dec- 
larations in  reference  to  providing  for  his  wife,  to  show  that  such  a 
gift  as  was  claimed  might  probably  have  been  made  because  the  gift 


708  HEARSAY  (Cll.  3 

was  consistent  with  the  avowed  purpose  and  feeling  of  the  husband. 
Afterward,  in  Towne  v.  Towne,  191  111.  478,  61  N.  E.  426,  it  was 
deemed  competent  to  prove  declarations  by  the  owner  of  a  certificate 
in  a  benefit  society  concerning  the  beneficiaries,  s.howing  that  he  did  not 
know  of  the  mistake  in  the  certificate.  It  was  said  that  the  declara- 
tions were  not  competent  evidence  of  the  fact  that  the  certificate  was 
made  out  as  he  said  it  was,  but  it  was  material  to  know  whether  he 
knew  of  the  mistcike  or  acquiesced  in  it,  and  his  declarations  on  that 
subject  were  competent  evidence.  In  Treat  v.  INIerchants'  Life  Ass'n, 
198  III.  431,  64  N.  E.  992,  which  was  an  action  on  a  Hfe  policy,  it  was 
claimed  that  the  insured  committed  suicide,  and  it  was  held  error  to 
refuse  to  permit  the  agent  who  took  the  application  to  testify  that  the 
insured,  immediately  after  signing  it  and  before  the  policy  was  de- 
livered, asked  if  the  company  paid  losses  on  suicide,  and,  on  the  an- 
swer that  it  did  not,  made  some  remark  about  canceling  the  applica- 
tion. The  statement  was  made  while  engaged  in  the  transaction  and 
was  considered  competent  to  show  what  was  in  the  mind  of  the  in- 
sured at  the  time  he  made  the  contract  by  taking  out  the  insurance. 
In  Nordgren  v.  People,  211  111.  425,  71  N.  E.  1042,  it  was  charged 
that  the  accused  gave  his  wife  a  bottle  of  whisky  and  strychnine,  and 
it  was  held  competent  to  prove  that  she  kept  whislcy  and  strychnine 
in  her  room,  and," as  an  explanation  of  her  act,  that  she  made  declara- 
tions when  despondent  tending  to  show  her  intention  to  commit  sui- 
cide. The  declarations  were  not  regarded  competent  as  original  evi- 
dence that  she  committed  suicide,  but  as  explanatory  of  the  act  of 
keeping  in  her  room  bottles  of  whisky  and  strychnine  poison.  *  *  * 
The  decisions  in  this  state  are  in  harmony  and  we  are  satisfied  with 
the  rule  established  by  them. 

Evidence  that  when  Greenacre  was  going  home  he  declared  his 
intention  to  go  home,  kiss  his  wife  and  babies,  and  go  to  sleep  was 
competent  and  was  admitted  as  showing  his  last  declared  intention  in 
connection  with  his  act.*°  If  in  every  case  where  one  since  deceased 
considered  at  any  time  the  question  to  be  or  not  to  be,  with  an  in- 

4  8  Foster  v.  Shepherd,  258  111.  It^,  101  N.  E.  411,  45  T>.  R.  A.  (N.  S.)  167,  Ann. 
Cas.  1914B,  572  (1913),  presented  a  similar  problem.  In  order  to  account  for 
the  presence  of  the  deceased  at  the  place  where  he  was  killed,  plaintiff  claim- 
ed that  he  was  on  his  way  to  spend  the  night  at  the  home  of  his  mother,  and 
for  this  purpose  offered  statements  of  his  intention  so  to  do,  made  during  the 
same  evening  about  three  hours  before  his  death.  The  court  held  that  such 
statements  were  not  admissible,  saying:  "Counsel  for  defendant  in  error  now 
insist  that  this  testimony  was  competent  as  a  part  of  the  res  gestae,  and  cite 
authority  to  the  effect  that  proof  may  be  offered  to  show  statements  made  by 
a  deceased  person  at  the  time  of  his  departure  or  starting  upon  a  journey, 
in  reference  to  his  destination.  Tliis  is  the  law,  but  in  order  to  l)e  consideretl 
as  a  part  of  the  res  gestai  the  statement  made  must  be  immediately  connected 
wltli  the  act  of  departure.  Chicago  &  Eastern  Illinois  Railroad  Co.  v.  Chan- 
cellor, 165  111.  438,  46  N.  E.  269  (1S97).  In  this  case  the  statement  was  made 
about  eight  o'clock  in  the  evening,  whereas  Ralph  Foster  did  not  finally  leave 
his  store  until  at  least  half-past  ten  o'clock,  and  in  the  meautiiiio  he  was  in 
vario>iH  parts  of  the  village  of  Lovington.  The  statement  was  not  competent 
as  a  part  of  the  res  gestie." 


Sec.  2)  RECOGNIZED  EXCEPTIONS  709 

clination  or  decision  toward  the  negative,  his  declarations  neither 
connected  with  any  act  nor  preliminary  to  or  preparatory  for  any  act 
could  be  proved,  it  would  open  a  limitless  field  of  inquiry  as  to  the 
circumstances  under  which  the  declarations  were  made  and  whether  in 
normal  conditions  or  at  times  of  exceptional  inisfortune,  discourage- 
ment, and  despondency.  It  would  raise  all  sorts  of  psychological  ques- 
tions of  mental  states  and  intentions  at  different  times  and  changes  of 
intention  from  external  conditions.  *  *  * 
Judgment  affirmed. 


PEOPLE  V.  HILL. 

(Court  of  Appeals  of  New  York,  1909.    195  N.  Y.  16,  87  N.  E.  813.) 

Haight,  J.**  The  defendant,  Pacy  Hill,  has  been  convicted  of  the 
crime  of  murder  in  the  first  degree  committed  at  the  city  of  Olean,  Cat- 
taraugus county,  on  the  18th  day  of  March,  1908,  by  inflicting  two  bul- 
let wounds,  one  in  the  hand  and  the  other  in  the  breast  of  Chloa  Han- 
cock, from  the  effects  of  which  she  died  on  the  21st  day  of  March 
thereafter. 

The  facts  constituting  the  crime  are  without  substantial  contro- 
versy.    *     *     * 

The  defense  interposed  was  that  of  insanity.  The  claim  of  the  de- 
fendant's counsel  is,  in  substance,  that  his  father  was  subject  to  epilep- 
tic seizures ;  that  one  of  his  sisters  was  weakminded ;  and  that  he  him- 
self had  been  given  opium  in  his  infancy,  and  that  the  drug  had  been 
used  by  him  to  some  extent  up  to  the  time  of  his  becoming  12  years  of 
age,  and  that  he  had  had  a  number  of  epileptic  seizures.  The  evidence 
upon  this  branch  of  the  case  was  chiefly  by  his  relatives,  and  was  sharp- 
ly controverted  also  by  his  relatives.  The  medical  experts  also  clashed 
upon  the  subject.  The  defendant's  expert.  Dr.  Putnam,  reached  the 
conclusion  that  at  the  time  of  the  shooting  the  defendant  was  in  an 
epileptoid  state,  the  psychic  equivalent  of  epilepsy  or  double  conscious- 
ness ;  that  persons  in  tliat  state  act  automatically.  They  go  about,  eat, 
buy  a  railroad  ticket,  go  from  one  town  to  another,  and  when  they 
emerge  from  that  condition  they  have  no  recollection  of  what  had  oc- 
curred or  where  they  are.  While  in  that  condition  they  have  no  motive 
nor  normal  consciousness  of  the  things  they  may  do  or  the  acts  they 
may  commit,  and  consequently  they  are  irresponsible,  and  are  unable 

to  know  the  nature  or  quality  of  their  acts  or  that  they  were  wrong. 

*     *     * 

Our  attention  has  been  called  to  a  number  of  exceptions  that  were 
taken  by  the  defendant  upon  the  trial.     We  have  examined  them  all 
with  care,  but  shall  here  discuss  only  those  which  we  regard  as  most 
material.    Upon  the  examination  of  Dr.  Putnam,  the  defendant's  coun- 
ts Part  of  opinion  omitted. 


710  HEARSAY  (Ch.  3 

sel  sought  to  show  by  him  the  statements  that  were  made  by  the  de- 
fendant at  the  time  that  he  examined  him,  which  was  long  after  the 
alleged  homicide,  for  the  purpose  of  determining  whether  or  not  he 
was  insane.  He  had  testified  that  he  had  a  talk  with  the  defendant 
about  the  conversations  he  had  with  the  chief  of  police  immediately 
following  the  shooting,  and  was  then  asked  the  question :  "Did  he  tell 
you  whether  or  not  he  had  any  remembrance  of  them?"  This  he  an- 
swered in  the  affirmative,  and  was  then  asked  the  question :  "What 
did  he  tell  you?"  To  this  the  district  attorney  interposed  an  objection 
upon  the  ground  that  the  defendant's  own  statements  in  his  own  be- 
half w^ere  not  competent  even  as  a  basis  of  expert  testimony,  and  the 
objection  was  sustained.  In  another  place  the  declarations  of  the  de- 
fendant were  fully  given,  and  therefore  the  exclusion  of  them  here 
may  not  be  material,  but  we  have  concluded  to  examine  the  question. 
It  will  be  observed  that  they  pertain  to  what  he  had  stated  with  refer- 
ence to  his  recollection  after  the  shooting  had  occurred,  not  before. 

In  the  case  of  People  v.  Hawkins,  109  N.  Y.  408,  410,  17  N.  E.  371, 
Danforth,  J.,  in  delivering  the  opinion  of  the  court,  says :  "The  prison- 
er's declaration  in  November  as  to  his  condition  in  September  was  not 
competent  as  evidence  of  his  actual  condition  at  that  time,  nor  could 
it  be  the  basis  of  a  scientific  opinion  as  to  whether  he  was  sane  or  insane 
at  that  period.  Had  the  question  related  to  his  condition  at  the  time 
of  the  interview,  the  result  might  be  quite  different.  Everything  said 
or  done  at  a  given  period  serves  to  disclose  the  mental  state  of  the  ac- 
tor, but  his  narration  as  to  what  he  said  or  did,  or  of  his  feelings  or 
bodily  ailments  upon  a  former  occasion,  furnishes  no  foundation  for  an 
opinion  as  to  his  actual  state  or  condition  at  that  time.  It  is  of  no  high- 
er grade  than  the  declarations  of  third  persons  as  to  a  past  transaction, 
and  in  like  manner  is  inadmissible."  In  the  case  of  People  v.  Strait, 
148  N.  Y.  566,  42  N.  E.  1045,  we  had  occasion  to  examine  the  subject 
again  and  the  authorities  thereon,  both  in  this  and  in  other  states 
and  we  there  reached  the  conclusion  that  a  physician  may  acquire  facts 
from  his  own  observations  in  the  examination  of  a  person,  and  that 
there  was  much  in  the  action,  conduct,  and  appearance  of  a  person  that 
aids  the  physician  in  forming  a  conclusion  as  to  his  sanity.  The  facts 
so  acquired  the  physician  may  himself  give  in  evidence,  at  least  so  far 
as  they  can  be  described ;  but  an  expert  witness  cannot  be  permitted 
to  give  an  opinion  as  to  the  mental  condition  of  a  person  at  the  tirne 
of  the  commission  of  a  criminal  act,  based  upon  a  statement  not  in  evi- 
dence, made  by  a  party  in  his  own  behalf  after  the  commission  of  the 
act,  which  pertains  to  his  past  conduct.  See,  also.  People  v.  Furlong, 
187  N.  Y.  198,  79  N.  E.  978.  It  would  thus  seem  to  appear  that  the 
declarations  of  the  defendant  made  to  the  physician  as  to  his  recollec- 
tions of  transactions  after  the  alleged  homicide,  but  long  before  the 
time  of  the  interview  with  the  physician,  were  not  competent.     ♦     *     * 

Judgment  affirmed. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  711 


STATE  V.  ILGENFRITZ  et  al. 

(Supreme  Court  of  Missouri,  1915.     203  Mo.  615,  173  S.  W.  1041,  Ann.  Cas. 

1917C,  366.) 

Williams,  C.*^  Under  an  indictment  charging  them  jointly  with 
the  murder  of  Jacob  W.  Davis,  defendants  were  tried  in  the  circuit 
court  of  Adair  county  and  found  guilty  of  murder  in  the  second  de- 
gree. The  punishment  of  defendant  Ilgenfritz  was  assessed  at  15  years 
and  that  of  defendant  Lottie  Davis  at  10  years.  Defendants  duly  per- 
fected an  appeal  to  this  court.     *     *     * 

II.  The  defendants  offered  to  prove  by  witness  Williams,  the  sher- 
iff of  Adair  county,  at  the  time  of  the  tragedy,  that,  either  on  Friday 
preceding  the  killing,  or  on  the  day  of  the  killing,  deceased  stated  that 
he  intended  to  kill  himself  and  wife,  and  that  deceased  repeated  the 
threat  in  the  presence  of  the  witness  two  or  three  times.  The  state 
objected  to  the  offer  on  the  ground  that  the  evidence  was  hearsay  and 
therefore  immaterial.  The  court  sustained  the  objection  and  excluded 
the  offer,  and  defendants  saved  an  exception.  This  ruling  is  assigned 
as  error.  There  was  no  evidence  of  self-defense  in  the  case.  Neither 
was  there  evidence  that  this  threat  to  kill  Mrs.  Davis  had  been  com- 
municated to  her.  It  therefore  could  not  be  said,  as  insisted  by  appel- 
lants, that  it  became  relevant  as  explaining  Mrs.  Davis'  failure  to  go 
outside  of  her  home  after  the  shots  were  fired,  to  ascertain  just  what 
had  occurred.  The  court  therefore  did  not  err  in  excluding  the  de- 
ceased's threats  to  kill  his  wife. 

But  the  point  concerning  the  admissibility  of  the  threats  of  de- 
ceased to  commit  suicide  presents  a  more  serious  question,  and  one 
that  leads  us  into  the  realm  of  conflicting  authorities. 

The  cause  of  deceased's  death  was  the  difficult  question  to  be  de- 
termined by  the  triers  of  the  facts.  The  evidence  offered  pro  and  con 
was  wholly  circumstantial.  There  was  circumstantial  evidence  tending 
to  corroborate  the  theory  of  the  state,  at  least  with  reference  to  the  im- 
plication of  defendant  Ilgenfritz  in  the  killing.  There  was  also  cir- 
cumstantial evidence  corroborating  the  defense's  theory  of  suicide.  It 
may  be  conceded  therefore  that,  under  such  conditions,  any  com- 
petent evidence  tending  to  corroborate  the  theory  of  suicide  would  be 
very  material  and  relevant  to  the  issues  involved.  Was  the  testimony, 
under  the  circumstances,  admissible?  Upon  careful  consideration,  we 
have  reached  the  conclusion  that  it  was.  At  the  outset  we  are  met  by 
the  following  authorities  which  hold  the  contrary  view :  State  v.  Pun- 
shon,  124  Mo.  448,  loc.  cit.  457,  27  S.  W.  1111 ;  State  v.  Fitzgerald,  130 
Mo.  407,  loc.  cit.  429,  32  S.  W.  1113;  State  v.  Punshon,  133  Mo. 
44,  loc.  cit.    52,  34  S.  W.  25 ;   State  v.  Bauerle,  145  Mo.  1,  loc.  cit.  25, 

4  7  Part  of  opinion  omitted. 


712  HEARSAY  (Ch.  3 

46  S.  W.  609;  Siebert  v.  People,  143  111.  571,  loc.  cit.  584,  32  N.  E. 
431 ;  Nordgren  v.  People,  211  111.  425,  loc.  cit.  433,  71  N.  E.  1042. 

On  the  other  hand,  the  following  authorities  hold  that  such  evi- 
dence, under  the  present  circumstances,  is  admissible :  Commonwealth 
V.  Trefethen,  157  Mass.  180,  loc.  cit.  188,  31  N.  E.  961,  24  L.  R.  A. 
235  ;  People  v.  Conklin,  175  N.  Y.  333,  loc.  cit.  343,  67  N.  E.  624;  State 
V.  Beeson,  155  Iowa,  355,  loc.  cit.  362,  136  N.  W.  317,  Ann.  Cas. 
1914D,  1275;  Shaw  v.  People,  3  Hun,  272,  loc.  cit.  276;  Nordan  v. 
State,  143  Ala.  13,  loc.  cit.  26,  39  South.  406 ;  Blackburn  v.  State,  23 
Ohio  St.  146,  loc.  cit.  165,'  166;  Boyd  v.  State,  14  Lea  (Tehn.)  161,  loc. 
cit.  175;  State  v.  Kelly,  77  Conn.  266,  loc.  cit.  268,  58  Atl.  705;  3 
Current  Law,  p.  1654;  5  Columbia  Law  Review,  157;  1  Wigmore 
on  Evidence,  par.  143;  3  Bishop's  New  Criminal  Procedure,  par.  631 
(5) ;    1  Wharton's  Criminal  Evidence,  par.  237a. 

The  cases  which  hold  such  evidence  inadmissible  do  so  on  the 
theory  that  the  threats  of  suicide  are  hearsay.  The  only  case  in  this 
state  which  undertakes  to  discuss  the  point  at  any  length  is  the  case 
of  State  V.  Fitzgerald,  130  Mo.  407,  loc.  cit.  429,  32  S.  W.  1113.  An 
examination  of  that  opinion,  however,  will  disclose  that  such  evidence 
was  admitted  in  that  case,  and  the  entire  discussion  is  based  upon  a 
supposed  case.  The  decision  of  the  point  was  therefore  not  neces- 
sary to  a  determination  of  that  case,  and  the  ruling  was  obiter  dictum. 
This  case  appears  to  have  been  cited  by  the  later  cases  without  fur- 
ther discussion.  The  conclusion  stated  in  the  Fitzgerald  Case  was  that 
threats  of  suicide  in  such  cases  are  not  admissible  unless  they  were  a 
part  of  the  res  gestae  or  dying  declarations,  or  unless  at  the  time  made 
they  were  accompanied  by  an  attempt  to  carry  the  threat  into  execu- 
tion. As  to  why  such  threats,  when  accompanied  by  unsuccessful  at- 
tempts at  execution,  would  then  lose  their  hearsay  nature  and  become 
proper  evidence,  the  authorities  taking  that  view  do  not  give  a  sat- 
isfactory explanation,  and  it  is  indeed  difficult  to  discover  any  logical 
reason  therefor. 

It  appears  that  the  error  in  the  logic  of  the  opinions  holding  such 
threats  inadmissible  occurs  in  assuming  that  such  threats  are  merely 
hearsay.  The  probability  of  suicide  would  be  stronger  if  it  could  be 
shown  that  deceased  had  a  suicidal  intent  or  design.  The  existence  of 
such  an  intent  or  design  would  therefore  become  a  material  fact  bearing 
upon  the  issues  involved.  This  intent  or  design  is  a  mental  condition 
and  could  be  evidenced  only  by  deceased's  acts  or  words.  All  author- 
ities would  perhaps  agree  in  saying  that  any  unsuccessful  attempt  at 
self-destruction  would  be  admissible  as  original  evidence  of  the  ex- 
istence of  suicidal  intent.  We  see  no  distinction  between  such  acts  and 
any  "verbal  acts"  which  also  indicate  the  same  mental  state  or.  con- 
dition. It  might  be  said  that  the  verbal  act  was  not  worthy  of  belief 
because  it  could  be  made  when  the  declarant  had  no  such  intention. 
As  much  could  also  be  said  concerning  an  act  amounting  to  an  unsuc- 


Sec.  2)  RECOGNIZED   EXCEPTIONS  713 

cessful  attempt  at  suicide,  for  it  is  not  impossible  that  such  acts  could 
be  feigned.  But  since  the  greater  probability  is  that  both  are  but  the 
direct  result  of  the  mental  state,  their  exclusion  should  not  be  based 
upon  a  mere  possibility  of  error.  And  even  though  it  be  conceded, 
arguendo,  that  the  verbal  acts  were  less  trustworthy  than  the  acts 
amounting  to  an  attempt  of  suicide,  yet,  as  was  well  said  in  the  case 
of  Commonwealth  v.  Trefethen,  supra,  157  Mass.  loc.  cit.  188,  31  N. 
E.  964,  24  L.  R.  A.  235,  "this  affects  only  the  weight  of  the  evidence," 
and  not  its  admissibility. 

Suicidal  threats  are  verbal  acts,  not  narrative  in  character  and  there- 
fore hearsay,  but  are  the  direct  result  of  the  action  of  the  mind  having 
the  suicidal  intent  or  design,  and,  in  cases  like  the  present,  should  be 
admitted  as  original  evidence  of  the  condition  of  the  mind  from  which 
they  .spring.  This  is  the  theory  of  the  case  of  Commonwealth  v. 
Trefethen,  supra,  the  leading  case  holding  such  evidence  admissible. 
In  that  case  the  testimony  excluded  was  the  threat  of  deceased  that 
she  was  going  to  drown  herself.  The  court  set  aside  the  verdict  on 
the  ground  that  the  exclusion  of  such  evidence  was  error.  In  the 
course  of  its  opinion,  the  court  said : 

"Although  evidence  of  the  conscious  voluntary  declarations  of  a 
person  as  indications  of  his  state  of  mind  has  in  it  some  of  the  ele- 
ments of  hearsay,  yet  it  closely  resembles  evidence  of  the  natural 
expression  of  feeling  which  has  always  been  regarded  in  the  law,  not  as 
hearsay,  but  as  original  evidence.  1  Greenl.  Ev.  102.  And,  when  the^ 
person  making  the  declarations  is  dead,  such  evidence  is  often  not  only  ' 
the  best,  but  the  only,  evidence  of  what  was  in  his  mind  at  the  time. 
On  principle,  therefore,  we  think  it  is  clear  that,  when  evidence  of 
the  declarations  of  a  person  is  introduced  solely  for  the  purpose  of 
showing  what  the  ■  state  of  mind  or  intention  of  that  person  was  at 
the  time  the  declarations  were  made,  the  declarations  are  to  he  regarded 
as  acts  from  which  the  state  o/  mind  or  intention  may  be  inferred  in 
the  same  manner  as  from  the  appearance  of  the  person  or  his  be- 
haznor,  or  his  actions  generally.  In  the  present  case  the  declaration, 
evidence  of  which  was  offered,  contained  nothing  in  the  nature  of  nar- 
rative, and  was  significant  only  as  showing  the  state  of  mind  or  inten-J 
tion  of  the  deceased."    (Italics  ours.) 

The  above  case  has  been  many  times  cited  with  approval  by  the 
courts  and  text-writers  above  cited,  and,  after  careful  research  into 
the  subject,  we  have  reached  the  conclusion  that  it  states  the  correct 
rule  regarding  the  admissibility  of  such  evidence.  It  therefore  fol- 
lows that  the  above-cited  Missouri  cases,  in  so  far  as  they  conflict  with 
what  is  herein  decided,  should  be  no  longer  followed.     ♦     *     * 

Judgment  reversed.*® 

♦  8  Compare  the  treatment  of  the  question  of  threats  by  a  third  person  In 
State  V.  Taylor.  136  Mo.  66,  37  S.  W.  907  (1896) ;  State  v.  Barrington,  19S  Mo. 
23,  95  S.  W.  235  (1906). 


714  HEARSAY  (Ch.  3 

(B)  As  to  Physical  Condition 

CALDWELI.  V.  MURPHY. 
(Court  of  Appeals  of  New  York,  1854.    11  N.  Y.  416.) 

The  plaintiffs  obtained  a  verdict  for  damages  in  the  court  below  on 
account  of  personal  injuries  due  to  the  negligence  of  the  defendant.** 

Denio,  J.     *     *     *     In  answer  to  a  question  to  a  witness  by  the 
plaintiff's  counsel  as  to  the  condition  of  the  plaintiff's  health  since  the 
accident,    the    witness    answered:     "He    has    invariably    complained." 
The  defendant  requested  to  have  this  answer  stricken  out;    but  the 
court  refused  to  strike  it  out,  and  the  defendant  excepted.     It  ap- 
peared by  the  other  testimony  of  this  witness  that  he  had  attended 
upon  and  taken  care  of  the  plaintiff  from  the  time  of  the  accident  for 
about  ten  or  eleven  days,  and  had  assisted  him  in  rising  from  his 
bed  and  getting  down  stairs,  and  had  seen  him  repeatedly  since.     It 
was  also  proved  by  a  physician  that  he  was  injured  internally,  as  was 
shown  by  bloody  discharges  from  his  bowels.     I  am  of  opinion  that 
the  evidence  objected  to  did  not  fall  within  the  rule  which  excludes 
the  declarations  of  a  party  in  his  own  favor.     It  is  one  of  the  natural 
concomitants  of  illness  and  of  physical  injuries  for  the  sick  or  injured 
person  to  complain  of  pain  and  distress.     A  complaint,  it  is  true,  may 
be  simulated,  but  it  is  generally  real.     I  think  such  evidence  is  ad- 
missible from  the  necessity  of  the  case,  and  that  it  may  safely  be  left 
to  the  jury  in  connection  with  the  other  evidence  touching  the  al- 
leged sick  or  injured  person's  condition.     In  a  somewhat  similar  case 
Lord  EUenborough  said:     "If  inquiries  of  patients  by  medical  men, 
with  the  answers  to  them,  are  evidence  of  the  state  of  health  of  the 
patients  at  the  time,  this  must  be  evidence.     V/hat  were  the  com- 
plaints, what  the  symptoms,  what  the  conduct  of  the  parties  them- 
selves at  the  time,  are  always  received  in  evidence  upon  such  inquiries 
and  must  be  resorted  to  from  the  very  nature  of  the  thing."     Aveson 
v.  Kinnaird,  6  East,  188.     See,  also,  the  cases  cited  in  Cowen  &  Hill's 
Notes,  p.  587,  note  447 ;   1  Greenl.  Ev.  §  102,  and  the  cases  referred  to 

in  the  notes. 

The  charge  of  the  judge  responded  accurately  to  the  several  requests 
for  instructions,  so  far  as  the  evidence  raised  the  questions  suggested 
by  the  defendant's  counsel ;  and,  upon  the  whole,  I  am  of  opinion  that 
no  error  was  committed  upon  the  trial.  The  judgment  should  be  af- 
firmed. 

Judgment  affirmed.''*' 

*f>  Statement  condensed  and  part  of  opinion  omitted. 

50  Under  the  same  tlieory  complaints  i)y  a  third  person  who  would  not  have 
been  a  competent  witness  have  been  received— e.  g.,  Aveson  v.  Ivmnaird,  6 
Kast,  IBS  (ISO.")),  wife's  statements  in  an  action  by  the  husband;  Marr  v.  Hill. 
10  Mo.  .'i21  (1817),  statements  by  u  blave  in  an  action  for  breach  of  warranty 
of  soundness. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  715 

INHABITANTS  OF  ASHLAND  v.  INHABITANTS  OF 

MARLBOROUGH. 
(Supreme  Judicial  Court  of  Massachusetts,  18GS.     99  Mass.  47.) 

Action  to  recover  the  expense  of  supporting  W.  H.  Maynard,  a 
pauper. 

Among  other  evidence  offered,  and  admitted  against  the  objection 
of  the  defendants,  one  witness,  not  a  physician,  testified  that  Maynard, 
while  in  his  employment  before  enlisting,  said  one  day  that  "he  had 
seen  Dr.  Jackson,  who  told  him  he  had  got  a  bad  thing  on  him,  and 
that  his  kidneys  were  diseased;"  and  that,  another  day  after  Maynard 
had  been  discharged  from  the  service,  the  witness  asked  him  what 
ailed  him,  and  he  said  "his  old  complaint  before  he  went  into  the 
army;"  and  another  witness,  who  also  was  not  a  physician,  testified 
that  Maynard,  before  enlisting,  "did  not  appear  like  a  well  man." 

The  jury  returned  a  verdict  for  the  plaintiffs;  and  the  defendants 
alleged  exceptions.''^ 

Chapman.  J.  The  question  in  issue  between  the  parties  was,  wheth- 
er Maynard  who  enlisted  into  the  sendee  of  the  United  States  on  the 
2d  of  July  1861,  became  disabled  by  disease  contracted  in  the  serv- 
ice, or  whether  he  had  the  disease  before  he  enlisted.  One  species 
of  the  evidence  which  was  offered  to  prove  that  he  was  diseased  before 
he  enlisted  was  his  own  language.  The  principle  which  applies  to 
such  evidence  is  stated  in  Bacon  v.  Charlton,  7  Cush.  586."     Evi- 

61  statement  condensed. 

52  In  this  case  evidence  had  been  admitted  to  the  effect  that  plaintiff  made 
exclamations  of  pain  on  the  way  home  from  the  place  of  the  accident,  and 
that  he  complained  of  pain  in  the  injured  parts  for  three  or  four  days.  In 
approving  this  ruling,  Bigelow,  J.,  observed:  "Such  evidence,  however,  is  not 
to  be  extended  beyond  the  necessity  on  which  the  rule  is  founded.  Any  thing 
in  the  nature  of  narration  or  statement  is  to  be  carefully  excluded,  and  the 
testimony  is  to  be  confined  strictly  to  such  complaints,  exclamations  and  ex- 
pressions as  usually  and  naturally  accompany,  and  furnish  evidence  of,  a 
present  existing  pain  or  malady.  Of  course,  it  will  always  be  for  the  jury  to 
judge  whether  such  expressions  are  real  or  feigned,  which  can  be  readily  as- 
certained by  the  manner  of  them,  and  the  circumstances  under  which  they 
are  proved  to  have  been  made.  The  ruling  of  the  court  below  on  this  point 
was  strictly  in  conformity  with  the  rules  of  law,  and  was  properly  guarded 
and  limited.  1  Greenl.  Ev.  §  102:  Aveson  v.  Lord  Kinnaird,  6  East,  18S  [1S05]. 
These  remarks  as  to  the  limitation  of  the  rule  are  not  intended  to  apply  to 
the  statements  made  by  a  patient  to  a  medical  man,  to  which  a  different  ruly 
may  be  applicable." 

This  dictum  was  commented  on  with  approval  in  Barber  v.  Merriam,  11  Al- 
len, 322  (iS6.5),  though  it  does  not  appear  that  any  statements  of  past  condi- 
tion were  admitted  in  that  case. 

The  dictum  was  repeated  by  Endicott,  J.,  in  Roosa  v.  Boston  Loan  Co..  132 
Mass.  439  (1882),  in  the  following  form:  "While  a  witness  not  an  expert,  can 
testify  only  to  such  exclamations  and  complaints  as  indicate  present  existing 
pain  and  suffering,  a  physician  may  testify  to  a  statement  or  a  narrative  giv- 
en by  his  patient  in  relation  to  his  condition,  symptoms,  sensations  and  feel- 
ings, both  past  and  present." 

Whether  this  accurately  represents  the  accepted  rule  in  Massachusetts  is 
not  clear.  Compare  Fleming  v.  Springfield,  154  Mass.  520,  28  N.  E.  910,  2l> 
Am.  St.  Rep.  268  (1891). 


716  HEARSAY  (Ch.  3 

clence  of  the  usual  and  natural  expression  of  present  feelings  or  emo- 
tions is  admissible,  though  it  consist  wholly  or  partly  of  words.  But 
such  evidence  is  not  to  be  unnecessarily  extended,  and  is  not  to  in- 
clude narration  of  what  is  past.  A  physician,  who  is  called  as  an 
expert,  may  testify  to  the  statements  which  a  sick  or  injured  person 
made  to  him  as  his  patient,  for  the  purpose  of  obtaining  his  profes- 
sional aid,  as  to  the  character  and  seat  of  his  injuries  and  sensations, 
and  describing  his  condition  and  symptoms.  Barber  v.  Merriam,  11 
Allen,  322.  But  a  physician's  testimony  cannot  include  a  recital  of 
past  events  which  his  patient  made  to  him.  Chapin  v.  Marlborough, 
9  Gray,  244,  69  Am.  Dec.  281 ;  Emerson  v.  Lowell  Gaslight  Co.,  6 
Allen,  146,  83  Am.  Dec.  621. 

A  person  who  is  not  an  expert  may  testify  to  the  acts  and  appear- 
ance of  another  which  indicate  disease  or  disability,  or  the  contrary; 
but  may  not  give  opinions  on  the  subject. 

Upon  the  principles  above  stated,  the  evidence  of  Maynard's  state- 
ment as  to  what  Dr.  Jackson  had  told  him ;  and  as  to  his  having  had) 
a  complaint  before  ^^  he  went  into  the  army ;  and  the  opinion  of  a 
witness  who  was  not  an  expert  that  he  did  not  appear  like  a  well  man ; 
were  inadmissible. 

It  is  not  necessary  to  state  the  application  of  these  principles  to 
every  particular  of  the  evidence  offered,  for  upon  a  new  trial  the  evi- 
dence may  be  varied ;  and  the  principles  stated  are  sufficient  guides  in 
the  admission  or  exclusion  of  evidence. 

Exceptions  sustained. 


TRAVELERS'  INS.  CO.  OF  CHICAGO  v.  MOSLEY. 

(Supreme  Court  of  the  United  States,  18G9.    8  Wall.  397,  19  L.  Ed.  437.) 

Mr.  Justice  Swayne  ^*  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States  for 
the  Northern  District  of  Illinois.  The  action  was  upon  a  policy  of  in- 
surance. It  insured  Arthur  H.  Mosley  against  loss  of  life,  or  per- 
sonal injury  by  any  accident  within  the  meaning  of  the  instrument,  and 
was  issued  to  Mrs.  Arthur  H.  Mosley,  the  wife  of  the  assured,  for 
her  benefit.  The  declaration  was  in  assumpsit.  The  defendant  plead- 
ed the  general  issue,  and  the  cause  was  tried  by  a  jury.    The  plaintiff 

ni  Rollow.s.  .7.,  In  Taylor  v.  Grand  Trunk  Ry.  Co..  IS  N.  H.  .^04,  2  Am.  Rop. 
229  (1809):  "Tested  by  these  rules  the  statement  of  INIiss  Taylor  that  she  had 
not  had  any  rest  was  not  strictly  luliiiisxsihlo.  It  is  true,  as  sus5,'ested  by 
pluintiCf's  counsel,  that  there  is  included  in  the  expression  the  idea  (hat  she 
was  then  unable  to  sleep,  and  so  far  it  would  not  be  objectionable;  i)ut  it 
relates  also  to  time  that  was  past,  and  if  adndtled  it  would  be  dillicult  to  toll 
where  tf)  stop.  Still  it  does  not  seem  to  be  at  all  material,  and  on  that  j^round 
we  should  hesitate  to  set  aside  the  verdict  for  that  cause." 

■' '  SlatLUJciit  and  part  of  opinion  of  Swayuc,  J.,  and  opinion  of  Clifford,  J., 
omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  717 

recovered.  During  the  trial,  a  bill  of  exceptions  was  taken  by  the 
plaintiff  in  error,  by  which  it  appears  that  the  contest  between  the  par- 
ties was  upon  the  question  of  fact,  whether  Arthur  H.  Mosley,  the  as- 
sured, died  from  the  eft'ects  of  an  accidental  fall  down  stairs  in  the 
night,  or  from  natural  causes. 

The  defendant  in  error  was  called  as  a  witness  in  her  own  behalf, 
and  testified,  "that  the  assured  left  his  bed  Wednesday  night,  the  18th 
of  July,  1866,  between  12  and  1  o'clock ;  that  when  he  came  back,  he 
said  he  had  fallen  down  the  back  stairs,  and  almost  killed  himself; 
that  he  had  hit  the  back  part  of  his  head  in  falling  down  stairs; 
*  *  *  she  noticed  that  his  voice  trembled;  he  complained  of  his 
head,  and  appeared  to  be  faint  and  in  great  pain." 

To  the  admission  of  all  that  part  of  the  testimony  which  relates  to 
the  declarations  of  the  assured,  about  his  falling  down  stairs,  and  the 
injuries  he  received  by  the  fall,  the  counsel  of  the  defendants  objected. 
The  court  overruled  the  objection,  and  the  defendants  excepted. 

William  H.  Mosley,  son  of  the  assured,  testified,  in  behalf  of  the 
plaintiff',  "that  he  slept  in  the  lower  part  of  the  building,  occupied  by 
his  father ;  that  about  12  o'clock  of  the  night  before-mentioned,  he  saw 
his  father  lying  with  his  head  on  the  counter,  and  asked  him  what  was 
the  matter  ;  he  replied,  that  he  had  fallen  down  the  back  stairs  and  hurt 
himself  very  badly."  The  defendants  objected  to  both  the  question 
and  answer.    An  exception  to  their  admission  followed. 

The  same  witness  testified  further,  "that  on  the  day  after  the  fall,  his 
father  said  he  felt  very  badly,  and  that  if  he  attempted  to  walk  across 
the  room,  his  head  became  dizzy;  on  the  following  day,  he  said  he  was 
a  little  worse,  if  anything."  The  admission  of  this  testimony  also  was 
excepted  to  by  the  defendants. 

This  statement  presents  the  questions  which  we  are  called  upon  to 
consider.  They  are,  whether  the  court  erred  in  admitting  the  decla- 
rations of  the  assured,  as  to  his  bodily  injuries  and  pains,  and  whether 
it  was  error  to  admit  such  declarations,  to  prove  that  he  had  fallen 
down  the  stairs. 

It  is  to  be  remarked,  that  the  declarations  of  the  former  class  all  re- 
lated to  present  existing  facts  at. the  time  they  were  made. 

Those  of  the  latter  class  were  made  immediately,  or  very  soon  after 
the  fall;  the  declarations  to  his  son,  before  he  returned  to  his  bed- 
room ;  those  to  his  wife,  upon  his  reaching  there. 

Wherever  the  bodily  or  mental  feelings  of  an  individual  are  material 
to  be  proved,  the  usual  expressions  of  such  feelings  are  original  and' 
competent  evidence.  Those  expressions  are  the  natural  reflexes  of 
what  it  might  be  impossible  to  show  by  other  testimony.  If  there  be 
such  other  testimony,  this  may  be  necessary  to  set  the  facts  thus  de- 
veloped in  their  true  light,  and  to  give  them  their  proper  effect.  As 
independent  explanatory  or  corroborative  evidence,  it  is  often  indis- 
pensable to  the  due  administration  of  justice.  Such  declarations  are 
regarded  as  verbal  acts,  and  are  as  competent  as  any  other  testimony, 


718  HEARSAY  (Ch.  3 

when  revelant  to  the  issue.    Their  truth  or  falsity  is  an  inquiry  for  the 

jury. 

In  actions  for  the  breach  of  a  promise  to  marry,  such  evidence  is  al- 
ways received  to  show  the  affection  of  the  plaintiff  for  the  defendant 
while  the  engagement  subsisted,  and  the  state  of  her  feelings  after  it 
was  broken  off;  and  in  actions  for  criminal  conversation,  to  show  the 
terms  upon  which  the  plaintiff  and  his  wife  lived  together  before  the 
cause  of  action  arose.  Upon  the  same  ground,  the  declarations  of  the 
part)'  himself  are  received  to  prove  his  condition,  ills,  pains,  and  symp- 
toms, whether  arising  from  sickness,  or  an  injury  by  accident  or  vio- 
lence. If  made  to  a  medical  attendant,  they  are  of  more  weight  than 
if  made  to  another  person.  But  to  whomsoever  made,  they  are  compe- 
tent evidence.  Upon  these  points,  the  leading  writers  upon  the  law  of 
evidence,  both  in  this  countiy  and  in  England,  are  in  accord.  1  Green- 
leaf  on  Evidence,  §  102;  1  Phillips  on  Evidence  (last  ed.)  p.  183;  1 
Taylor  on  Evidence,  478,  §  518. 

There  is  a  limitation  of  this  doctrine  that  must  be  carefully  observed 
in  its  application. 

Such  evidence  must  not  be  extended  beyond  the  necessity  upon  which 
(he  rule  is  founded.  It  must  relate  to  the  present,  and  not  to  the  past. 
Anything  in  the  nature  of  narration  must  be  excluded.  It  must  be 
confined  stricdy  to  such  complaints,  expressions,  and  exclamations,  as 
furnish  evidence  of  "a  present  existing  pain  or  malady."  Bacon  v. 
The  Inhabitants,  etc.,  7  Cush.  (Mass.)  586.  Examined  by  the  standard 
of  these  rules,  the  testimony  to  which  this  exception  relates  was  prop- 
erly admitted. 

Judgment  affirmed. 


SB 


ROCHE  V.  BROOKLYN  CITY  &  N.  R.  CO. 

(Court  of  Appeals  of  New  York,  1SS7.     105  N.  Y.  294,  11  N.  E.  aSO,  59  Am. 

Rep.  506.) 

Peckiiam,  J.  The  only  question  in  this  case  arises  upon  the  ad- 
mission of  the  testimony  of  a  third  party  that  the  plaintiff',  some  days 
after  the  happening  of  the  accident  which  caused  her  injury,  complain- 
ed that  she  was  suffering  pain  in  her  injured  arm.  The  witness  did 
not  testify  that  on  these  occasions  the  plaintiff  screamed  or  groaned, 
or  gave  other  manifestations  of  a  seemingly  involuntary  nature  and 
indicative  of  bodily  suffering,  but  he  proved  simple  statements  or  dec- 
larations made  by  plaintiff,  that  she  was  at  the  time  of  making  them 
suffering  pain  in  her  arm.  The  plaintiff  was  herself  sworn,  and  prov- 
ed the  injury  and  the  pain.  The  condition  of  the  arm  the  night  of 
the  accident  was  also  proved ;  that  it  was  very  much  swollen  and  black 

80  That  the  complaints,  statements,  etc.,  need  not  be  made  at  or  close  to 
the  time  when  the  In  jury  was  rec-cived,  see  Mississippi  Crnt.  U.  Co.  v.  Turn- 
age,  95  Miss.  854,  49  South.  840,  124  L.  K.  A.  (N.  S.)  253  (1909),  annotutod. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  719 

all  around  it,  and  subsequently  red  and  inflamed,  and  continued  swol- 
len and  inflamed  more  or  less  for  a  long  time.  The  defendant  chal- 
lenges the  evidence  of  complaints  of  pain  thus  made,  on  the  ground 
that  it  was  incompetent,  and  the  argument  made  was  that  the  evidence 
as  to  the  injury  and  its  extent  could  not  be  thus  corroborated  by  mere 
hearsay. 

Prior  to  the  time  when  parties  were  allowed  to  be  witnesses,  the 
rule  in  this  class  of  cases  permitted  evidence  of  this  nature.  Caldwell 
V.  Murphy,  11  N.  Y.  416;  Werely  v.  Persons,  28  N.  Y.  344,  84  Am. 
Dec.  346.  These  cases  show  that  the  evidence  was  not  confined  to 
the  time  of  the  injury,  or  to  mere  exclamations  of  pain.  The  admissi- 
bility of  the  evidence  was  put,  in  the  opinion  of  Judge  Denio,  in  11 
N.  Y.,  supra,  upon  the  necessity  of  the  case,  as  being  the  only  means 
by  v/hich  the  condition  of  the  sufferer  as  to  enduring  pain  could,  in 
many  instances,  be  proved.  Substantially  the  same  class  of  evidence 
was  admitted  in  England,  and  for  the  same  reason.  See  cases  cited 
in  11  N.  Y.  In  Massachusetts,^^  too,  the  same  rule  was  applied. 
Bacon  v.  Charlton,  7  Cush.  (Mass.)  581 ;  cited  and  approved  in  Roosa 
V.  Boston  Loan  Co.,  132  Mass.  439. 

After  the  adoption  of  the  amendment  to  the  Code,  permitting  par- 
ties to  be  witnesses,  the  question  under  discussion  was  somewhat  moot- 
ed in  Reed  v.  Railroad,  45  N.  Y.  574,  by  Allen,  J„  in  the  course  of 
his  opinion,  although  the  precise  point  was  not  before  the  court.  The 
question  there  under  discussion  was  as  to  the  correctness  of  permitting 
the  plaintiff  to  prove  his  declarations  made  at  the  time  he  was  doing 
some  work,  to  a  third  person,  as  to  the  state  of  his  health.  That  is 
not  exactly  like  the  case  of  complaints,  made,  not  as  to  a  state  of 
health,  but  as  to  a  then  present  existing  pain  at  the  very  spot  alleged 
to  have  sustained  injury,  and  proved  so  by  other  evidence;  still  the 
remarks  of  Judge  Allen,  on  this  kind  of  evidence  in  general,  bear  strict- 
ly upon  the  matter  herein  discussed.  He  reviewed  in  his  opinion  some 
of  the  above  cases  and  others,  and  claimed  that  the  courts  had  admit- 
ted the  evidence  from  the  necessity  of  the  case,  as  being  the  only  meth- 
od by  which  the  condition  of  the  party  could  be  shown  fully  and  com- 
pletely, not  only  as  to  appearances,  but  also  as  to  suffering.  But 
there  was  no  agreement  by  the  court  upon  that  branch  of  the  case, 
the  judgment  going  upon  another  ground. 

The  case  of  Hagenlocher  v.  Brooklyn  R.  R.,  99  N.  Y.  136,  1  N.  E. 

5  6  In  Cashin  v.  New  York,  N.  H.  &  li.  R.  Co.,  185  Mass.  543,  70  N.  E.  930 
(1904),  in  holding  that  it  was  proper  to  admit  the  following  statement  by  the 
plaintiff,  "God  Almighty.  Joe,  if  I  could  only  get  rid  of  these  headaches,"  the 
court  said:  "*  *  *  That  part  of  the  answer  which  ends  with  the  word 
•headaches,'  when  taken  in  connection  with  the  statement  that  at  the  time 
of  the  exclamation  the  plaintiff  had  his  hands  upon  his  head,  may  be  re- 
garded as  an  exclamation  and  ejaculation  of  present  pain.  And  it  is  none 
the  less  so  even  if  it  also  carries  an  idea  of  similar  past  pain.  So  far  as 
it  was  an  ejaculation  of  present  pain  it  was  admissible  and  was  therefore 
rightly  admitted,  but  it  was  not  to  be  considered  as  any  evidence  whatever 
of  similar  prior  pain." 


720  HEARSAY  (Ch.  3 

536,  decides  that,  even  since  the  Code,  evidence  of  exclamations  indica- 
tive of  pain  made  by  the  party  injured  is  admissible.     The  case  does 
not  confine  proof  of  these  exclamations  to  the  time  of  the  injury. 
The  question  was  asked  of  the  plaintiff's  mother:     "How  long  after 
injury  was  your  daughter  confined  in  the  bed?    Answer.  She  was  for 
about   four  weeks.     Question.  What   expressions   did   she  make,   or 
what  manifestations,  showing  that  she  suffered  pain?"     This  shows 
there  was  no  confinement  of  the  evidence  to  the  time  of  the  mjury. 
The  evidence  given,  however,  was  of  screams  when  the  plaintift''s  foot 
was  touched,  and  of  her  exclamations  of  pain  when  even  the  sheet  was 
permitted  to   touch   tlie   foot.      The   evidence    was   permitted   on   the 
ground  that  it  was  of  a  nature  which  substan'/ially  corroborated  the 
plaintiff  as  to  her  condition.     Having  thus  admitted  evidence  of  this 
kind  since  the  adoption  of  the  Code  amendment  permitting  parties  to  be 
witnesses,  the  question  is  whether  there  is  such  a  clear  distinction  be- 
tween it  and  evidence  of  simple  declarations  of  a  party  that  he  was 
then  suffering  pain,  but  giving  no  other  indications  thereof,  as  to  call 
for  the  adoption  of  a  different  rule.    It  seems  to  us  that  there  is.    Evi- 
dence of  exclamations,  groans,  and  screams  is  now  permitted,  more 
upon  the  ground  that  it  is  a  better  and  clearer  and  more  vigorous  de- 
scription of  the  then  existing  physical  condition  of  the  party  by  lu  eye- 
witness than  could  be  given  in  any  other  way.     It  characterizes  and 
explains  such  condition.     Thus,  in  the  very  last  case  cited,  it  was 
shown  that  the  foot  was  very  much  swollen,  and  so  sore  that  the  sheet 
could  not  touch  it.     How  was  the  condition  of  soreness  to  be  shown 
better  than  by  the  statement  that,  when  so  light  an  article  as  a  sheet 
touched  the  foot,  the  patient  screamed  with  pain?    It  was  an  involun- 
tary' and  natural  exhibition  and  proof  of  the  existence  of  intense  sore- 
ness and  pain  therefrom.     True,  it  might  be  simulated,  but  this  pos- 
sibility is  not  strong  enough  to  outweigh  the  propriety  of  permitting 
such  evidence  as  fair,  natural,  and  original  corroborative  evidence  of 
the  plaintiff  as  to  his  then  physical  condition.     Its  weight  and  pro- 
priety are  not,  therefore,  now  sustained  upon  the  old  idea  of  the  neces- 
sity of  the  case. 

But  evidence  of  simple  declarations  of  a  part>%  made  some  time  after 
the  injury,  and  not  to  a  physician  for  the  purpose  of  being  attended  to 
professionally,  and  simply  making  the  statement  that  he  or  she  is  then 
suffering  pain,  is  evidence  of  a  totally  different  nature,  is  easily  stated, 
liable  to  gross  exaggeration,  and  of  a  most  dangerous  tendency,  while 
the  former  necessity  for  its  admission  has  wholly  ceased.  As  is  said 
by  Judge  Allen  in  Reed  v.  Railroad,  supra,  the  necessity  for  giving 
such  declarations  in  evidence,  where  the  party  is  'living  and  can  be 
sworn,  no  longer  existing,  and  that  being  the  reason  for  its  admis- 
sion, the  reason  of  the  rule  ceasing,  the  rule  itself,  adopted  with  re- 
luctance and  followed  cautiously,  should  also  cease.  With  the  rule  as 
herein  announced  there  can  be  no  fear  of  a  dearth  of  evidence  as  to 
the   extent   of   the   injury,   and    the   suffering   caused   thereby.     Tbe 


Sec.  2)  RECOGNIZED  EXCEPTIONS  721 

party  can  himself  be  a  witness,  if  living,  and,  if  dead,  the  suffering  is 
of  no  moment,  as  it  cannot  be  compensated  for  in  an  action  by  the 
personal  representative  under  the  statute,  and  the  exclamations  of  pain, 
the  groans,  the  sighs,  the  screams,  can  still  be  admitted.  But  we  are 
quite  clear  tliat  the  bald  statement,  made  long  after  the  injury,  by  the 
party,  that  he  suffers  from  pain,  ought  not  to  be  admitted  as  in  any 
degree  corroborative  of  his  testimony  as  to  the  extent  of  his  pain. 
For  these  reasons,  the  evidence  of  Mr.  McElroy,  as  to  the  plaintiff's 
declarations  of  existing  pain,  when  they  were  walking  in  the  street 
together,  long  after  the  accident,  should  not  have  been  received.  It 
was  error,  also,  to  permit  the  same  witness  to  prove  declarations  of  the 
plaintiff  that  her  arm  pained  her  very  much,  even  though  at  the  same 
time  she  showed  her  arm,  and  it  was  swollen  and  red.  The  appearance 
of  the  arm  he  could  describe,  but  her  declaration  that  it  pained  her 
very  badly  is  mere  hearsay,  and  should  not  have  been  permitted. 

The  judgments  of  the  general  term  and  circuit  should  be  reversed, 
and  new  ti'ial  granted ;  costs  to  abide  event.^'^ 

All  concur,  except  Danforth,  J.,  dissenting. 


NORTHERN  PAC.  R.  CO.  v.  URLIN. 

(Supreme  Court  of  the  United  States.  1S94.     158  U.  S.  271,  15  Sup.  Ct.  840, 

39  L.  Ed.  977.) 

This  was  an  action  brought  by  Alfred  J.  Urlin,  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Montana,  against  the  Northern 
Pacific  Railroad  Company,  to  recover  for  personal  injuries  received  by 
him  when  traveling  as  a  passenger  in  one  of  its  trains.     *     *    * 

The  case  proceeded  to  trial  before  the  court  and  a  jury,  and  resulted 
in  a  verdict  for  the  plaintiff  in  the  sum  of  $7,500,  and  the  jury  also 
returned  certain  special  findings  which  had  been  submitted  to  them  at 
the  request  of  the  defendant.  Judgment  was  entered  upon  said  verdict 
and  special  findings.  During  the  trial  several  exceptions  were  taken  by 
the  defendant,  which  were  allowed  and  signed  by  the  judge,  and 
which  are  brought  for  review  to  this  court  by  a  writ  of  error.^^ 

Mr.  Justice  Shiras.  *  *  *  The  third  assignment  is  strenuously 
pressed  on  our  attention  in  the  brief  of  the  plaintiff  in  error.  It  arises 
out  of  the  refusal  of  the  court  below  to  suppress  certain  portions  of 
the  depositions  of  Drs.  Mills  and  De  Witt  because  of  incompetency, 
and  as  merely  hearsay. 

This  objection  is  founded  upon  the  witnesses  having  been  pennitted 
to  testify  to  statements  made  by  the  defendant,  at  various  times,  to 

5  7  For  some  comment  on  the  distinction  taken  between  statements  and  ex- 
clamations, see  separate  opinion  of  Canty,  J.,  in  Williams  v.  Great  Northern 
Ry.  Co.,  68  Minn.  Z^-^.  70  N.  W.  8G0,  37  L.  R.  A.  199  (1897). 

68  Statement  condensed  and  part  of  opinion  omitted. 
HiNT.Ev. — 16 


■sva 


HEARSAY  (Ql.  5 


s^?n^^r.ced  :h.i:  <uch  <:.i:x':r.er-r^  \\-«r^  :::,ide  coo  '.or.g^  Atier  i::c  v.vcur- 
r^ns.-^  c:  :he  ::v"-:r\-  to  be  p-art  of  the  res  §^sr»^.  bwt  were  merely  narra- 
r.vvv?  of  pa:^t  i::c;dent< :  ar.d  it  is  further  urged  that.  whate>~er  reason 
:here  r.-,iy  have  tomter'y  been,  when  a  party  could  not  himself  testify 
to  h:s  sensaitMXis^  for  I  beraHr\-  in  ad::tittin^  such  slaranents,  now  that 
he  is  a  conopelent  wim^ss.  such  reason  no  longrer  operates. 

An  ia^iectioii  of  the  derv^idons  show-s  that  the  statennents  objected 
to  were  nudnbr  utterances  and  exclamations  of  the  defendant  when 
iBtdHr^omg:  phy^kal  exxminatio«is  by  the  medical  witnesses-  As  c«e 
of  the  priDdpal  qpestkxis  in  the  case  w-as  whether  the  injuries  of  the 
defesfedaztt  were  of  a  permanent  or  of  a  temporarr  character,  it  was 
certainiy  competent  to  prore  that,  dtnii^  the  twt>  years  which  had 
ebipsed  betireen  the  happexun^  of  the  acddent  and  the  trial,  there 
wifre  sevx^ral  medical  examinatxns  into  the  ccmditiQn  of  the  plaintict. 
Evenr  ocse  know^  dsat  when  injuries  ane  internal,  and  not  obvious  to 

the  siirgeon  tes  :         : :  ly  depend  cm  the  responses 

-  -       — ^: ected  to  examinatioa. 

...   ...  .  ...  c^s  of  an  individaal  are  ma- 

:  >e  -^r^'-^i  :^:^rf>-  £  such  feelings,  made  at  the 

: .  If  diey  were  d»e  natural 
.i~ecnca,  whether  of  body  or  mind,  they  famish  sat- 
e.  ard  often  the  ocly  proof  of  its  existence,  and  wheth- 

-  - :  .— ed  is  for  the  iury  to  determine.  So,  also, 
....  -.ck  person  of  the  nature,  symptocos,  and  ef- 
fects c  ier  widch  he  is  sufEerit^  at  the  time  are  orig- 
inal evidetjce-     If  made  to  a  medical  attendant,  diey  are  of  greater 

as  evidenoe.  bat,  if  made  to  anv  other  persca.  ^.ev  are  not,  on 
-::.i:  ac  fi~     10"  ~  '     "  ^th  Ed-^  §  ICC." 

-  ^  :      :-:  ?—  .  -  :dass.  520.  JS  X.  E.  9ia  26 

v_   :r:    ..        .    ^       ..:0;  i..:-.  _         -       ".  arose,  it  was  said : 

~TSfie  tt-                 :  EV.  Rice  w..  erly  admitted.     The  staterooit 

rtsade  bv  :                  5'  purported  to  .  ^escripdoa  of  his  symptoms 

at  the  time  it  was  made,  and  n."  -rradve  of  stiSDethxng  that  was 

■              be  fairbr  toferrx:  .:  was  made  for  the  purpooe  of 

• "  treatmient-  rare,  altfaoHjEgh  it  was  only  a 

.    :r  possibly  c.  ^    .^.e  trial,  it  does  not  appear  that 

-  w:i5  -  nse 

~-;  i:  ±rmade,  are  coai- 

ent  evkicQce,  *.  lo  suclI  cognp'.vnts,  expres- 

.       ,         '        "        -  -.-.__.-._-    "xistir^  pain 

....  ...--15.  whether 

-  :  o-  ^-to'ence.     If 

rr-edxa!  arte  •  are  c.  .         .  -if  made  to 


«         s  » 


Sec.  2)  RECOGNIZED   EXCEPTIONS  72.'i 

WEST  CHICAGO  ST.  RY.  CO.  v.  KENNEU.Y. 

(Supreme  Court  of  Illinois,  1897.     170  111.  .W8,  48  N.  E.  996.) 

Craig,  ].'"  This  was  an  action  brought  by  Mary  Kennelly  to  re- 
cover damages  for  a  personal  injury  alleged  to  have  been  sustained 
by  reason  of  the  negligence  of  the  West  Chicago  Street-Railroad  Com- 
pany.    *     *    *  -  -  - 

It  was  claimed  on  the  trial  that,  as  a  result  of  the  accident,  plaintiff 
received  an  injury  on  one  of  her  hips,  and  her  right  ankle  was  badly 
sprained.  On  the  other  hand,  it  was  claimed  on  the  part  of  the  de- 
fendant that  the  injuries  were,  in  a  great  measure,  from  other  causes. 
*    *    * 

For  the  purpose,  it  may  be  presumed,  of  showing  that  plaintiff  was 
in  good  health  before  the  accident,  the  witness  Devennee  was  asked, 
"Did  you  hear  her  complain  of  any  injuries?"  To  the  question  the 
witness  answered,  "No,  sir;  I  did  not."  While  it  may  be  conceded 
that  the  declarations  of  the  plaintiff  made  to  the  witness  was  not 
competent  evidence  to  prove  her  physical  condition,  yet  we  are  inclined 
to  the  opinion  that  it  was  not  error  to  allow  the  witness  to  state  the 
fact  that  she  heard  no  complaint.  The  witness  resided  near  the  plain- 
tiff, visited  her  almost  daily  for  three  or  four  months  before  the  acci- 
dent, and  the  fact  that  during  that  time  she  heard  no  complaint  from 
the  plaintiff  in  regard  to  her  condition  may  be  regarded  at  least  as 
slight  evidence  tending  to  prove  her  condition.  The  weight,  however, 
to  be  given  to  such  evidence,  was  a  question  for  the  jury.  The  same 
witness  was  asked  how  she  found  the  plaintiff  the  morning  after  the 
accident,  to  which  she  replied,  "She  was  complaining  awful  bad."  It 
is  said  in  the  argument  "that  the  plaintiff  could  not  make  testimony 
for  herself  by  stating  her  feelings  to  a  lay  witness.  What  she  may 
have  told  the  witness  was  entirely  incompetent  to  be  by  her  repeated 
as  evidence." 

Conceding  that  statements  made  by  the  plaintiff  to  the  witness  in 
regard  to  her  condition  were  incompetent,  it  does  not  follow  that  the 
answer  to  the  question  was  erroneous.  The  witness  was  not  asked  to 
give  any  declaration  made  by  the  plaintiff  as  to  her  condition,  nor  did 
the  witness  state  what  the  plaintiff  had  said  to  her.  It  was  no  doubt 
proper  to  show  whether  the  plaintiff  was  quite  free  from  pain,  and  rest- 
ing easy,  or,  on  the  contrary,  that  she  was  restless,  and  complaining; 
and  proof  of  the  fact  that  plaintiff  was  complaining  cannot  be  regarded 
as  proof  of  her  declarations.  It  was  a  mere  exclamation,  which  was 
proper  to  be  given.  The  same  witness  was  asked  the  following  ques- 
tion :  "Where  would  she  complain  of  pain  at  the  time  after  she  was 
hurt?"  to  which  the  witness,  over  the  objections  of  the  defendant, 
answered:  "She  complained  of  her  side,  and  under  the  spine,  in  the 
back,  and  this  ankle.     She  screamed  with  the  ankle  awfully."     We 

5 »  Part  of  opinion  omitted. 


724  •  HEARSAY  (Ch.  3 

do  not  think  this  evidence  was  competent.  It  was  the  mere  declara- 
tion of  the  plaintiff,  not  made  to  a  physician  or  expert,  and  can  only 
be  regarded  as  hearsay.  Statements  of  pain  and  sufferings,  past  and 
present,  when  not  made  to  a  physician  or  medical  expert  for  the  pur- 
pose of  enabling  him  to  form  an  opinion  with  a  view  to  treatment  or 
other  legitimate  purpose,  unless  made  at  the  time  of  the  injury,  so  as 
to  constitute  a  part  of  thef  res  gestae, 'are  inadmissible. 

The  rule,  however,  is  different  where  statements  have  been  made  to 
a  physician  called  upon  to  treat  a  person  who  may  have  received  an 
injury,  as  was  properly  said  in  Railroad  Co.  v.  Sutton,  42  111.  440,  92 
Am.  Dec.  81.  A  physician,  when  asked  to  give  his  opinion  as  to  the 
cause  of  a  patient's  condition  at  a  particular  time,  must  necessarily, 
in  forming  his  opinion,  be,  to  some  extent,  guided  by  what  the  sick 
person  may  have  told  him  in  declaring  his  pains  and  sufferings.  This 
is  unavoidable ;  and  not  only  the  opinion  of  the  expert,  founded  in 
part  upon  such  data,  is  receivable  in  evidence,  but  he  may  state  what 
his  patient  said  in  describing  his  bodily  condition,  if  said  under  cir- 
cumstances which  free  it  from  all  suspicion  of  being  spoken  with  ref- 
erence to  future  litigation,  and  give  it  the  character  of  res  gestae.  The 
same  rule  is  declared  in  Quaife  v.  Railway  Co.,  48  Wis.  524,  4  N.  W. 
658,  33  Am.  Rep.  821,  and  Barber  v.  Merriam,  11  Allen  (Mass.)  322; 
Railroad  Co.  v.  Carr  (opinion  present  term)  170  111.  478,  48  N.  E.  992. 
But,  while  this  evidence  was  incompetent,  we  do  not  regard  its  ad- 
mission sufficient  ground  for  reversing  the  judgment.  Upon  looking 
into  the  record,  it  will  be  found  that  the  same  witness  whose  testi- 
mony is  objected  to  was  present  when  the  plaintiff  was  examined  by 
the  physician  on  the  day  she  was  injured,  and  heard  the  same  state- 
ment made  by  the  plaintiff,  and  these  statements  were  testified  to  b} 
the  witness  in  her  evidence.  The  physician  also  testified  to  the  same 
things  without  objection.  The  evidence,  therefore,  being  properly  be- 
fore the  jury,  if  the  court  had  excluded  the  evidence  objected  to  by 
the  defendant,  nothing  would  have  been  gained  by  its  exclusion.  The 
error  was,  therefore,  one  which  did  no  harm,  and  hence  is  no  ground 
for  reversing  the  judgment.  No  other  question  which  calls  for  a  con- 
sideration has  been  raised  in. the  argument. 

The  judgment  of  the  appellate  court  will  be  affirmed. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  725 


BOSTON  &  A.  R.  CO.  v.  O'REILLY. 

(Supreme  Court  of  the  United  States,  1894.     158  U.  S.  334,  15  Sup.  Ct.  830, 

39  L.  Ed.  1006.) 

In  October,  1890,  Patrick  J.  O'Reilly,  in  the  circuit  court  of  the 
United  States  for  the  district  of  Massachusetts,  brought  an  action 
against  the  Boston  &  Albany  Railroad  Company  for  personal  injuries 
received  while  riding  as  a  passenger  on  one  of  that  company's  trains. 

The  trial  resulted  in  a  verdict  for  the  sum  of  $15,000,  and  to  the 
judgment  entered  for  that  amount  a  writ  of  error  was  sued  out  of  this 
court. *° 

Mr.  Justice  Shiras.  ,*  *  *  The  fourth,  eighth,  and  ninth  specifi- 
cations alleged  error  in  the  court  permitting  the  nurse  and  physician 
to  testify  that  the  plaintiff  told  them,  some  time  after  the  accident,  that 
a  piece  of  nail  had  come  out  of  his  knee,  and  in  permitting  the  phy- 
sician to  point  out  upon  the  plaintift''s  knee  the  scar  of  the  hole  out  of 
which  the  plaintiff  had  told  him  the  nail  had  come.  These  matters 
could  not  fairly  be  regarded  as  part  of  the  res  gestae,  but  were  mere 
hearsay.  Railroad  Co.  v.  O'Brien,  119  U.  S.  99,  7  Sup.  Ct.  118,  30 
L.  Ed.  299. 

If  the  record  disclosed  no  other  error,  the  admission  of  this  evidence 
might  have  been  passed  by  as  immaterial.  Still,  it  is  impossible  to 
say  that  the  defendant's  case  was  not  injuriously  affected  by  the  ad- 
mission of  the  evidence ;  and,  while  an  appellate  court  will  not  dis- 
turb a  judgment  for  an  immaterial  error,  yet  it  should  appear  beyond 
a  doubt  that  the  error  complained  of  did  not  and  could  not  have  preju- 
diced the  rights  of  the  party  duly  objecting.  Deery  v.  Crav,  5  Wall. 
807,  18  L.  Ed.  653;  Gilmer  v.  Higley,  110  U.  S.  47,  3  Sup.  Ct.  471,  28 
L.  Ed.  62. 

We  do  not  deem  it  necessary  to  notice  other  exceptions  taken  to  the 
rulings  of  the  court  below. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  directions 
to  set  aside  the  verdict  and  award  a  new  trial. 

Judgment  reversed.®^ 

60  Statement  condensed  and  part  of  opinion  omitted. 

01  And  so  in  case  of  statements  of  the  cause  of  the  injury  or  condition. 
Chapin  v.  Marlborough,  9  Gray  (Mass.)  244,  69  Am.  Dec.  281  (1857) ;  Morris- 
sey  V.  Ingham,  111  Mass.  63  (1872) ;  Roosa  v.  Boston  Loan  Co.,  132  Mass.  439 
(1882) ;   Com.  v.  Sinclair,  195  Mass.  100,  80  N.  E.  799,  11  Ann.  Cas.  217  (1907). 


726  HEARSAY  (Ch.  3 


CRONIN  V.  FITCHBURG  &  L.  ST.  RY.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1902.     181  Mass.  202,  63  N.  E. 

335,  92  Am.  St.  Rep.  40S.) 

Tort  for  injuries  alleged  to  have  been  caused  by  a  collision  of  an 
electric  car  of  the  defendant  with  a  wagon  in  which  the  plaintiff  was 
driving  on  September,  27,  1898.    Writ  dated  June  12,  1899. 

At  the  trial  in  the  Superior  Court  before  Bond,  J.,  Dr.  Frank  C. 
Richardson  of  Boston  was  called  as  a  witness  by  the  plaintiff  and 
qualified  as  an  expert  who  had  made  a  specialty  of  nervous  diseases. 
He  testified  in  regard  to  an  examination  of  the  plaintiff  made  by  him 
on  May  18,  1901,  as  follows:  "I  obtained  from  him  his  statement  of 
his  sufferings  at  the  time  of  his  accident."  Against  the  objection  of 
the  defendant,  he  further  testified  in  regard  to  that  examination  as 
follows:  "He  complained  of  suffering  considerable  pain  in  the  right 
leg,  of  backache  on  slight  exertion,  severe  pain  in  the  left  side  of 
the  head,  muscular  weakness ;  that  he  tired  easily ;  that  his  sleep 
was  restless  and  troubled ;  that  he  could  not  sleep  more  than  two 
hours  at  a  time  during  a  night ;  that  he  was  nervous,  excitable,  emo- 
tional, easily  startled ;  that  he  could  not  concentrate  his  mind  on  any- 
thing for  more  than  a  few  minutes ;  that  he  had  periods  of  tremor  of 
the  whole  body,  muscular  twitchings  and  mild  hysterical  attacks." 

The  witness  further  testified  in  regard  to  an  examination  made  by 
him  upon  October  28,  1901,  as  follows,  the  defendant  objecting:  "I  ex- 
amined him  at  my  office  in  the  presence  of  Dr.  Goray  last  evening; 
he  stated  that  he  could  see  no  change  in  his  sufifering  from  last  spring  ; 
that  he  still  had  pain  in  his  head,  pain  in  his  leg ;  that  the  pain  in  his 
leg  had  largely  given  way  to  numbness ;  that  he  had  not  attempted 
to  work  because  even  ordinary  exertion,  as  in  work  about  the  house, 
tires  him ;  that  his  sleep  is  restless  and  troubled ;  that  he  cannot  con- 
centrate his  mind  any  better  than  last  spring ;  that  he  still  has  attacks 
of  trembling  and  muscular  twitching." 

The  foregoing  evidence  was  given  in  direct  examination,  and  to 
the  admission  of  all  of  it  the  defendant  excepted.  The  witness  aft- 
erwards gave  his  opinion  as  to  the  physical  condition  of  the  plain- 
tiff. 

On  cross-examination  the  witness  testified  in  part  that  he  had  made 
two,  and  only  two,  examinations  of  the  plaintiff;  that  both  of  these  ex- 
aminations were  made  at  the  request  of  the  plaintiff's  counsel,  for 
the  purpose  of  testifying  for  the  plaintiff  in  this  case;  that  the  only 
other  time  when  the  plaintiff  came  under  his  professional  observa- 
tion was  when  the  witness  was  present  in  May,  1901,  in  the  court 
house,  when  Dr.  Thompson  made  an  examination  for  the  defendant, 
while  the  first  trial  was  in  progress ;   that  the  witness  had  never  been 


Sec.  2)  RECOGNIZED  EXCEPTIONS  727 

the  physician  of  the  plaintiff,  and  had  never  prescribed  for  him  in 
any  way,  nor  given  him  professional  advice,  nor  had  been  asked  to 
do  so. 

It  appeared  from  the  docket  record,  that  the  first  trial  of  this  case 
in  the  Superior  Court  was  on  May  20,  1901,  and  the  second  trial  on 
October  28,  1901. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $6,733; 
and  the  defendant  alleged  exceptions. 

Barker,  J.  It  is.plain  that  the  statement  by  a  party  to  a  cause  of 
his  bodily  and  nervous  symptoms,  made  long  after  the  occurrence  of 
the  accident  to  which  he  attributes  them,  and  for  purposes  connected 
with  the  preparation  for  trial  of  a  suit  in  which  his  condition  of 
health  is  material,  and  not  made  to  a  physician  for  the  purpose  of  ob- 
taining advice  or  treatment,^  ^  are  not  admissible  in  evidence  in  his 
own  favor  as  proof  of  the  truth  of  the  matters  stated.  It  is  equally 
plain  that  every  person  admitted  as  an  expert  to  testify  to  his  opinion 
may  state  in  his  testimony  the  grounds  and  reasons  for  that  opinion, 
and  that  the  party  calling  the  expert  may  put  in  evidence  those  grounds 
and  reasons  in  the  direct  examination  of  the  expert,  and  before  calling 
upon  him  to  give  his  opinion  to  the  jury.  The  statement  of  these 
rules  as  to  the  examination  of  witnesses  called  as  experts,  made  by 
Chief  Justice  Bigelow  in  Barber  v.  Merriam,  11  Allen,  322,  324,  has 
since  the  decision  of  that  case  been  considered  as  law  in  this  common- 
wealth, and  has  governed  trials.  So  well  established  is  this  doctrine 
that  the  expert,  upon  direct  examination,  and  before  giving  his  opinion 
in  evidence,  may  testify  to  the  matters  which  form  the  grounds  and 
reasons  of  that  opinion,  that  in  Koplan  v.  Gaslight  Co.,  177  Mass.  15, 
21,  58  N.  E.  183,  this  court  overruled,  without  discussion,  an  exception 
to  testimony  so  given,  and  which,  save  as  showing  the  grounds  of  the 
opinion  about  to  be  given  by  the  witness,  would  have  been  inadmissible. 

In  the  present  case  there  is  no  doubt  that  the  statements  of  the 
plaintiff"  were  hearsay,  and  of  that  particularly  dangerous  and  objec- 
tionable type — declarations  of  an  interested  party,  made  after  suit 
brought,  and  for  the  very  purpose  of  preparing  evidence  to  be  used  in 
his  own  favor  at  the  trial.  But  no  such  rule  applies  to  them  as  that 
which  excludes  private  conversations  between  husband  and  wife,  or 
communications  between  attorney  and  client.  They  may  be  admitted 
in  evidence  if  offered  by  the  adverse  party,  either  as  admissions  or  as 
contradictions  of  the  testimony  of  the  person  who  makes  them.  It 
follows  that  they  may  be  admitted  as  the  grounds  and  reasons  of  an 

62  For  tbe  \new  that  statements  made  for  the  purpose  of  enabling  the 
phvsic'iau  to  testify  are  not  admissible  for  any  purpose,  see  Greinke  v.  Chi- 
cago Citv  R.  Co.,  234  111.  564,  85  N.  E.  327  (190S) :  O'Dea  v.  Michigan  Cent. 
R.  Co.,  142  Mich.  265,  105  N.  W.  746  (1905). 

See,  a? so.  People  v.  Hill,  195  N.  Y.  16,  87  N.  E.  813  (1909),  ante,  p.  709. 

For  a  collection  of  the  <-:ises  on  this  point,  see  note  to  Shaughuessy  v.  Holt, 
21  L.  R.  A.  (N.  S.)  826  (1908). 


728  HEARSAY  (Ch.  3 

opinion  given  in  evidence,  or  to  be  so  given,  b}''  an  expert.  Being  ad- 
missible for  that  purpose,  tlie  exception  to  their  admission  was  not 
well  taken. 

Exceptions  overruled.^' 


(C)  As  to  Other  Facts 

THOMPSON  et  ux.  v.  TREVAHION. 
(Nisi  Prius,  1694.     Skin.  402.) 

Ruled  upon  evidence,  that  a  mayhem  may  be  given  in  evidence,  in 
an  action  of  trespass  of  assault,  battery,  and  wounding,  as  an  evidence 
of  wounding  per  HoLT,  Chief  Justice ;  and  in  this  case  he  also  allowed, 
that  what  the  wife  said  immediate  upon  the  hurt  received,  and  before 
that  she  had  time  to  devise  or  contrive  any  thing  for  her  own  advan- 
tage, might  be  given  in  evidence;  quod  nota;  this  was  at  Nisi  Prius 
in  Middlesex  for  wounding  of  the  wife  of  the  plaintiff.^* 

03  state  V.  Blydenburg.  135  Iowa.  264.  112  N.  W.  634,  14  Ann.  Cas.  443  (1907). 
apparently  goes  on  the  same  ground,  that  the  history  of  tlie  case  as  stated 
by  the  patient  is  admissible  only  to  explain,  or  show  the  basis  of,  the  physi- 
cian's opinion.  Compare  Com.  v.  Sinclair,  195  Mass.  100,  SO  N.  E.  799,  11 
Ann.  Cas.  217  (1907),  to  the  effect  that  a  patient's  statement  that  an  opera- 
tion had  been  performed  by  another  physician  was  not  admissible,  even  for 
this  limited  purpose. 

6  4  There  is  a  sinjrular  dearth  of  English  cases  on  this  point.  The  question 
must  have  arisen  many  times  at  trials,  but  the  cases  did  not  get  into  the 
books.  In  Aveson  v.  Kinnaird,  6  East,  188  (1805),  the  following  reference  to 
the  principal  case  appears:  "His  Lordship  (T.ord  Ellenliorou^h)  also  referreil 
to  the  case  of  Thompson  et  uxor  v.  Trevanion,  Skin.  402  [1C94].  where,  in  an 
action  by  the  husband  and  wife  for  wounding  the  wife.  Lord  C.  J.  Holt  al- 
lowed wiiat  the  wife  said  immediately  upon  the  hurt  received,  and  before  she 
had  time  to  devise  any  thing  for  her  own  advantage,  to  be  given  in  evidence 
as  part  of  the  res  gestae." 

In  Rex  V.  Foster,  6  C.  &  P.  325  (1834),  which  was  tried  before  Pi\rk  and 
Patteson,  JJ.,  and  Gurney.  B.,  statements  by  the  injured  person  as  to  the  cause 
of  the  injury  were  received  on  the  authority  of  Aveson  v.  Kinnaird, 

In  Reg.  V.  Eeddingiield.  14  Cox,  C.  C.  341  (1879).  Cock  burn,  C.  J.,  rejected 
similar  statements  of  the  injured  person  on  the  ground  that  the  act  was  then 
complete,  though  the  statements  were  made  almost  immediately  afterwards. 
In  the  controversy  which  this  case  produced,  as  to  which  see  14  Am.  L^w 
Rev.  817,  no  additional  authorities  were  cited.  In  Reg.  v.  Gibson,  Ia  R.  18  Q. 
15.  D.  537  (18S7),  it  was  assumed  without  argument  that  it  was  error  to  admit 
the  statement  of  a  third  person,  immediately  after  the  prosoculing  witness\ 
was  struck,  to  the  effect  that  the  person  who  threw  the  stone  went  into  a  cer-| 
tain  house.  There  is  nothing  in  the  report  to  indicate  the  reason  for  this  as^ 
sumption. 


Sec.  2)  RECOGNIZED   EXCEPTIONS  720 

POOL  V.  BRIDGES. 
(Supreme  Judicial  Court  of  Massachusetts,  1826.    4  Pick.  378.) 

This  was  trover  for  a  quantity  of  wool,  yarn  and  booking,  which  the 
defendant,  as  a  deputy  sheriff,  attached  and  took  away  as  the  property 
of  one  Scholfield,  who  absconded.  The  plaintiff  proved  that  a  quantity 
of  South  American  wool  was  delivered  by  him  to  Scholfield  to  be 
manufactured.  One  Ayer  testified,  that  the  plaintiff  called  on  Schol- 
field about  a  week  before  he  absconded,  in  order  to  ascertain  what 
progress  he  had  made  in  manufacturing  his  wool,  and  that  Scholfield 
then  showed  him  some  wool,  yarn  and  bocking,  which  he  said  were 
the  plaintiff's  and  which  the  plaintiff  examined;  and  he  further  testi- 
fied, that  the  wool,  yarn  and  bocking  thus  shown  were  the  same  that 
were  afterwards  attached  by  the  defendant. 

The  defendant  objected  to  the  admission  of  this  evidence ;  and  if,  in 
the  opinion  of  the  whole  Court,  it  was  improperly  admitted,  the  ver- 
dict, which  was  for  the  plaintiff,  was  to  be  set  aside  and  a  new  trial 
granted;   otherwise  judgment  was  to  be  entered  on  the  verdict. 

Parker,  C.  J.,  delivered  the  opinion  of  the  Court. 

The  only  question  is,  whether  the  testimony  of  Ayer,  in  relation  to 
the  declaration  of  Scholfield  tending  to  show  that  the  goods  attached 
were  the  property  of  the  plaintiff,  was  admissible.  If  a  mere  declara- 
tion, certainly  it  is  not  evidence,  for  Scholfield  is  alive,  and  though  prob- 
ably out  of  the  country,  proof  of  his  sayings  would  be  rejected  on  the 
general  rule  respecting  hearsay  evidence.  There  are  however  ex- 
ceptions to  the  general  rule,  depending  sometimes  upon  nice  discrimi- 
nation, which  without  close  consideration  would  seem  to  violate  the  rule 
itself.  The  cases  of  pedigree  and  some  others  recognised  in  the  books 
are  well  known  and  easily  applied;  Roscoe's  Dig.  Crim.  Ev.  (Amer. 
Ed.)  22,  n.  1 ;  2  Stark.  Ev.  (5th  Amer.  Ed.)  604  et  seq.  but  where  decla- 
rations are  admitted  as  part  of  the  res  gestae,  there  is  hardly  any  distinct 
rule  as  to  what  will  constitute  the  res  gestae  which  will  support  such 
declarations. 

The  case  before  us  is  of  this  difficult  nature.  The  property  in  ques- 
tion is  supposed  to  have  been  in  the  possession  and  under  the  control 
of  Scholfield.  It  appears  also,  that  it  was  so  situated,  in  regard  to 
other  property  of  the  same  kind  belonging  to  Scholfield  himself  or 
to  other  persons,  that  none  but  Scholfield  could  distinguish  them. 
If  he  had  been  heard  to  say  that  the  particular  parcel  in  question  be- 
longed to  the  plaintiff,  without  their  being  engaged  in  any  transaction 
relating  to  the  property  this  would  be  mere  declaration  and  hearsay. 
But  if  he  was  then  employed  in  any  act  respecting  the  goods,  such  as 
separating  different  parcels  for  the  purpose  of  distinguishing  what  be- 
longed to  one  person  and  what  to  another,  what  he  said  while  he  was 
doing  it  would  be  considered  as  a  part  of  the  transaction  and  admissible 
in  evidence.     It  would  be  like  his  labelling  the  goods  with  the  name 


730  HEARSAY  (Ch.  3 

of  the  owner,  which  though  in  one  sense  a  declaration  yet  would  be 
construed  an  act  indicative  of  proprietorship  in  the  goods.  It  gives 
some  importance  to  such  declarations,  that  they  are  made  in  the  ordi- 
nary course  of  transactions,  without  reference  to  any  controversy  or 
any  counter  claim  of  property,  and  also  that  the  declarations  are  against 
the  interest  of  the  party.  Now  the  declarations  of  Scholfield  have  these 
circumstantial  supports ;  they  were  made  at  a  time  when  there  was  no 
expectation  of  a  dispute  about  the  property,  and  they  were  against  the 
interest  of  Scholfield. 

Was  there  any  transaction  of  which  they  may  be  considered  to  be  a 
part  ?  We  think  there  was.  The  plaintiff  went  to  Andover  to  inquire 
into  the  state  of  the  wool  which  he  had  put  into  the  possession  of 
Scholfield  to  be  manufactured.  Scholfield  showed  him  certain  por- 
tions in  different  stages  of  process,  as  his  property.  This  was  an  act  or 
transaction,  and  Scholfield's  declaration  made  a  part  of  it;  and  this 
act  is  not  distinguishable  from  the  actual  separation  of  a  parcel  from 
the  common  mass,  putting  it  aside  with  the  plaintiff's  name  upon  it ; 
for  this  substantially  would  be  but  the  declaration  of  Scholfield,  and 
yet  it  cannot  be  doubted  but  that  it  might  be  proved.  See  Tompkins  v. 
Saltmarsh,  14  Serg.  &  R.  (Pa.)  275 ;  Gorham  v.  Canton,  5  Greenl. 
(Me.)  266,  17  Am.  Dec.  231;  Little  v.  Libby,  2  Greenl.  (Me.)  242,  11 
Am.  Dec.  68;  Brackett  v.  Wait,  6  Vt.  425;  Roscoe's  Dig.  Crim.  Ev. 
20,  21;  1  Stark.  Ev.  (5th  Amer.  Ed.)  36;  Davis  v.  Spooner,  3  Pick. 
288 ;   Van  Deusen  v.  Turner,  12  Pick.  533. 

We  consider  it  of  importance,  that  it  was  proved  by  unquestionable 
evidence,  that  the  plaintiff  had  wool  in  the  possession  of  Scholfield,  and 
that  the  only  question  was  whether  the  particular  parcel  attached  was 
part  of  his  property. 

Judgment  according  to  verdict.^' 


PATTEN  V.  FERGUSON. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1847.     18  N.  H,  528.) 

I 

Trespass,  quare  clausum  f  regit.  Plea,  the  general  issue.  The'  princi- 
pal question  in  controversy  related  to  the  boundary  line  between  the 
lands  of  the  parties.  Evidence  was  introduced  on  both  sides  tp  show 
acts  of  ownership  of  the  premises  in  dispute  between  the  lines  /in  con- 
troversy, by  each  of  the  parties,  and  tlieir  grantors.  Among  the  rest 
the  plaintiff  introduced  a  witness  who  testified  that  in  the  year  1809  he 
assisted  one  Gillis  in  burning  a  coal-pit  upon  the  premises  in  dispute, 
the  wood  for  which  was  cut  upon  the  land  in  dispute  immediately 
preceding  the  burning,  and  that  Gillis  at  that  time  told  him  that  he 

8  0  Qufere,  whether  the  court  would  have  applied  the  same  rule  if  the  action 
had  been  between  two  persons  who  had  left  goods  with  the  absconding  bailee? 


Sec.  2)  RECOGNIZED   EXCEPTIONS  731 

had  the  wood  for  the  coal-pit  of  one  Joseph  Patten,  now  deceased,  un- 
der whom  the  plaintiff  claims. 

To  the  admission  of  this  evidence  the  defendant  objected,  on  the 
ground  that  the  statements  of  Gillis  thus  stated  were  inadmissible. 
But  the   court  overruled  the  objection,  and  admitted   the  evidence. 

A  verdict  having  been  returned  for  the  plaintiff,  the  defendant 
moved  for  a  new  trial. 

Parker,  C.  J.  The  ruling  in  this  case  gives  to  the  declaration  of 
Gillis  an  effect,  or  rather  admissibility,  as  evidence,  which  is  not 
ordinarily  given  to  the  mere  declarations  of  third  persons,  respecting 
the  rights  or  titles  of  the  parties  to  the  suit.  The  declarations  went 
before  the  jury  as  evidence,  to  some  extent,  that  Patten,  under  whom 
the  plaintiff  claims,  had  title.  As  the  mere  declaration  of  a  third  per- 
son, it  is  clearly  inadmissible.  But  it  is  argued  that  the  declaration  is 
evidence,  because  Gillis  was  on  the  land  at  the  time,  making  coal,  and 
that  the  declaration  is  therefore  admissible  as  part  of  the  res  gestae. 
If  the  fact  was  material,  and  the  declaration  tended  to  illustrate  it,  this 
would  be  so ;  but  the  fact  that  Gillis  was  on  the  land  making  coal  is 
of  no  importance  in  the  case.  It  is  net  used  to  show  a  title  in  him  by 
either  party.  Neither  claims  any  thing  under  him.  He  was  on  the 
land  without  pretence  of  title.  The  fact  of  itself  is  entirely  immaterial, 
and  inadmissible  for  that  reason.  It  does  not  serve  to  give  significance 
to  this  fact,  or  to  explain  or  illustrate  it  in  any  way,  so  as  to  render  it 
important,  that  he  said  that  he  had  the  wood  for  the  coal-pit  from  one 
person  to  another.  If  he  cut  the  wood  by  the  authority  of  a  purchase 
from  Patten,  and  it  is  supposed  that  this  is  material  as  showing  an 
exercise  of  ownership  by  Patten,  that  fact  may  be  proved  by  the  tes- 
timony of  Gillis,  but  not  by  his  mere  declaration  without  the  sanction 
of  an  oath,  and  with  no  opportunity  for  a  cross-examination. 

The  principles  which  govern  this  case  are  well  stated  in  Downs  v. 
Lyman,  3  N.  H.  486,  cited  by  the  plaintiff,  although  the  case  is  not 
an  authority  for  him,  because  there  tlie  fact  to  which  the  declaration 
related  was,  of  itself,  when  rightly  understood,  of  some  consequence. 
Here  it  is  admitted  that  neither  the  fact  nor  the  declaration,  standing 
alone,  are  evidence ;  and  when  put  together  it  is  tlie  declaration  which 
is  significant,  and  not  the  fact.  The  fact  was  of  no  importance,  stand- 
ing alone;  and  the  declaration,  standing  alone,  was  incompetent. 
When  they  are  united,  the  unimportant  fact  is  used  as  a  vehicle  to  in- 
troduce the  incompetent  declaration. 

New  trial  granted. 


732  HEARSAY  (Ch.  3 

HILL  V.  COMMONWEALTH. 
(General  Court  of  Virginia,  1S45.    2  Grat.  594.) 

Duncan,  J.,®"  delivered  the  opinion  of  the  majority  of  the  court. 

The  prisoner  was  indicted  for  the  murder  of  Robert  R.  Smith ;  and 
v\-as  found  guilty  by  the  petit  jury  of  murder  in  the  first  degree;  and 
sentence  of  death  was  pronounced  by  the  court.     *     *     * 

The  proof  to  which  we  will  now  refer  as  exclusive  of  the  dying 
declarations,  is  as  follows:  On  the  evening  of  the  13th  of  September 
last,  (the  evening  of  the  homicide,)  the  decedent,  who  resided  18  miles 
from  Suffolk,  being  on  a  visit  to  his  estate  adjoining,  or  near  to  the 
town  of  Suffolk,  came  to  the  town,  and  was  at  the  Washington  Hotel. 
The  prisoner  who  resided  in  the  town  of  Suffolk,  casually  met  him 
there :  friendly  salutations  passed  between  them :  a  mixed  conversa- 
tion took  place  in  the  company ;  (there  being  several  persons  present ;) 
when  about  the  hour  of  7  o'clock,  the  prisoner  asked  the  decedent 
to  walk  with  him,  as  he  wished  to  say  something  to  him.  The  decedent 
complied,  and  they  walked  off  together  towards  Bayly's  storehouse ; 
which  is  about  50  feet  from  the  end  of  the  porch  of  the  tavern  from 
which  they  started :  and  Bayly's  store  is  in  view  of  persons  stationed  in 
the  end  of  the  porch.  No  person  seems  to  have  observed  the  parties 
after  they  started  on  their  walk.  The  prisoner  had  with  him  a  sword 
cane.  After  the  lapse  of  between  5  and  10  minutes,  the  decedent  was 
seen  to  approach  the  tavern,  staggering.  He  fell  before  he  got  to  the 
porch.  Some  of  the  company  who  were  in  the  porch  went  to  his  aid, 
carried  him  into  the  porch,  and  laid  him  down.  He  was  pulseless,  and 
his  countenance  was  pale  and  deathlike.  Some  of  the  persons  present 
thought  he  was  dead.  He  lay  in  this  situation  some  minutes,  when  he 
revived  a  little,  turned  himself  over  and  vomited.  Remedies  were  ap- 
plied to  restore  sensibility,  and  in  about  10  minutes  he  was  sufficiently 
restored  to  be  able  to  speak ;  and  upon  being  asked  what  ailed  him,  "he 
put  his  hand  to  his  left  breast,  and  said,  'Here  it  is,  here  it  is.'  "  "Hunt- 
er Hill  asked  me  to  walk  out,  and  stabbed  me  here."  (See  Duke's 
evidence,  page  8  of  the  record.)  His  clothes  were  opened,  and  a  wound 
disco\  ered  on  the  left  breast,  opposite  the  region  of  the  heart.  *  *  * 
But  if  we  connect  with  these  circumstances,  the  first  declaration  of  the 
decedent,  "Here  it  is,  here  it  is,"  placing  his  hand  on  his  left  breast, 
"Hunter  Hill  asked  me  to  walk  out,  and  stabbed  me  here" — as  part 
of  the  res  gestae — the  fact  of  the  killing  by  the  prisoner  is  proved  be- 
yond all  doubt ;  and  the  circumstances  before  referred  to  shew  the 
quo  animo  with  which  it  was  done.  That  this  declaration  is  part  of 
the  res  gestae,  remains  now  to  be  shewn. 

There  can  be  no  doubt  that  the  situation  and  condition  of  the  dece- 
dent after  he  received  the  wound;  his  staggering  as  he  approached  the 

•«  Statoineut  ami  j);irt  of  opinion  omitted. 


Sec.  2}  RECOGNIZED  EXCEPTIONS  733 

tavern;  his  falling;  his  pulseless  and  insensible  state;  his  vomiting; 
the  coldness  of  his  extremities;  his  physical  condition;  the  remedies 
resorted  to ;  all  he  said  and  did  up  to  the  period  of  his  death,  except 
his  declaration  as  to  tlie  commission  of  the  act,  are  all  parts  of  the 
res  gestae :  and  why  not  his  declarations  as  to  the  commission  of  the 
act?  The  reason  is,  that  he  may  have  fabricated  or  made  up  a  story. 
But  on  the  one  hand,  if  under  the  circumstances  of  the  case  he  could 
not  have  had  time  to  make  up  a  story,  and  that  the  declarations  were 
made  when  the  lis  mota  did  not  exist,  then  they  may  be  received  as 
part  of  the  res  gestae.  On  the  other  hand,  if  made  after  time  sufficient 
had  been  allowed  to  fabricate  a  story,  or  the  lis  mota  may  be  sup- 
posed to  exist,  they  are  not  to  be  considered  as  part  of  the  res  gestae. 
In  this  case  the  decedent  was  stabbed  to  the  heart ;  he  immediately  at- 
tempted to  return  to  the  tavern;  he  fell,  recovered  to  his  feet,  stag- 
gered, fell  again,  and  fainted;  and  remained  insensible  for  about  10 
minutes,  when,  and  after  the  application  of  stimulants,  he  revived  so 
as  to  be  able  to  speak ;  and  immediately  made  the  declaration  referred 
to.  Where  was  the  time  within  which  he  could  have  arranged  his- 
thoughts,  and  fabricated  a  story  ?  A  priori  a  stab  m  the  heart  would  in- 
stantaneously suspend  the  powers  of  reflection ;  *and  we  have  seen  its 
physical  effect  upon  the  deceased.  All  the  time  then  from  receiving 
tlie  stab  until  he  revived  from  his  fit  of  fainting  he  was  clearly  not  in  a 
condition  to  arrange  his  ideas  and  fabricate  a  story:  and  the  dec- 
laration was  immediate  upon  his  revival.  In  Rex  v.  Foster,  25  Eng.  C. 
L.  R.  421,  the  statements,  of  a  deceased  who  had  been  run  over  by  a 
cabriolet,  made  recently  after  receiving  the  injury,  were  allowed  as 
part  of  the  res  gestae.  So  in  Skinner  402,  referred  to  in  a  note  to  Rex 
V.  Foster,  Holt,  judge,  permitted  the  statements  of  the  wife  made 
recently  after  being  wounded  by  her  husband,  and  "before  she  had 
time  to  devise  anything  for  her  own  advantage,"  to  be  given  as  part 
of  the  res  gestae. 

All  that  is  necessary,  according  to  these  cases,  to  make  the  dec- 
laration part  of  the  res  gestae,  is  that  it  should  be  made  recently  after 
receiving  the  injury,  and  before  he  had  time  to  make  up  a  story,  "or 
to  devise  any  thing  for  his  own  advantage."  Tested  by  this  rule,  the 
statement  referred  to  is  clearly  admissible.     *     *     * 

Writ  of  error  refused. 


LUND  et  ux.  V.  INHABITANTS  OF  TYNGSBOROUGH. 
(Supreme  Judicial  Court  of  Massachusetts,  1851.     9  Cush.  36.) 

This  was  an  action  on  the  case,  tried  in  this  court  before  Fletcher, 
J.,  in  which  the  plaintiffs  sought  to  recover  damages  for  an  injury 
alleged  to  have  been  received  by  the  female  plaintiff,  in  consequence 
of  a  defect  in  a  highway  in  the  town  of  Tyngsborough,  which  the 
defendants  were  legally  bound  to  keep  in  such  condition  that  the  same 


734  HEARSAY  (Ch.  3 

might  be  safe  and  convenient  for  travellers,  with  their  horses,  teams, 
and  carriages,  at  all  seasons  of  the  year.  The  alleged  defect  con- 
sisted in  a  hole  left  open  at  the  end  of  and  extending  around  the 
mouth  of  a  culvert,  unguarded  by  any  railing  or  covering. 

[To  prove  the  extent  of  the  plaintifif's  injuries,  certain  evidence 
was  admitted,  the  nature  of  which  sufficiently  appears  in  the  opin- 
ion.    The  defendant  alleged  exceptions.] 

Fletcher,  J.® ^  *  *  *  The  only  remaining  exception  is  that  taken 
to  the  admission  in  evidence  of  several  answers  in  the  deposition  of 
Lydia  Kendall.  In  these  answers,  the  witness  states  that  the  physician, 
who  was  called  to  Mrs.  Lund  after  she  received  the  injury  for  which 
this  suit  was  instituted,  said  that  it  was  a  very  serious  injury,  and  it 
would  be  three  months,  if  not  longer,  before  she  would  have  the  use  of 
her  limb ;  and  that  he  further  said,  her  limb  was  not  broken ;  ''he  said 
it  was  worse  injured  than  though  the  bone  was  broken;  that  the  liga- 
ments were  torn  from  the  bone,  and  broken."  It  does  not  appear  by 
the  report  how  long  it  was  after  the  accident  happened  when  these 
declarations  were  made;  it  only  appears  that  they  were  made  at  the 
time  when  the  doctor  was  called  to  Mrs.  Lund,  and  examined  her 
after  she  was  injured.  The  object  of  introducing  these  declarations, 
was  to  show  the  nature  and  extent  of  the  injury.  The  defendants 
objected  to  the  admission  of  the  answers  of  the  witness,  containing 
these  declarations  of  the  physician ;  but  they  were  admitted,  and  to 
this  admission  exception  is  now  taken.  The  ground  of  the  exception  is, 
that  the  declarations  of  the  doctor  were  hearsay  merely,  and,  as  such, 
were  not  admissible.  The  fact,  which  appears  in  the  case,  that  the 
doctor  had  deceased  at  the  time  of  the  trial  does  not  affect  the  legal 
principle.  It  is  no  sufficient  reason  for  receiving  hearsay,  that  the  per- 
son is  dead;  and,  therefore,  that  is  the  best  evidence  which  can  be 
produced.  It  may  be  unfortunate  for  the  party  to  have  lost  his  evi- 
dence but  that  furnishes  no  good  reason  for  the  admission  of  incom- 
petent testimony.     *     *     * 

But  it  is  maintained,  on  the  part  of  the  plaintiffs,  that  these  dec- 
larations should  be  regarded  as  a  part  of  the  res  gestae,  and  thus 
admissible  as  original  evidence.  This  is  the  main  question  in  this 
case. 

It  is  a  well  established  principle  of  the  law,  that  declarations  which 
form  a  part  of  the  res  gestae  and  are  to  be  considered  as  a  part  of  the 
transaction,  do  not  come  under  the  head  of  hearsay,  but  are  admissible 
as  original  evidence. 

This  is  a  settled  general  rule ;  but,  like  other  general  rules,  its  ap- 
plication to  particular  cases  is  often  attended  with  much  doubt  and 
difficulty.  But  it  is  wholly  impracticable  to  bring  this  class  of  cases 
within  the  limits  of  any  clearly  dcfnied  and  positive  rules.  There  are, 
however,  certain  principles  and  tests,  which  are  simple  and  intelligible, 

«T  Part  of  opinion  omitted. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  735 

by  which  the  admission  of  this  kind  of  evidence  must  be  determined. 
Its  admission  is  not  left  to  the  discretion  of  the  presiding  judge,  as 
has  been  sometimes  supposed ;  but  is  governed  by  principles  of  law, 
which  must  be  applied  to  particular  cases  as  other  principles  are  ap- 
plied, in  the  exercise  of  a  judicial  judgment;  and  errors  of  judg- 
ment in  this  case,  as  in  other  cases,  may  be  examined  and  corrected. 
If  it  were  matter  of  discretion  merely,  there  would,  of  course,  be  no 
fixed  rules  and  no  uniformity  of  decisions;  and  the  exercise  of  this 
discretion  would  not  be  subject  to  exception  and  revision  and  correc- 
tion. 

In  a  branch  of  the  law  of  evidence  of  so  high  importance,  and  un- 
der which  questions  are  so  constantly  arising  in  practice  as  that  in 
regard  to  the  admission  of  declarations  not  made  under  oath,  nor  in 
presence  of  the  parties  in  interest,  it  is  extremely  desirable  that  the  law 
should  be  as  clearly  defined,  and  its  principles  as  fully  illustrated  and 
explained,  as  may  be  practicable.  Questions  of  this  nature  have  fre- 
quently arisen  in  this  court ;  but  the  decisions  have  been  confined  to 
the  particular  cases  in  hand,  without  any  extended  examination  of 
the  general  subject. 

It  is  proposed,  in  the  present  case,  to  consider  the  subject  some- 
what more  at  large,  and  to  endeavor  to  set  forth  and  illustrate,  with 
some  particularity,  the  principles  and  tests  by  which  this  class  of  ques- 
tions must  be  determined. 

If  a  declaration  has  its  force  by  itself,  as  an  abstract  statement,  de- 
tached from  any  particular  fact  in  question,  depending  for  its  effect 
on  the  credit  of  the  person  making  it,  it  is  not  admissible  in  evidence. 
Such  a  declaration  would  be  hearsay.  As  where  the  holder  of  a  check 
went  into  a  bank,  and,  when  he  came  out,  said  he  had  demanded  its 
payment ;  this  declaration  was  held  inadmissible  to  prove  a  demand,  as 
being  no  part  of  the  res  gestae.  This  statement  was  mere  narrative, 
wholly  detached  from  the  act  of  demanding  payment,  which  was  the 
fact  to  be  proved.  But  when  the  act  of  a  party  may  be  given  in  evi- 
dence, his  declarations,  made  at  the  time,  and  calculated  to  elucidate 
and  explain  the  character  and  quality  of  the  act,  and  so  connected 
with  it  as  to  constitute  one  transaction,  and  so  as  to  derive  credit 
from  the  act  itself,  are  admissible  in  evidence.  The  credit  which  the 
act  or  fact  gives  to  the  accompanying  declarations,  as  a  part  of  the  i 
transaction,  and  the  tendency  of  the  contemporary  declarations,  as  a 
part  of  the  transaction  to  explain  the  particular  fact,  distinguish  this 
class  of  declarations  from  mere  hearsay. 

Such  a  declaration  derives  credit  and  importance,  as  forming  a 
part  of  the  transaction  itself,  and  is  included  in  the  surrounding  cir- 
cumstances, which  may  always  be  given  in  evidence  to  the  jury  with 
the  principal  fact.  There  must  be  a  main  or  principal  fact  or  trans- 
action, and  only  such  declarations  are  admissible  as  grow  out  of  the 
principal  transaction,  illustrate  its  character,  are  contemporary  with  it, 
and  derive  some  degree  of  credit  from  it. 


736  HEARSAY  (Ch.  3 

The  res  gestns  are  different  in  different  cases ;  and  it  is  not,  perhaps, 
possible  to  frame  any  definition  wliich  would  embrace  all  the  various 
cases,  which  may  arise  in  practice.  It  is  for  the  judicial  mind  to  deter- 
mine, upon  such  principles  and  tests  as  are  established  by  the  law  of 
evidence,  what  facts  and  circumstances,  in  particular  cases,  come  with- 
in the  import  of  the  terms.  In  general,  the  res  gestze  mean  those  dec- 
larations and  those  surrounding  facts  and  circumstances,  which  grow 
out  of  the  main  transaction,  and  have  those  relations  to  it  which  have 
been  above  described. 

The  main  transaction  is  not  necessarily  confined  to  a  particular 
point  of  time,  but  may  extend  over  a  longer  or  shorter  period,  accord- 
ing to  the  nature  and  character  of  the  transaction.  Thus,  where  a 
debtor  leaves  his  house  to  avoid  his  creditors,  which  is  an  act  of 
bankruptcy,  and  goes  abroad  and  continues  abroad,  the  act  of  bank- 
ruptcy continues  during  the  continuance  abroad  for  this  purpose. 

So  declarations,  to  be  admissible,  must  be  contemporaneous  with 
the  main  fact  or  transaction ;  but  it  is  impracticable  to  fix,  by  any 
general  rule,  any  exact  instant  of  time,  so  as  to  preclude  debate  and 
conflict  of  opinion  in  regard  to  this  particular  point. 

Perhaps  the  most  common  and  largest  class  of  cases  in  which  dec- 
larations are  admissible,  is  that  in  which  the  state  of  mind  or  motive 
with  which  any  particular  act  is  done  is  the  subject  of  inquiry.  Thus, 
where  the  question  is  as  to  the  motives  of  a  debtor  in  leaving  his  house 
and  going  and  remaining  abroad,  so  as  to  determine  whether  or  not 
an  act  of  bankruptcy  has  been  committed,  his  declarations  when 
leaving  his  house  and  while  remaining  abroad,  as  to  his  motives  for 
leaving  his  house  and  for  remaining  abroad,  are  admissible  in  evi- 
dence. Such  declarations,  accompanying  the  act,  clearly  belong  to  the 
res  gestae.  They  are  calculated  to  elucidate  and  explain  the  act,  and 
they  derive  a  degree  of  credit  from  the  act.    *    *    * 

The  authorities  upon  the  subject  of  admitting  evidence  as  belonging 
to  the  res  gestae  are  numerous,  but  it  will  be  sufficient  to  refer  to 
some  of  them.     1  Greenl.  Ev.  §  108 ;    1  Starkie  Ev.  §  ?8 ;    1  Phillips, 
p.  231  (4th  Amer.  from  7th  London  Ed.);   Cowen  &.  Hill's  note,  part 
I,  pp.  585,  586;    Noyes  v.  Ward,  19  Conn.  250;    Rawson  v,  Haigh,  2 
Bing.  99;   Ridley  v.  Gyde,  9  Bing.  349;   Hadley  v.  Carter,  8  N.  H.  40 
Carter  &  Wife  v.  Buchannon,  3  Ga.  513;    Plumer  v.  French,  2  Foster 
(22  N.  H.)  450;    Scaggs  v.  Mississippi,  8  Smedes  &  M.  (Miss.)  722 
Enos  V.  Tuttle,  3  Conn.  247 ;    Pool  v.  Bridges,  4  Pick.  378 ;    Allen  v 
Duncan,  11  Pick.  308;  Commonwealth  v.  McPike,  3  Cush.  181,  50  Am 
Dec.  727;    Haynes  v.   Rutter,  24  Pick.   242;    Trial  of   Drakard,  21 
Howell's  St.  Tr.  542 ;   Gray  v.  Goodrich,  7  Johns.  (N.  Y.)  95. 

It  remains  to  apply  the  settled  principles  of  the  law  to  the  particu- 
lar case  now  under  consideration.  The  declarations  of  the  doctor  who 
was  called  to  Mrs.  Lund  after  the  accident,  and  made  an  examination, 
were  offered,  to  show  the  extent  and  nature  of  the  injury  she  had  re- 
ceived.    There  was  no  question  in  regard  to  the  examination ;    that 


Sec.  2)  RECOGNIZED   EXCEPTIONS  737 

act,  of  itself,  detached  from  the  declarations,  was  wholly  unimportant 
and  immaterial.  There  was,  therefore,  in  legal  contemplation,  no  main 
act  with  which  the  declarations  could  be  connected.  The  declarations, 
though  made  at  the  time,  were,  in  no  proper  sense,  a  part  of  the  exam- 
ination. They  merely  announced  the  results,  the  opinion  of  the  doc- 
tor, the  conclusion  at  which  he  arrived.  These  declarations  might  have 
been  made  with  precisely  the  same  effect,  at  any  subsequent  time,  a 
day  or  a  week  after  the  examination. 

The  declarations  were  mere  abstract  statements,  wholly  detached 
from  any  main  act  or  fact  admissible  in  evidence,  and  depending 
for  their  effect  entirely  on  the  credit  of  the  doctor.  They  were 
the  expression  of  a  professional  opinion,  and  had  their  weight  whol- 
ly as  such.  Such  declarations  are  mere  hearsay,  and  were  clearly 
improperly  admitted  in  evidence;  and,  for  that  reason,  a  new  trial 
must  be  granted. 

Verdict  set  aside,  and  new  trial  granted.®' 


LUBY  et  ux.  v.  HUDSON  RIVER  R.  CO. 
(Court  of  Appeals  of  New  York,  1858.    17  N.  Y.  131.) 

Appeal  from  the  Supreme  Court.  The  action  was  for  alleged  negli- 
gence in  running  a  railroad  car  drawn  by  horses  against  the  plaintiff 
Mrs.  Luby,  in  one  of  the  streets  of  New  York  city.  At  the  trial  the 
plaintiffs  called  as  a  witness  one  Mason,  a  policeman,  and  after  prov- 
ing by  him  that  he  was  on  duty  near  the  spot  where  the  accident  oc- 
curred, and  was  called  upon  by  the  persons  assembled  around  the  in- 
jured woman,  he  was  permitted,  under  exceptions  by  the  defendant's 
counsel,  to  testify  that  he  arrested  the  driver  of  the  car  which  run 
against  Mrs.  Luby.  He  was  also  permitted,  under  like  exception,  to 
testify  that  upon  arresting  the  driver  as  he  was  getting  off  the  car, 
and  out  of  the  crowd  which  surrounded  it,  he  asked  him  why  he  did 
not  stop  the  car,  to  which  the  driver  replied  that  the  brake  was  out  of 
order.  The  plaintiff  had  a  verdict  and  judgment  was  entered  there- 
upon, and  was,  upon  appeal,  affirmed  by  the  Supreme  Court  at  general 
term  in  the  first  district.    The  defendant  appealed  to  this  court. 

CoMSTocK,  J.  Mason,  the  police  officer,  was  allowed  to  testify, 
against  the  objection  of  the  defendant,  that  he  arrested  the  driver  of 
the  car,  and  that  the  driver,  on  being  arrested,  assigned  as  a  reason 
why  he  did  not  stop  the  car  that  the  brakes  were  out  of  order.  This 
took  place  directly  after  the  accident,  the  citizens  having  stopped  the 
car  and  the  driver  having  got  outside  of  the  crowd  which  had  gatlier- 

«8  See,  also,  Wright  v.  Tatham,  ante,  p.  435. 
HiNT.Ev. — 4T 


738  HEARSAY  (Ch.  3 

ed  about.     We  think  it  was  erroneous  to  receive  the  evidence,  and 
that  the  judgment  must  be  reversed  on  this  ground. 

First.  In  regard  to  the  arrest.  That  fact  vv^as  irrelevant  to  the  case, 
and  we  cannot  tell  what  influence  it  may  have  had  upon  the  minds  of 
the  jury.  It  is  true  that  the  jury  ought  not  to  attach  any  importance 
to  the  circumstance  in  trying  the  issue  before  them,  but  this  only  proves 
that  this  fact  ought  not  to  have  been  shown  for  their  consideration. 
It  certainly  has  some  tendency  to  prove  that  at  the  very  time  of  the 
transaction  tlie  defendant's  driver  was  considered  by  the  officer  and 
others  as  guilty  of  culpable  negligence.  The  question  of  his  negli- 
gence was  in  issue  and  on  trial ;  and  how  far  the  jury  were  aided  in 
their  conclusion  by  the  manner  in  which  the  driver  was  treated  by  a 
police  officer,  or  others  who  witnessed  or  were  near  the  transaction, 
it  is  impossible  for  us  to  say.  There  is  no  pretense  for  saying  that  this 
evidence  was  necessary  or  proper,  for  the  purpose  of  identifying  the 
occasion.  Indeed  I  can  see  no  reason  why  the  police  officer  was  called 
as  a  witness  at  all,  unless  for  the  irrelevant  purpose  of  proving  the  ar- 
rest and  what  the  driver  then  said. 

Second.  The  declarations  of  an  agent  or  servant  do  not  in  general 
bind  the  principal.  Where  his  acts  will  bind,  his  statements  and  ad- 
missions respecting  the  subject-matter  of  tliose  acts  will  also  bind  the 
principal,  if  made  at  the  same  time  and  so  that  they  constitute  a  part 
of  the  res  gestze.  To  be  admissible,  they  must  be  in  the  nature  of  orig- 
inal and  not  of  hearsay  evidence.  They  must  constitute  the  fact  to  be 
proved,  and  must  not  be  the  mere  admission  of  some  other  fact. 
They  must  be  made,  not  only  during  the  continuance  of  the  agency, 
but  in  regard  to  a  transaction  depending  at  the  very  time.  1  Greenl. 
Ev.  §  13;  Thallhimer  v.  Brinckerhoff,  4  Wend.  396,  21  Am.  Dec.  155; 
Bank  of  Monroe  v.  Field,  2  Hill,  445 ;  Story  on  Agency,  §§  135,  136; 
Fairlie  v.  Hastings,  10  Ves.  128;  Barker  v.  Binninger,  14  N.  Y.  271. 

In  this  case  it  seems  to  have  been  thought  material  on  the  part 
of  the  plaintiff  to  prove  that  the  brake  of  the  defendant's  car  was 
out  of  order.  Whether  this  was  or  was  not  the  direct  object  of  in- 
troducing the  declaration  of  the  driver,  such  declaration  at  all  events 
proved  the  fact,  if  the  jury  saw  fit  to  credit  his  statement.  But  the 
fact,  if  true,  could  not  be  proved  in  this  manner.  The  declaration  was 
no  part  of  the  driver's  act  for  which  the  defendants  were  sued.  It 
was  not  made  at  the  time  of  the  act,  so  as  to  give  it  quality  and  char- 
acter. The  alleged  wrong  was  complete,  and  the  driver,  when  he  made 
the  statement,  was  only  endeavoring  to  account  for  what  he  had  done. 
He  was  manifestly  excusing  himself  and  throwing  the  blame  on  his 
principals.  I  do  not  by  any  means  suggest  that  the  conduct  of  the 
servant  himself,  as  it  was  proved  on  the  trial,  was  not  so  negligent  as 
to  justify  the  verdict;  but  the  error  was  in  allowing  the  jury,  if  they 
so  pleased,  to  regard  another  material  fact  as  proved  by  a  mere  decla- 
ration of  the  agent — a  fact  which  may  possibly  have  exercised  a  de- 


Sec.  2)  RECOGNIZED  EXCEPTIONS  739 

cisive  influence  upon  the  result.    What  effect  the  jury  gave  to  the  evi- 
dence we  cannot  tell.    I  see  no  way  of  getting  over  this  difficulty. 
Judgment  reversed  and  new  trial  ordered.®* 


TRAVELERS'  INS.  CO.  OF  CHICAGO  v.  MOSLEY. 

(Supreme  Court  of  the  United  States,  1869.    8  Wall.  397,  19  L.  Ed.  437.) 

Mr.  Justice  SwaynE.'^"  *  *  *  q^j^g  other  exception  requires  a 
fuller  examination. 

Was  it  competent  to  prove  the  fall  by  the  declarations  of  the  assur- 
ed made  under  the  circumstances  disclosed  in  the  bill  of  exceptions? 

In  Thompson  and  Wife  v.  Trevanion,  Skinner,  402,  the.  action  was 
for  the  battery  and  wounding  of  the  wife.  Lord  Chief  Justice  Holt 
"allowed,  what  the  wife  said  immediately  upon  the  hurt  received,  ar;d 
before  that  she  had  time  to  contrive  or  devise  anything  for  her  own 
advantage,  to  be  given  in  evidence."  The  reporter  adds :  "Quod  nota. 
This  was  at  nisi  prius,  in  Middlesex,  for  wounding  the  wife  of  the 
plaintiff."  This  case  was  referred  to  by  Lord  Ellenborough  "with  ap- 
probation in  the'  case,  before  him  of  Aveson  v.  Kinnaird,  6  East,  197. 
In  that  case,  Lawrence,  Justice,  in  answer  to  the  objection,  that  such 
evidence  was  hearsay,  said :  "It  is  in  every  day's  experience  in  actions 
of  assault,  that  what  a  man  has  said  of  himself,  to  his  surgeon,  is  evi- 
dence to  show  what  he  has  suffered  by  the  assault."    Id.  19L 

The  King  v.  Foster,  6  Carrington  &  Payne,  325,  was  an  indictment 
for  manslaughter,  for  kilHng  the  deceased  by  driving  a  cab  over  him. 
A  wagoner  was  called  as  a  witness  for  the  prosecution.  He  stated  that 
he  saw  the  cab  drive  by  at  a  very  rapid  rate,  but  did  not  see  the  acci- 
dent, and  that  immediately  after,  on  hearing  the  deceased  groan,  he 
went  to  him  and  asked  him  what  was  the  matter.  The  counsel  for 
the  prisoner  objected,  that  what  was  said  by  the  deceased,  in  the  ab- 
sence of  the  prisoner,  could  not  be  received  in  evidence. 

Gurney,  Baron,  said  that  what  the  deceased  said  at  the  instant,  as 
to  the  cause  of  the  accident,  was  clearly  admissible. 

Park,  Justice,  said  that  it  was  the  best  possible  testimony  that,  un- 
der the  circumstances,  could  be  adduced  to  show  what  knocked  the  de- 
ceased down.  Mr.  Justice  Patterson  concurred.  The  prisoner  was  con- 
victed. 

In  the  Commonwealth  v.  McPike,  3  Cush.  (Mass.)  181,  50  Am.  Dec. 
727,  the  indictment,  as  in  the  preceding  case,  was  for  manslaughter. 

«9  Accord:  Ruschenberg  v.  Southern  Electric  R.  Co.,  161  Mo.  70,  61  S.  W.  626 
(1900)  like  principal  case. 

See,  also,  Vicksburg  &  M.  R.  Co.  v.  O'Brien,  119  U.  S.  99,  7  Sup.  Ct.  118,  30  L. 
Ed.  299  (1SS6),  excluding  statement  of  engineer  as  to  the  rate  of  speed  at  the 
time  of  the  accident. 

TO  For  the  facts  of  this  case,  see  ante,  p.  716.  Part  of  opinion  of  Swayne, 
J.,  is  omitted.  • 


740  HEARSAY  (Ch.  3 

The  defendant  was  charged  with  killing  his  wife.  It  appeared  that, 
the  deceased  ran  up  stairs  from  her  own  room,  in  the  nighi,  crying 
murder,  and  bleeding.  Another  woman,  into  whose  room  she  was  ad- 
mitted, went,  at  her  request,  for  a  physician.  A  third  person,  who 
heard  her  cries,  went  for  a  watchman,  and,  on  his  return,  proceeded 
to  the  room  where  she  was.  He  found  her  on  the  floor,  bleeding  pro- 
fusely. She  said  the  defendant  had  stabbed  her.  The  defendant's 
counsel  objected  to  the  admission  of  tliis  declaration  in  evidence.  The 
objection  was  overruled.  The  Supreme  Court  of  Massachusetts  held, 
that  the  evidence  was  properly  admitted.  It  was  said  that  the  declara- 
tion was  "of  the  nature  of  res  gestae,"  and  that  the  time  when  it  was 
made  was  so  recent,  after  the  injury  was  inflicted,  as  to  justify  receiv- 
ing it  upon  that  ground. 

It  is  not  easy  to  distinguish  this  case  and  that  of  The  King  v.  Foster, 
in  principle,  from  the  case  before  us,  as  regards  the  point  under  con- 
sideration. 

In  Aveson  v.  Kinnaird,  it  was  said  by  Lord  Ellenborough,  that  the 
declarations  were  admitted  in  the  case  in  Skinner,  because  they  were 
a  part  of  the  res  gestae. 

To  bring  such  declarations  within  this  principle,  generally,  they  must 
be  contemporaneous  with  the  main  fact  to  which  they  relate.  But  this 
rule  is,  by  no  means,  of  universal  application.  In  Rawson  v.  Haigh, 
2  Bing.  99,  a  debtor  had  left  England  and  gone  to  Paris,  where  he  re- 
mained. The  question  was,  whether  his  departure  from  England  was 
an  act  of  bankruptcy,  and  that  depended  upon  the  intent  by  which  he 
was  actuated.  To  show  this  intent,  a  letter  written  in  France,  a  month 
after  his  departure,  was  received  in  evidence.  Upon  full  argument,  it 
was  held  that  it  was  properly  received.  Baron  Park  said:  "It  is  im- 
possible to  tie  down  to  time  the  rule  as  to  the  declarations.  We  must 
judge  from  all  the  circumstances  of  the  case.  We  need  not  go  the 
length  of  saying,  that  a  declaration,  made  a  month  after  the  fact,  would, 
of  itself,  be  admissible;  but  if,  as  in  the  present  case,  there  are  con- 
necting circumstances,  it  may,  even  at  that  time,  form  a  part  of  the 
whole  res  gestae." 

Where  a  peddler's  wagon  was  struck  and  the  peddler  injured  by  a 
locomotive,  the  Supreme  Court  of  Pennsylvania  said :  "We  cannot  say 
that  the  declaration  of  the  engineer  was  no  part  of  the  res  gesta;.  It 
was  made  at  the  time — in  view  of  the  goods  strewn  along  the  road  by 
the  breaking  up  of  the  boxes — and  seems  to  have  grown  directly  out  of 
and  immediately  after  the  happening  of  the  fact."  The  declaration 
was  held  to  be  "a  part  of  the  transaction  itself."  Hanover  Railroad  Co. 
v.  Coyle,  55  Pa.  402. 

In  the  complexity'  of  human  affairs  what  is  done  and  what  is  said 
are  often  so  related  that  neither  can  be  detached  without  leaving  the 
residue  fragmentary  and  distorted.  There  may  be  fraud  and  falsehood 
as  to  both  ;  but  there  is  no  ground  of  objection  to  one  that  does  not 
exis)  equally  as  to  tlie  other.    To  reject  the  verbal  fact  would  not  un- 


Sec.  2)  RECOGNIZED   EXCEPTIONS  741 

frequently  have  the  same  effect  as  to  strike  out  the  controlling  member 
from  a  sentence  or  the  controlling  sentence  from  its  context.  The  doc- 
trine of  res  gesta;  was  considered,  by  this  court,  in  Beaver  v.  Taylor, 
1  Wall.  637,  17  L.  Ed.  601.  What  was  said  in  that  case  need  not  be 
repeated.  Here  the  principal  fact  is  the  bodily  injury.  The  res  gestae 
are  the  statements  of  the  cause  made  by  the  assured  almost  contempo- 
raneously with  its  occurrence,  and  those  relating  to  the  consequences 
made  while  the  latter  subsisted  and  were  in  progress.  Where  sickness 
or  affection  is  the  subject  of  inquiry,  the  sickness  or  affection  is  the 
principal  fact.  The  res  gestae  are  the  declarations  tending  to  show  the 
reality  of  its  existence,  and  its  extent  and  character.  The  tendency  of 
recent  adjudications  is  to  extend  rather  than  to  narrow,  the  scope  of 
the  doctrine.  Rightly  guarded  in  its  practical  application,  there  is  no 
principle  in  the  law  of  evidence  more  safe  in  its  results.  There  is. none 
which  rests  on  a  more  solid  basis  of  reason  and  authority.  We  think 
it  was  properly  applied  in  the  court  below. 

In  the  ordinary  concerns  of  life,  no  one  would  doubt  the  truth  of 
these  declarations,  or  hesitate  to  regard  them,  uncontradicted,  as  con- 
clusive. Their  probative  force  would  not  be  questioned.  Unlike  much 
other  evidence,  equally  cogent  for  all  the  purposes  of  moral  conviction, 
they  have  the  sanction  of  law  as  well  as  of  reason.  The  want  of  this 
concurrence  in  the  law  is  often  deeply  to  be  regretted.  The  weight  of 
this  reflection,  in  reference  to  the  case  under  consideration,  is  increas- 
ed by  the  fact,  that  what  was  said  could  not  be  received  as  "dying 
declarations,"  although  the  person  who  made  tliem  was  dead,  and 
hence,  could  not  be  called  as  a  witness. 

Judgment  affirmed.'^ ^ 


NEW  JERSEY  STEAMBOAT  CO.  v.  BROCKETT. 

(Supreme  Court  of  the  United  States,  1886.     121  U.  S.  637,  7  Sup.  Ct.  1039, 

30  L.  Ed.  1049.) 

Mr.  Justice  Harlan.''^  ♦  *  *  'pj^g  whole  case  was  thus  fairly 
placed  before  the  jury  upon  the  issue  as  to  whether  the  defendant's 
servants,  in  executing  its  regulation  as  to  deck  passengers,  used  un- 
warrantable force,^^  and  thereby  caused  the  injuries  of.  which  the 
plaintiff  complains. 

71  See  the  dissenting  opinion  of  Justice  Clifford,  urging  the  distinction  that 
in  other  cases  there  was  independent  proof  of  the  principal  fact  (the  accident), 
while  here  the  statement  was  the  only  evidence  to  establish  such  fact. 

T2  Statement  and  part  of  opinion  omitted. 

7  8  It  appeared  that  the  plaintiff,  a  deck  passenger,  had  gone  to  sleep  on 
some  freight  in  a  part  of  the  boat  where  such  passengers  were  not  allowed. 
According  to  his  contention,  the  employes  of  the  boat  assaulted  him  without 
warning  and  violently  removed  him,  inllicting  serious  injuries;  according  to 
the  defense,  the  plaintiff  refused  to  leave  this  part  of  the  boat,  and  resisted 
the  attempt  to  remove  him.  and  his  injuries  resulted  from  an  accidental  over- 
turning of  some  boxes  in  the  struggle. 


742  HEARSAY  (Ch.  3 

One  objection  made  by  the  defendant  to  tlie  admission  of  evidence  de- 
serves to  be  noticed.  The  plaintift  in  his  evidence  described  tlie  manner 
in  which,  as  is  contended,  he  was  dragged  by  the  watchman  from  the 
boxes.  After  stating  that  he  was  thrown  to  the  floor,  and  was  being 
roughly  pushed  by  the  watchman,  he  proceeded :  "Then  I  saw  another 
man  coming  with  the  uniform  of  the  boat  on,  and  the  cap,  and  he 
said :  'All  such  men  as  you  ought  to  be  killed.'  I  says,  'What  do  you 
want  to  kill  me  for?'  He  says,  'You  farmers  are  so  stingy-,  you  are  too 
sting}'  to  buy  a  state-room,  and  you  ought  to  be  killed.'  I  said,  'You 
ought  not  to  call  me  sting}^'  Then  he  said,  'Have  you  looked  at  your 
ticket  ?'  I  think  he  had  'third  assistant  mate'  on  his  cap ;  the  cap  had 
a  yellow  cord,  the  same  as  the  officers  of  the  boat  wore."  It  appeared 
in  proof  that  the  person  here  referred  to  was  one  of  the  mates  of  the 
Richmond.  The  defendant  objected,  at  the  trial,  to  the  competency 
of  the  statements  of  the  mate.  The  objection  was  overruled,  and  an 
exception  taken. 

It  is  now  insisted  that  the  defendant  is  not  responsible  for  the  brutal 
language  of  its  servants,  and  that  the  declarations  of  the  mate  to  the 
plaintiff  were  not  competent  as  evidence  against  the  carrier.  We  are 
of  opinion  that  these  declarations  constitute  a  part  of  the  res  gestae. 
They  were  made  by  one  servant  of  the  defendant  while  assisting  an- 
other servant  in  enforcing  its  regulation  as  to  deck  passengers.  They 
were  made  when  the  watchman  and  the  mate,  according  to  the  evidence 
of  the  plaintiff,  were  both  in  the  very  act  of  violently  "pushing"  him, 
while  in  a  helpless  condition,  to  that  part  of  the  boat  assigned  to  deck 
passengers.  Plainly,  therefore,  they  had  some  relation  to  the  inquiry 
whether  the  enforcement  of  that  regulation  was  attended  with  unneces- 
sary or  cruel  severity.  They  accompanied  'and  explained  the  acts  of 
the  defendant's  servants  out  of  which  directly  arose  the  injuries  in- 
flicted upon  the  plaintiff.  Vicksburg  &  M.  R.  Co.  v.  O'Brien,  119  U.  S. 
99,  105,  7  Sup.  Ct.  118,  30  L.  Ed.  299;  Ohio  &  M.  R.  Co.  v.  Porter,  92 
111.  437,  439;  Toledo  &  W.  Ry.  Co.  v.  Goddard,  25  Ind.  190,  191.  As 
bearing  upon  this  point,  it  may  be  stated  that  the  jury  were  instructed 
that  the  case,  as  presented,  did  not  authorize  vindictive  or  punitive 
damages,  and  that  in  no  event  could  tliey  award  the  plaintiff  any 
larger  amount  than  would  reasonably  compensate  him  for  the  in- 
juries received  ;  thus  guarding  against  undue  weight  being  given  to  the 
harsh  words  of  the  company's  servants,  apart  from  their  acts.    *    *    * 

Judgment  affirmed. 


Sec.  2)  RECOGNIZED  EXCEPTIONS  743 

BARKER  V.  ST.  LOUIS,  I.  M.  &  S.  RY.  CO. 

'  (Supreme  Court  of  Missouri,  1894.     12G  Mo.  143,  28  S.  W.  8G6.) 

Barclay,  J.^^  This  is  an  action  to  recover  damages  for  personal 
injuries  sustained  by  plaintiff  by  reason  of  his  alleged  unlawful  ejection 
from  defendant's  train.     *     *     * 

Plaintiff's  testimony  was  to  the  effect  that  he  was  ejected  from  the 
rear  platform  of  the  last  car  of  one  of  defendant's  passenger  trains  by 
the  conductor  and  brakeman,  one  dark  night,  about  10  or  11  o'clock,  in 
September,  1890,  without  cause,  while  the  train  was  in  motion,  and 
in  a  dangerous  place.  On  the  other  hand,  defendant's  evidence  ac- 
counted for  his  ejection  by  his  refusal  to  pay  fare,  insulting  conduct  on 
his  part  towards  fellow  passengers,  particularly  women;  negatived 
all  unnecessary  force,  and  any  unlawful  act  by  defendant's  agents,  and 
especially  that  he  was  ejected  while  the  train  was  in  motion.  During 
plaintiff's  case,  one  of  his  witnesses  was  allowed  to  testify  that  he 
(the  witness)  was  in  the  smoking  car  when  a  stop  occurred.  After  that 
stop,  the  witness  started  back  to  the  rear  of  the  train.  He  met  a  man 
on  the  way,  who  told  him  of  the  fact  that  plaintiff  had  been  ejected. 
\yitness  then  entered  the  last  car,  from  the  rear  end  of  which  plaintiff 
had  been  put  oft",  and  his  testimony  then  goes  on  thus :  "I  went  right 
in.  I  rushed  in  the  car,  and  asked  Mr.  Howe  if  he  put  that  man  off, 
and  he  said  he  did.  I  asked  him  to  stop  and  get  him.  I  told  him  I 
was  afraid  he  was  hurt,  and  he  just  remarked  that  he  ought  to  have 
broke  his  darned  neck,  or  damned  neck;  I  couldn't  say  for  certain 
which  it  was."  This  testimony  was  objected  to  as  incompetent,  irrele- 
vant, and  calculated  to  mislead  the  jury;  but  the  objection  was  over- 
ruled, and  defendant  duly  excepted.  The  court  remarked,  in  making 
the  ruling:    "The  declarations  of  Captain  Howe  are  competent." 

The  witness  above  quoted  testified,  on  his  direct  examination,  that 
this  conversation  with  the  conductor,  Mr.  Howe,  took  place  about  8  or 
10  feet  from  the  front  door  of  the  rear  passenger  car,  and  that  the  train 
"had  stopped  some  time  before  that."  On  his  cross-examination,  he 
further  said,  on  this  point  (in  answer  to  a  question  as  to  the  interval  of 
time  between  the  stopping  of  the  train  and  his  start  from  the  smoking 
car),  that,  to  the  best  of  his  knowledge,  it  was  8  or  10  minutes.  This 
statement  is  thought  by  some  of  my  learned  colleagues  to  have  been  in- 
tended by  the  witness  to  refer  to  some  other  "stop"  than  that  at  which 
plaintiff  was  put  off.  At  all  events,  it  is  clear  that  the  conversation 
with  the  conductor  was  not  later  than  these  8  or  10  minutes  after  the 
ejectment.  It  may  have  been  earlier;  but  it  was  plainly  after  the  fact, 
and  after  the  conductor  had  finished  the  act,  and  had  gone  to  the  other 
end  of  the  car,  where  he  met  Mr.  Johnson,  the  witness.     The  whole 

T  4  Part  of  opinion  of  Barclay,  J.,  and  dissenting  opinion  of  Macfarlaue,  J., 
omitted. 


744  HEARSAY  (Ch.  3 

evidence  does  not  bring  that  conversation  into  any  other  relation  to 
the  act  of  plaintiff's  ejection  than  is  indicated  by  tlie  facts  given  above. 
The  question,  then,  is,  was  the  conversation  admissible?  The  main 
ground  on  which  plaintiff  seeks  to  justify  its  admission  is  that  it 
formed  a  part  of  the  res  gestae.  On  that  ground  my  learned  Brother 
Macfarlane  has  sustained  its  admissibility,  though,  it  seems  to  me, 
he  apparently  experiences  some  difficulty  in  reaching  that  result.  In 
Missouri  it  is  too  well  settled  by  precedents  to  admit  of  doubt  that  no 
such  conversation  could  be  given  in  evidence  with  the  force  of  an 
admission  by  defendant.  Price  v.  Thornton  (1846)  10  Mo.  135  ;  Rogers 
V.  McCune  (1854)  19  Mo.  558;  McDermott  v.  Railroad  Co.  (1881)  73 
Mo.  516,  39  Am.  Rep.  526;  Adams  v.  Railroad  Co.  (1881)  74  Mo. 
553,  41  Am.  Rep.  333;  Aldridge  v.  Furnace  Co.  (1883)  78  Mo.  559; 
Devlin  v.  Railway  Co.  (1885)  87  Mo.  545.  The  conductor  was  em- 
ployed to  represent  the  company  in  the  management  and  control  of 
its  train.  The  company  was  answerable  for  his  actions  within  the  fair 
scope  of  that  employment.  But  the  company  was  certainly  not  bound 
by  any  declaration  of  his  motives  which  did  not  accompany  or  form 
part  of  some  act  or  transaction  within  the  apparent  line  of  the  service 
for  which  he  was  employed. 

But  it  is  needless  to  again  go  over  the  ground  which  the  last  group 
of  decisions  covers.  Under  those  cases  it  is  plain  that,  if  the  conver- 
sation between  the  witness  and  the  conductor  in  this  case  has  any 
proper  standing  as  evidence,  it  cannot  be  as  an  admission,  but  must  be 
as  a  part  of  that  essential  or  descriptive  matter  belonging  to  the  main 
transaction  itself  which  the  law  calls  "res  gestae,"  for  want  of  any  Eng- 
lish term  equally  expressive.  It  is  far  from  my  present  purpose  to 
attempt  any  sort  of  definition  of  "res  gestae."  Definitions  are,  no  doubt, 
useful  and  necessary  to  impart  general  conceptions  of  the  subjects  with 
which  jurisprudence  deals;  but  they  do  not  always  suffice  to  solve  the 
difficukies  met  in  the  practical  administration  of  law.  In  the  case  at 
hand,  the  trainmen  ejected  the  plaintiff  from  the  train  a  few  minutes, 
at  least,  before  the  conversation  in  question  took  place.  The  former 
act  is  the  fact  with  which  the  conversation  must  be  connected  as  a  cir- 
cumstance, to  bring  the  conversation  properly  into  the  res  gestae. 

The  conversation  had  two  distinct  bearings  as  a  piece  of  evidence: 
First,  it  embraced  an  implied  admission  that  the  conductor  had  put 
the  plaintiff  off  the  train ;  and,  secondly,  it  indicated  motive, — that  is 
to  say,  hostility  to  plaintiff.  Proof  of  the  former  we  might  overlook  as 
harmless,  having  no  prejudicial  effect  on  defendant's  rights ;  for  both 
sides  admitted  that  plaintiff  was  ejected  from  the  train.  La  Duke  v. 
Township  of  Exeter  (1893)  97  Mich.  450,  56  N.  W.  851,  Z7  Am.  St. 
Rep.  357.  But  upon  the  question  of  the  conductor's  motive  of  hostility 
to  plaintiff  in  ejecting  him  the  conversation  was  vitally  material,  and 
could  not  justly  be  considered  harmless,  in  view  of  the  issue  of  exem- 
plary damages  which  the  court  saw  fit  to  submit  to  the  jury.  The 
plaintiff  was  not  entitled  (as  against  the  present  defendant)  to  prove 


Sec.  2>  RECOGNIZED  EXCEPTIONS  745 

that  motive  as  against  the  company  by  a  declaration  of  the  conductor 
after  the  fact,  as  the  Missouri  cases  already  mentioned  show. 

The  interval  of  time  after  the  main  fact  is  not,  of  itself,  of  control- 
ling importance,  though  entitled  to  weighty  consideration  in  determin- 
ing what  are  res  gestze.  The  testimony  indicates  that  the  conversation 
of  the  witness  with  the  conductor  had  no  connection  whatever  with 
the  scene  out  of  which  the  alleged  cause  of  action  arises.  Nor  was 
the  conductor's  statement  in  any  way  connectible  with  that  scene  as  a 
circumstance  of  it.  It  was  an  entirely  independent  event,  notwith- 
standing it  occurred  within  a  comparatively  short  time  after  the  act  in 
which  plaintiff  played  a  part.  But,  so  far  as  concerns  any  relation  be- 
tween the  ejection  of  plaintiff  and  the  conversation,  the  latter  might 
as  well  have  occurred  eight  or  ten  days,  as  two  or  three  or  ten  minutes, 
afterwards.  Mere  thoughts  or  feelings  engendered  by  an  occurrence 
do  not,  in  my  opinion,  form  of  themselves  a  sufficiently  substantial  con- 
necting link  between  a  fact  and  the  subsequent  talk  of  an  eyewitness 
about  it  to  make  that  talk  a  part  of  the  res  gestae  of  the  fact.  The  sug- 
gestion to  that  effect  in  the  learned  opinion  of  my  Brother  MacFar- 
i.ANE  does  not,  with  due  respect,  seem  to  me  maintainable,  in  its  ap- 
plication to  the  case  at  bar.  Without  attempting  to  declare  any  gen- 
eral rule  as  to  what  matters  constitute  res  gestae,  and  confining  the 
ruling  to  the  immediate  facts  of  this  case,  it  would  seem  to  me  very 
clear  (were  it  not  for  the  contrary^  opinion  of  some  of  my  associates) 
that  the  conductor's  declaration  is  no  part  of  the  res  gestae  in  the  case 
before  us.     In  my  opinion  the  court  should  have  excluded  it. 

2.  Nor  can  it  matter,  in  the  result,  that  the  defendant's  counsel,  on 
cross-examination,  asked  the  witness  to  repeat  his  account  of  the 
interview  with  the  conductor.  That  course  did  not  amount  to  a  waiver 
of  the  right  to  urge  the  exception  already  saved  to  the  ruling  of  the 
court  in  admitting  that  interview.  Counsel  might  properly  conform 
to  that  ruling  for  the  purposes  of  the  trial,  without  thereby  waiving  the 
right  to  review  the  admission  of  incompetent  evidence  that  had  come 
in,  over  his  objection.  After  that  evidence  was  before  the  jur>',  he 
might  then  combat  it  or  meet  it,  as  best  he  might,  without  waiving  the 
exception  alreadv  taken.  Tobin  v.  Railroad  Co.  (Mo.  Sup.  1891)  18 
S.  W.  996;   Martin  v.  Railroad  Co.  (1886)  103  N.  Y.  626,  9  N.  E.  505. 

In  my  opinion,  the  judgment  should  be  reversed,  and  the  cause  re- 
manded, for  the  reasons  above  given.     It  is  so  ordered. 

Gantt,  Sherwood,  and  Burgess,  JJ.,  concur.  Black,  C.  J.,  and 
Brace  and  MacfarlanE,  TJ-,  dissent. 


'46  HEARSAY  (Ch.  3 


EASTMAN  V.  BOSTON  &  M.  R.  R. 

(Supreme  Judicial  Court  of  Massachusetts,  1S96.     165  Mass.  342,  43 

N.  E.  115.) 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  while  in  the 
defendant's  employ  as  a  freight  conductor.  At  the  trial  in  the  Superior 
Court,  before  Blodgett,  J.,  there  was  evidence  tending  to  show  that 
the  plaintiff,  while  in  the  exercise  of  due  care,  and  in  the  perform- 
ance of  his  duties,  stepped  onto  the  railroad  track  in  Newburyport, 
in  front  of  a  coal  car,  for  the  purpose  of  unsetting  a  brake ;  that  after 
he  had  effected  this  he  turned  to  step  off  the  track,  caught  his  foot 
in  an  unblocked  guard-rail,  was  thrown  down  and  run  over  by  one 
or  more  wheels  of  the  car,  on  account  of  which  it  was  necessary 
to  amputate  his  leg ;  that  after  the  accident  the  train  was  divided, 
and  the  plaintiff,  who  remained  on  the  ground  for  a  few  minutes, 
was  then  removed  to  the  side  of  the  track,  and  was  afterwards 
taken  to  the  hospital  in  Newburyport ;  and  that  while  he  was  so  lying 
on  the  ground,  or  about  the  time  when  he  was  taken  up,  he  made  a 
statement  to  one  Holland  as  to  how  the  accident  happened. 

Holland,  who  was  a  brakeman  and  saw  the  accident,  testified  that 
he  got  to  the  plaintiff  within  a  minute  after  the  accident.  "Q.  Before 
he  got  up,  and  while  he  was  there,  did  he  state  to  you  how  it  oc- 
curred? A.  Not  before  I  got  to  him.  Q.  When  you  got  there,  I  say. 
A.  No,  sir,  Q,  Did  he  at  any  time  make  a  statement  of  how  it  hap- 
pened? A.  He  did.  Q.  Now,  I  want  to  know  when  that  was.  A. 
Well,  it  wasn't  more  than, — time  flies  very  quick, — it  wasn't  more  than 
five  minutes  after  I  split  the  cars  and  took  him  out.  O.  Not  more  than 
five  minutes?  A.  No,  sir,  I  don't  think  it  was.  Q.  Was  it  before 
you  had  taken  him  up,  or  after  you  had  taken  him  up  ?  A.  I  think  it 
was  about  the  time  we  were  taking  him  up.  Q.  Now  I  want  to  refresh 
your  memory  a  little.  I  want  to  know,  now,  if  you  told  me,  in  the 
court  room  yesterday, — in  the  ante  room  yesterday, — that  he  made  the 
statement  to  you  within  a  half  minute  after  the  accident  happened  ?  A. 
No,  sir ;  I  don't  think  I  did.  I  might  have  said  it,  but  I  don't  think  I 
did.  Half  a  minute  after  it  happened  is  a  very  short  time.  Q.  Now, 
you  put  it  how  long  after  it  happened?  A.  About  five  minutes,  I 
should  judge.  Time  flies  very  quick.  Q.  You  say  it  was  about  the  time 
he  was  taken  up  from  the  track?  A.  Yes,  about  the  time  we  were  tak- 
ing him  out." 

The  witness  would  have  testified  that  the  plaintiff  stated  that  the  ac- 
cident was  caused  by  catching  his  foot  in  an  unblocked  guard-rail,  and 
was  asked  what  the  statement  of  the  plaintiff  was,  but  it  was  excluded, 
and  plaintiff  excepted.  The  jury  returned  a  verdict  for  the  defendant, 
and  the  plaintiff  alleged  exceptions. 

At,i,i:\,  J.  The  statements  by  the  deceased  were  sinii)ly  a  narrative 
of  what  had  happened,  and  were  not  admissible  as  part  of  the  res 


Sec.  2)  RECOGNIZED  EXCEPTIONS  747 

gestae.     Lane  v.  Bryant,  9  Gray,  245,  69  Am.  Dec.  282;    Com.   v. 
Hackett,  2  Allen,  136;  Com.  v.  McLaughlin,  5  Allen,  507;  Williamson 
V.  Railroad  Co.,  144  Mass.  148,  10  N.  E.  790. 
Exceptions  overruled.^ "^ 


STATE  V.  HUDSPETH. 

(Supreme  Court  of  Missouri,  1900.     159  Mo.  178,  60  S.  W.  1.36.) 

Burgess,  J.''  At  the  June  term,  1898,  of  the  criminal  court  of 
Jackson  county,  the  defendant  was  convicted  of  murder  in  the  second 
degree,  and  his  punishment  fixed  at  10  years'  imprisonment  in  the  pen- 
itentiary, for  having  theretofore  at  said  county  shot  to  death,  with  a 
double-barrel  shotgun,  one  Joseph  W.  Kessner.     *     *     * 

The  witness  Kettle,  immediately  after  coming  to  where  deceased 
was  lying,  went  to  Buckner,  about  four  miles  away,  for  a  doctor.  He 
used  a  buggy  and  horse  belonging  to  Mrs.  Harris,  at  Lake  City.  The 
horse  was  already  harnessed  to  the  buggy,  which  was  standing  in  the 
street.  He  drove  to  Buckner  and  back  as  fast  as  the  horse  could  go, — 
"got  all  he  could  get  out  of  him."  Witness  thought  it  took  him  about 
50  minutes  to  go  to  Buckner  and  back.  Defense  offered  to  show  by 
Kettle  that  as  soon  as  he  returned  from  Buckner  he  went  into  Van- 
cleave's  store,  where  Kessner  was  still  lying,  and  that  Kessner  then 
said  to  Mrs.  Kessner  or  Mary  Hudspeth,  "If  you  hadn't  taken  that 
gun  away  from  me,  it  would  have  been  different."  This  offer  was  ex- 
cluded by  the  court,  and  defendant  excepted.     *     *     * 

It  is  argued  that  the  court  erred  in  excluding  the  testimony  of  the 
witness  Kettle  as  to  the  statement  of  deceased  made  at  the  place  of  the 
shooting,  and  in  excluding  the  testimony  of  Samuel  Way  as  to  the 
statement  or  declaration  of  deceased  to  Joseph  Hudspeth,  made  at 
the  place  of  the  shooting,  and  immediately  upon  his  seeing  said  Jos- 
eph. The  statement  of  the  deceased  which  defendant  proposed  to 
prove  by  Kettle  was  made  about  50  minutes  after  he  was  shot,  and 
the  statement  of  deceased  which  defendant  proposed  to  prove  by  Sam- 
uel Way  was  made  about  1  hour  after  deceased  was  shot.  The  ques- 
tion is,  were  these  statements  admissible  as  part  of  the  res  gestae? 
When  this  case  was  here  before,  we  ruled  that  a  similar  statement 
claimed  to  have  been  made  by  the  deceased  in  the  presence  of  other 
parties  immediately  after  the  shooting  was  admissible  in  evidence,  as 
part  of  the  res  gestae ;  and  it  must  follow  that  proof  of  the  statements 
of  deceased  to  the  same  eft'ect  made  to  other  persons  50  minutes  or  an 
hour  after  the  shooting  was  also  admissible  for  the  same  reason,  un- 

7  6  Compare  Eby  v.  Travelers'  Ins.  Co.  of  Hartford,  Conn.,  258  Pa.  525,  102 
Atl.  209  (1917*),  admitting  a  patient's  statements  made  about  15  minutes  after 
a  fit  of  coughing,  and  as  soon  as  he  could  speak,  to  the  effect  that  he  had 
swallowed  some  bristles  which  came  loose  from  his  toothbrush. 

7  6  Parts  of  opinion  omitted. 


748  HEARSAY  (Ch.  3 

less  the  time  which  elapsed  after  the  shooting  until  those  statements 
were  made  rendered  proof  of  them  inadmissible.  As  a  rule,  the 
statements  of  neither  parties  nor  bystanders,  made  after  the  event, 
are  admissible  in  evidence,  but  this  is  not  so  when  the  statements  are 
part  of  the  res  gestae,  and  "it  is  not,  however,  necessary  that  said 
declarations,  to  be  part  of  the  res  gestae  should  be  precisely  coincident 
with  the  act  under  trial.  It  is  enough  if  they  spring  from  and  are  made 
under  circumstances  which  preclude  the  idea  of  design. 

The  test  is,  were  the  declarations  the  facts  talking  through  the  party, 
or  the  party's  talk  about  the  facts.  Instinctiveness  is  the  requisite, 
and  when  it  is  obtained  the  declarations  are  admissible."  Whart.  Cr. 
Ev.  (8th  Ed.)  §  691.  The  same  author  says:  "Nor  are  there  any 
limits  of  time  within  which  the  res  gestae  can  be  arbitrarily  confined. 
They  vary  in  length  in  each  particular  case."  Whart.  Cr.  Ev.  §  262. 
In  State  v,  Gabriel,  88  Mo.  631,  on  a  trial  under  indictment  for  lar- 
ceny of  sheep,  where  the  transaction  was  made  up  of  a  variety  of  in- 
cidents extending  over  a  period  of  several  days,  and  was  not  at  an  end 
until  the  sheep  were  branded  as  his  own  by  the  defendant,  all  acts  and 
words  which  occurred  or  were  related  during  that  period  of  time 
tending  to  show  that  defendant  branded  the  sheep  by  mistake  or  in- 
advertence, and  not  with  a  larcenous  motive,  were  held  to  be  compe- 
tent evidence  in  his  behalf.  In  Stagner  v.  State,  9  Tex.  App.  440,  it 
was  held  that  statements  made  by  the  injured  party  20  minutes  after 
he  was  shot  were  so  intimately  connected  with  the  wounding  as  to  neg- 
ative the  idea  of  manufactured  testimony,  and  were  admissible  as  part 
of  the  res  gestae.  So,  in  the  case  of  Castillo  v.  State,  31  Tex,  Cr.  R. 
145,  19  S.  W.  892,  Z7  Am.  St.  Rep.  794,  it  was  held  that  the  statements 
made  by  the  injured  party  in  a  few  minutes  after  she  was  assaulted, 
and  also  statements  made  about  a  half  hour  thereafter,  while  she  was 
lying  upon  a  bench,  suffering,  bleeding,  and  prostrated,  describing  her 
assailant  to  another  witness,  were  competent  and  admissible  for  the 
same  reason.  In  1  Bish.  New  Cr.  Proc.  (4th  Ed.)  §  1087,  it  is  said: 
"If,  after  an  encounter  which  will  end  in  death,  the  defendant  or  the 
wounded  man  makes  a  statement  while  the  heat  of  it  is  on,  though  after 
the  lapse  of  a  period  not  definable  in  minutes,  yet  before  there  has 
been  time  to  reflect  and  plan,  it  is  admissible." 

The  statements  which  defendant  proposed  to  prove  were  in  almost 
the  exact  language  of  the  statements  claimed  on  the  first  appeal  to  have 
been  made  by  deceased  to  Mary  Hudspeth  immediately  after  the  shoot- 
ing, which  were  held  to  be  admissible.  When  the  statements  under 
consideration  were  made,  the  deceased  was  lying  in  the  same  place  and 
in  the  same  position  as  then.  The  heat  of  passion  was  still  on,  and 
the  circumstances  connected  with  the  event  uppermost  in  his  mind. 
They  were  voluntary,  spontaneous,  and  uninfluenced  by  persuasion,  by 
suggestion,  or  other  consideration,  and,  we  think,  admissible  as  part 
of  the  res  gestae.     They  tended  to  show  a  determination  on  the  part 


Sec.  2)  RECOGNIZED  EXCEPTIONS  740 

of  deceased  to  have  killed  defendant  if  the  gun  had  not  been  takei. 
from  him,  and,  when  taken  into  consideration  with  his  repeated  threats 
to  kill  defendant,  were  of  much  importance  to  defendant  in  determin- 
ing the  question  as  to  who  was  the  aggressor  at  the  time  the  fatal  shot, 
was  fired.     *     *     ♦ 
Judgment  reversed. 


PEOPLE  V.  DEL  VERMO. 

(Court  of  Appeals  of  New  York,  1908.     192  N.  Y.  470,  85  N.  E.  690.) 

WiLLARD  BartlETT,  J."  The  indictment  in  this  case  charged  the 
defendant  with  the  crime  of  murder  in  the  first  degree,  committed  at 
the  city  of  Rome,  in  Oneida  county,  on  the  30th  day  of  June,  1906. 
upon  the  body  of  one  Tony  Page  by  means  of  a  knife,  with  which  a 
fatal  stab  wound  was  inflicted  in  the  abdomen,  causing  the  death  of  the 
victim  on  the  following  day.  The  defendant  pleaded  not  guilty  and  tes- 
tified as  a  witness  in  his  own  behalf,  denying  the  infliction  by  him  of 
any  stab  wound  whatever  upon  the  body  of  the  deceased,  and  giving 
evidence  which,  if  it  had  been  believed  by  the  jury,  would  have  led 
them  to  the  conclusion  that  the  injury  which  caused  the  death  of  Tony 
Page  was  self-inflicted  by  means  of  a  knife  with  which  Page  had  en- 
deavored to  assault  the  defendant. 

[It  appeared  without  controversy  that  the  defendant,  the  deceased, 
Tony  Page,  and  several  others  had  been  drinking  in  various  saloons 
during  the  evening,  and  that  about  midnight  they  started  down  the 
street  together  talking,  when  some  words  were  passed  between  de- 
ceased and  defendant.]  ^*  Tony  Page  responded  with  an  opprobrious 
epithet,  at  which  the  defendant  laughed,  and  they  all  walked  on  a  dis- 
tance of  about  two  blocks  further,  when  Bochicecheo  saw  the  defend- 
ant start  to  run  and  exclaimed:  "What  is  the  matter  with  that  fel- 
low ?"  Tony  Page  responded :  "Maybe  he  saw  something  about  the 
store."  As  he  said  this  he  walked  forward  four  or  five  steps  and  drop- 
ped to  the  sidewalk.  Bochicecheo  asked  him,  "What  is  the  matter?" 
and  he  answered,  "Del  Vermo  stabbed  me  with  a  knife."  Bochicecheo 
helped  him  into  his  home  through  the  back  yard,  where  his  wife  met 
him,  and  in  response  to  her  inquiry  as  to  what  was  the  matter  he  again 
said :  "Del  Vermo  stabbed  me  with  a  knife."  Page  was  then  placed  on 
a  couch  and  a  physician  was  summoned  by  telephone.  The  patient  was 
found  to  be  suffering  from  a  stab  wound  in  the  abdomen,  which  was 
between  seven  and  eight  inches  deep,  and  had  penetrated  the  intestines, 
severed  the  mesentery  artery,  and  punctured  the  liver.  He  died  as  the 
result  of  this  wound  at  3  o'clock  a.  m.  on  July  1,  1906.     *     *     ♦ 

7T  Parts  of  opinion  omitted. 

7  8  This  part  of  tlie  opinion  has  been  condensed. 


;750  HEARSAY  (Cll.  3 

The  next  exceptions  in  the  order  of  their  importance  which  call  for 
our  consideration  are  those  relating  to  the  admissibility  of  the  statement 
of  the  deceased  immediately  after  he  was  wounded  to  the  efifect  that 
Del  Vermo  had  stabbed  him,  and  his  subsequent  statements,  which 
were  received  as  dying  declarations.  The  first  statement  does  not  ap- 
pear to  have  been  ofl:ered  or  received  as  a  dying  declaration  at  all,  but 
was  admitted  rather  as  a  part  of  the  res  gestae  in  the  broadest  sense 
of  that  term.  I  think  that  it  must  be  deemed  to  have  been  properly  re- 
ceived under  the  exception  to  the  general  rule  excluding  hearsay  evi- 
dence, which  is  treated  by  Prof.  Wigmore  under  the  convenient  term  of 
"spontaneous  exclamations."  3  Wigmore  on  Evidence,  §  1745.  That 
exception  may  be  stated  as  follows :  Evidence  is  admissible  of  ex- 
clamatory statements  declaratory  of  the  circumstances  of  an  injury, 
when  uttered  by  the  injured  person  immediately  after  the  injury,  pro- 
vided that  such  exclamations  be  spontaneously  expressive  of  the  injur- 
ed person's  observation  of  the  effects  of  a  startling  occurrence,  and  the 
utterance  is  made  within  such  limit  of  time  as  presumiably  to  preclude 
fabrication. 

It  will  be  observed  that  this  exception  contemplates  and  permits 
proof  of  declarations  by  an  injured  person  made  after  the  event,  so  that 
it  cannot  fairly  be  said  that  the  words  spoken  really  constituted  a  part 
of  the  thing  done.  In  some  jurisdictions  this  has  been  regarded  as  a 
fatal  objection  to  the  reception  of  such  evidence.  See  Parker  v.  State, 
136  Ind.  285,  35  N.  E.  1105;  State  v.  Estoup,  39  La.  Ann.  219,  1 
South.  448;  State  v.  Hendricks,  172  Mo.  654,  73  S.  W  194.  In  most 
of  the  states,  however,  the  doctrine  is  accepted.  It  was  clearly  sanc- 
tioned by  this  court  by  what  was  said  in  Waldele  v.  N.  Y.  C.  &  H.  R. 
R.  R.  Co.,  95  N.  Y.  274,  279,  280,  47  Am.  Rep.  41,  in  approval  of  the 
decision  of  the  Supreme  Judicial  Court  of  Massachusetts  in  Common- 
wealth v.  Hackett,  2  Allen,  136.  In  this  Massachusetts  case,  which 
was  an  indictment  for  murder,  the  evidence  tended  to  show  that  the 
defendant  suddenly  approached  the  deceased,  one  Gillen,  in  the  night- 
time, stabbed  him  in  the  abdomen,  and  ran  away.  When  the  blows 
were  inflicted,  Gillen  cried  out,  "I  am  stabbed."  A  witness  for  the 
government  testified  that  upon  hearing  this  exclamation,  and  within 
20  seconds  after  it  was  made,  he  went  to  Gillen  and  heard  Gillen  say : 
"I'm  stabbed — I'm  gone — Dan  Hackett  has  stabbed  me.'"  The  admis- 
sion of  this  testimony  was  sustained  on  the  ground,  as  stated  in  the 
opinion  of  Bigelow,  C.  J.,  that  the  remark  of  the  deceased  "was  an  ex- 
clamation or  statement  contemporaneous  with  the  main  transaction, 
forming  a  natural  and  material  part  of  it,  and  competent  as  being  origi- 
nal evidence  in  the  nature  of  res  gestae.  *  *  *  They  were  uttered 
after  the  lapse  of  so  brief  an  interval  and  in  such  connection  with  the 
principal  transaction  as  to  form  a  legitimate  part  of  it,  and  to  receive 
credit  and  support  as  one  of  the  circumstances  which  accomixmied  and 
illustrated  the  main  fact  which  was  the  subject  of  inquiry  before  the 
jury." 


Sec.  2)  RECOGNIZED  EXCEPTIONS  751 

Strictly  speaking,  the  spontaneous  declaration  there  under  considera- 
tion did  not  really  form  part  of  the  res  gestae,  as  being  itself  a  verbal 
act  contemporaneous  with  the  principal  occurrence;  for  the  exclama- 
tion was  uttered  after  the  act  of  stabbing  had  been  wholly  completed 
and  after  the  assailant  had  fled,  although  it  is  true  that  the  time 
which  had  elapsed  was  very  short.  The  decision,  therefore,  is  clearly 
an  authority  for  the  admissibility  of  proof  of  such  exclamations  rela- 
tive to  an  injur}',  provided  they  are  of  the  character  and  are  made 
under  the  conditions  which  have  already  been  stated,  although  they  are 
subsequent  in  point  of  time  to  the  infliction  of  the  injury.  If  they  are 
the  impulsive  or  instinctive  outcome  of  the  act,  they  need  not  be 
strictly  contemporaneous  in  order  to  render  them  admissible.     *     *     * 

The  distinction  between  spontaneous  declarations  and  other  decla- 
rations deemed  part  of  the  res  gestae  was  clearly  pointed  out  by  the 
present  Chief  Judge  of  this  court  when  he  was  a  member  of  the  Ap- 
pellate Division  in  the  Second  Department  in  the  case  of  Patterson  v. 
Hochster,  38  App.  Div.  398,  56  N.  Y.  Supp.  467,  where  he  said: 
"Declarations  admitted  as  part  of  the  res  gestae  may  be  divided  into 
three  classes :  The  first  is  where  they  constitute  a  part  of  the  transac- 
tion itself  which  is  sought  to  be  proved.  The  second  is  where  they  tend 
to  qualify,  explain,  or  characterize  the  acts  which  they  accompany. 
The  third  is  where  the  declarations  are  made  at  the  time  of  the  trans- 
action, but  relate  solely  to  the  acts  and  conduct  of  others.  The  text- 
books and  decided  cases  justify  the  admission  of  all  these  declara- 
tions on  the  same  ground  as  being  part  of  the  res  gestae.  But  it  is 
apparent  that,  logically  and  on  principle,  the  admission  of  declarations 
of  the  third  class  must  stand  on  a  different  ground  from  that  which 
supports  the  admission  of  the  two  other  classes.  If  a  man,  being 
wounded,  calls  out,  'Jo^^ii  ^^^  stabbed  me,'  the  declaration  in  no  way 
qualifies  or  explains  the  act  of  the  person  who  stabbed  him.  In  reality, 
testimony  to  the  declaration  is  pure  hearsay,  and  is  admissible  in  evi- 
dence only  upon  the  great  improbability  that  the  spontaneous  utter- 
ance of  the  instant  should  be  false."     *     *     * 

Judgment  affirmed.''* 

78  Compare  Greener  v.  Gen.  Electric  Co.,  209  N.  Y.  135,  102  N.  E.  527,  46  K 
R.  A.  (N.  S.)  975  (1913),  excluding  a  statement  of  the  injured  party  in  an- 
swer to  a  question,  although  made  almost  immediately  after  the  accident. 


752  OPINIONS   AND  CONCLUSIONS  (Ch.  4 

CHAPTER  IV 
OPINIONS  AND  CONCLUSIONS 


SECTION  1.— BY  ORDINARY  WITNESSES 


LEWIS  V.  FREEMAN. 

(Supreme  Judicial  Court  of  Maine,  1840.     17  Me.  260.) 

Assumpsit  against  a  surety  to  recover  the  price  of  certain  goods 
furnished  to  one  Butler.  The  defence  was  that  Butler  had  settled 
for  them. 

The  witness,  on  being  questioned  by  the  defendant  as  to  the  admis- 
sions of  the  plaintiff  in  that  conversation,  testified,  "that  he  thought  the 
plaintiff  told  him,  butler  had  paid  him  for  what  cloths  he  had  sold 
and  not  brought  back;  was  very  confident  he  said  so,  but  would  not 
swear  that  he  did  say  so."  The  plaintiff  contended,  that  upon  the  tes- 
timony of  Robinson,  the  jury  could  not  legally  return  a  verdict  for 
the  defendant  on  the  ground  that  Butler  had  paid  for  the  cloths. 

The  Judge  instructed  the  jury,  that  as  witnesses  must  use  their  own 
language  in  conveying  their  meaning,  and  as  they  express  themselves 
with  different  degrees  of  clearness,  and  use  different  degrees  of  cau- 
tion in  the  phraseology  they  adopt,  it  was  for  the  jury  to  give  their 
language  a  fair  exposition ;  that  if  the  testimony  of  Robinson  had 
proved  to  their  reasonable  conviction  that  the  plaintiff  had  knowingly 
and  deliberately  admitted  that  he  had  received  full  payment  for  the 
first  load  of  cloths  from  Butler,  they  might  thereupon  find  a  verdict 
for  the  defendant. 

Other  points  were  made  at  the  trial,  and  the  jury  returned  a  ver- 
dict on  each.  They  found  on  this,  "that  Butler  did  on  his  return  from 
his  first  trip  deliver  over  to  Lewis  cloths  and  money  enough  to  pay 
up  for  the  hundred  dollars  worth  of  cloths  dehvered  on  the  strength 
of  Freeman's  guaranty."    The  plaintiff  filed  exceptions.^ 

SiiRPLEY,  J.  If  the  instructions  respccling  the  testimony  of  Robin- 
son were  correct ;  and  the  jury  were  authorized  by  that  testimony  to 
find,  that  the  plaintiff'  had  been  paid,  it  will  not  be  necessary  to  consider 
the  other  points  made  in  the  case. 

The  argument  is,  that  there  was  no  testimony  to  prove  an  admission 
of  payment,  because  the  witness  said  he  "would  not  swear,  that  he  did 

1  JJtatement  condensed. 


Sec.  1)  BY  ORDINARY  WITNESSES  753 

say  so";  and  that  his  testimony  is  not  strengthened  by  the  expres- 
sion, "that  he  thought  the  plaintiff  told  him  Butler  had  paid  him." 

In  the  case  of  Sebor  v.  Armstrong  &  trustee,  4  Mass.  206,  it  was 
the  province  of  the  Court  to  decide  the  fact,  and  to  give  such  effect  to 
the  testimony  as  it  might  deserve.  The  trustee  must  discharge  him- 
self, and  the  only  testimony  to  have  this  effect  being  his  declaration 
that  he  thought  the  paper  payable  to  order  might  well  be  considered 
as  unsatisfactory.  And  the  argument  in  this  case  might  be  regarded 
as  sound,  if  that  were  the  only  testimony  before  the  jury  upon  this 
point.  But  the  whole  of  the  expressions  used  by  the  witness  are  to 
be  considered,  and  in  connexion  with  the  conduct  of  the  plaintiff.  He 
says,  "he  thought  the  plaintiff"  told  him  Butler  had  paid  for  what  cloths 
he  had  sold  and  not  brought  back,  was  very  confident  he  said  so, 
but  would  not  swear  that  he  did  say  so."  The  witness  was  speaking 
under  the  obligation  of  his  oath,  when  he  said,  that  he  was  very  con- 
fident he  said  so,  and  that  was  speaking  of  his  recollection  of  a  fact 
with  no  slight  assurance  that  he  was  correct ;  and  when  he  adds,  that 
he  would  not  swear  to  it,  the  idea  communicated  is,  that  he  was  very 
confident,  but  not  certain,  that  the  plaintiff  so  stated.  The  witness 
was  not  giving  an  opinion,  but  stating  the  strength  of  his  recollection 
of  a  fact.  The  circumstances  stated  by  the  witness  respecting  the  con- 
duct of  the  plaintiff"  and  Butler,  after  Butler's  return,  tend  to  confirm 
the  conviction  that  the  plaintiff  had  been  paid. 

The  jury  were  the  proper  judges  of  the  weight  of  the  whole  tes- 
timony upon  the  point ;  and  the  instructions  were  well  suited  to  bring 
their  minds  to  a  just  conclusion. 


Exceptions  overruled, 


2 


STATE  V.  THORP. 

(Supreme  Court  of  North  Carolina,  1875.    72  N.  C.  186.) 

ReadE,  J-^  The  prisoner  was  charged  with  drowning  her  child  in 
a  river.  A  witness  saw  her  going  towards  the  river  with  a  child  in  her 
arms.  The  witness  said  he  knew  the  prisoner  and  identified  her,  he 
knew  the  child  also,  but  he  was  one  hundred  yards  off  and  was  not 
sure  who  the  child  in  her  arms  was.  He  was  then  asked  if  he  recog- 
nized the  child  as  the  deceased?    Which  question  was  objected  to  by 

2  And  so  in  Clarlc  v.  Bigelow,  16  Me.  246  (1839),  impression :  State  v. 
Flanders,  38  N.  H.  324  (1859),  impression;  Snell  v.  JNIoses.  1  Johns.  (N.  Y.) 
96  (ISOfi),  impres.'^ion  as  to  a  conversation;  Blake  v.  People,  73  N.  Y.  586 
(1878),  that  witness  was  not  sure,  but  thought,  etc 

8  Statement  and  part  of  opinion  omitted. 
HiNT.Ev. — 48 


754  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

the  prisoner  and  ruled  out  by  the  Court ;  for  what  reason  we  cannot 
conceive,  as  it  was  clearly  competent.  Possibly  it  was  ruled  out  as 
being  a  leading  question.  The  Solicitor  then  asked,  "Is  it  your  best 
impression  that  the  child  she  had  in  her  arms,  was  her  son  Robert 
Thorp?"  The  witness  said  it  was.  This  question  was  objected  to 
but  was  admitted.  If  the  former  question  was  leading,  this  was  more 
so,  but  there  is  a  more  substantial  objection  to  it. 

It  is  true  that  in  very  many  cases  a  witness  may  give  "his  impres- 
sions" or  his  "opinions"  as  to  facts.  Indeed  memory  is  so  treacher- 
ous, knowledge  so  imperfect,  and  even  the  senses  so  deceptive,  that 
we  can  seldom  give  to  positive  assertions  any  other  interpretation  than 
that  they  are  the  impressions  or  opinions  of  the  witness.  Do  you  know 
when  a  certain  act  was  done?  I  do.  When  was  it?  I  think  it  was 
in  January.  Where  was  it?  It  was  in  Raleigh.  At  what  place  in 
Raleigh?  I  think  it  was  at  the  hotel,  it  may  have  been  at  the  capitol. 
Who  did  it?  Mr.  A.  Was  it  not  Mr.  B.?  It  was  one  or  the  other  and 
my  best  impressions  is  that  it  was  Mr.  A.  All  that  would  be  proper 
because  the  witness  is  speaking  of  facts  within  his  knowledge  and  as 
he  understands  them.  So  if  in  this  case  the  witness  had  been  asked 
"Did  you  know  the  deceased  child?  Yes.  Did  you  see  it  in  the  per- 
son's arms?  Yes.  Did  you  recognize  it  as  the  deceased?  Yes,  I 
think  it  was,  that  is  my  best  impression."  All  that  would  have  been 
proper.  But  we  think  the  case  presented  to  us  will  bear  the  interpre- 
tation that  the  witness  said,  "I  saw  the  prisoner  have  a  child  in  her 
arms.  I  was  so  far  off  that  I  could  not  tell  what  child  it  was,  but 
I  knew  that  she  had  a  child  of  her  own,  and  I  suppose  she  would  not 
have  been  carrying  any  other  child  than  her  own,  therefore  I  think 
it  was  her  own  child.  That  is  my  best  impression."  And  this  was 
clearly  improper.  This  was  but  his  inference  from  what  he  saw 
and  knew.  And  we  suppose  that  any  bystander  in  the  Court  who 
heard  the  trial  might  have  been  called  up  and  he  would  have  testi- 
fied that  his  "best  impression"  was  that  it  was  her  child,  from  the 
evidence.  A  witness  must  speak  of  facts  within  his  knowledge.  He 
knew  that  the  prisoner  had  a  child  of  her  own,  and  he  knew  that 
she  had  a  child  in  her  arms,  and  these  facts  it  was  proper  for  him 
to  state,  but  he  could  not  go  further  and  say,  "from  these  facts 
which  I  know  I  infer  that  the  child  was  her  own,  I  am  not  sure  but 
that  is  my  best  impression."  This  may  not  have  been  the  sense  in 
which  he  intended  to  be  understood,  but  we  think  it  will  bear  that 
construction.  And  in  favor  of  life  we  so  construe  it.  He  certainly 
did  not  mean  to  say  that  he  recognized  the  child  as  the  child  of  the 
prisoner,  and  yet  he  knew  her  child  very  well.  Why  did  he  not 
recognize  the  child  as  he  did  the  prisoner?  Evidently  because  at  that 
distance  he  could  not  recognize  one  child  from  another  in  the  arms 
of  the  prisoner.    It  was  probably  but  little  more  distinct  than  a  bundle 


Sec.  1)  BY  ORDINARY  WITNESSES  755 

and  he  just  took  it  to  be  her  child,  because  she  had  it  in  her  arms. 
Probably  this  was  all  he  meant  by  his  "best  impression."    And  it  was 
error  to  allow  it.     *     *     * 
Venire  de  novo.* 


COMMONWEALTH  v.  HAYES. 
(Supreme  Judicial  Court  of  Massachusetts,  1SS4.     138  Mass.  1S5.) 

Indictment,  alleging  that  the  defendant,  on  February  6,  1884,  at  Pea- 
body,  attempted  to  set  fire  to  a  building.  Trial  in  the  Superior  Court, 
before  Pitman,  J.,  who  allowed  a  bill  of  exceptions,  in  substance  as  fol- 
lows: 

The  government  introduced  evidence  tending  to  prove  that,  between 
nine  and  ten  o'clock  in  the  evening  of  the  day  named  in  the  indictment, 
a  horse  and  buggy  were  driven  up  to  the  house  of  Sarah  P.  Farnham,  in 
Peabody,  and  were  turned  round  in  the  yard,  and  stopped  opposite  an 
open  shed,  the  bugg}'  being  twenty-nine  feet  from  the  door  of  the 
kitchen  of  the  house  when  stopped.  The  noise  of  the  carriage  attract- 
ed the  attention  of  Mrs.  Farnham,  her  husband,  and  of  their  servant, 
one  Bohan.  The  servant  testified  that,  while  the  horse  and  buggy 
were  stopped  as  above  stated,  she  saw  a  man  come  from  the  direction 
of  the  shed  and  get  into  the  buggy,  and  that  he  soon  drove  off.  Mrs. 
Farnham,  her  husband,  and  Bohan  all  testified  that,  after  the  man 
left,  they  went  into  the  shed  with  a  light,  and  found  there  a  cartridge 
of  Atlas  powder,  a  fuse,  and  a  bottle  of  kerosene. 

Mrs.  Farnham,  among  other  witnesses  who  testified  to  the  identity 
of  tlie  man  with  the  defendant,  testified  that  she  had  known  the  de- 
fendant by  sight,  but  had  never  heard  him  speak  before  said  Febru- 
ary 6;  that  on  that  day,  about  noon,  the  defendant  drove  into  the  yard 
in  a  sleigh,  with  another  man,  and  stopped  near  the  door  of  the  house ; 
that  neither  of  them  got  out  of  the  sleigh ;  that  she  went  to  the  door, 
and  the  defendant  said,  "Does  Mr.  Parnham  live  here?"  and  she  re- 
plied, "Yes,  but  is  not  at  home;"  that  then  he  said,  "Well,  he  lives 
here,  don't  he?"  and  then  he  drove  away;  that  that  was  all  she  ever 
heard  him  say ;  that  the  voice  was  coarse,  gruff,  and  very  ugly ;  that, 
on  the  same  evening,  while  the  buggy  was  stopped  in  her  yard  as  above 
stated,  she  went  to  the  door  and  said  twice,  "Who  is  there?"  and  the 
person  in  the  buggy  replied  to  the  second  question  only,  "What  do  you 
think?"  and  that  she  did  not  see  the  person  in  the  bugg)\  The  dis- 
trict attorney  then  asked  her  who  it  was  that  spoke.  This  question 
was  objected  to,  on  the  ground  that  she  had  no  such  means  of  knowl- 
edge as  would  render  an  answer  competent.    The  judge  overruled  the 

4  Compare  Com.  v.  Moinehan,  140  Mass.  463,  5  N.  E.  259  (ISSG),  to  the  eEfect 
that  a  witness  might  state  that  he  thought  a  liquor  was  lager  beer;  Green- 
field V.  People.  S.J  N.  Y.  75,  39  Am.  Rep.  036  (ISSl),  where  a  lay  witness  was 
permitted  to  state  "as  a  fact"'  that  certain  spots  were  blood. 


756  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

objection;  and  the  witness  answered,  "I  can  say  from  the  voice  that 
it  was  the  same  man  that  spoke  to  me  at  noon, — I  say  it  was  Wilham 
Hayes." 

The  jury  returned  a  verdict  of  guilty;  and  the  defendant  alleged  ex- 
ceptions. 

By  the  Court.  The  testimony  of  the  witness  Farnham,  identify- 
ing the  defendant  by  his  voice,  was  competent.  The  weight  of  it  was 
for  the  jury,  but  it  was  properly  submitted  to  them,  to  be  considered  in 
connection  with  the  other  evidence  of  identity.  Commonwealth  v. 
Williams,  105  Mass.  62. 

Exceptions  overruled.' 


LUND  et  ux.  v.  INHABITANTS  OF  TYNGSBOROUGH. 
(Supreme  Judicial  Court  of  Massachusetts,  1851.    9  Cush.  36.)o 

The  plaintiffs  oft'ered  the  deposition  of  John  Kendall,  that  "there 
was  a  bad  place  at  the  side  of  the  road,  where  they  put  in  a  culvert. 
There  had  been  a  culvert  put  across.  The  condition  of  it  was  bad.  At 
the  mouth  of  the  culvert,  it  was  a  steep  right  down." 

The  plaintiffs  also  offered  the  deposition  of  one  George  Wright, 
"that  there  was  a  bad  place  near  there;  a  culvert  that  I  thought  a 
dangerous  place.  I  should  judge  it  was  about  eighteen  inches  deep 
and  three  feet  wide,  and  I  should  think  not  far  from  six  feet  from  the 
cart  rut.     It  was  a  common  across  the  road  and  end  open." 

The  above  answers  were,  on  the  trial,  objected  to  by  the  defendants' 
counsel,  on  the  ground  that  they  conveyed  an  opinion.  The  counsel 
for  the  plaintiffs  contended  that  they  conveyed  no  opinion  as  to  wheth- 
er there  was  a  defect  in  the  road,  but  were  simply  descriptive  expres- 
sions used  by  the  witness,  and  qualified  and  explained  by  him. 

The  judge  overruled  the  objection,  and  admitted  the  testimony.^ 

Fletcher,  T.  It  was  maintained,  on  the  part  of  the  defendants, 
that  the  answers  to  the  twelfth  and  thirteenth  interrogatories  in  the 
deposition  of  John  Kendall,  and  the  answer  to  the  seventh  interroga- 
tory in  the  deposition  of  George  Wright,  were  improperly  admitted  in 
evidence,  because  they  merely  expressed  opinions  of  the  witnesses,  who 
were  not  experts,  and  were  not  statements  of  any  facts.  But  the 
court  do  not  so  understand  the  testimony.    The  witnesses  are  not  ask- 

6  And  so  in  Ogden  v.  People,  134  111.  599.  25  N.  E.  755  (1890). 

See.  also,  Com.  v.  Best,  180  Mass.  492,  62  N.  E.  748  (1902).  where  a  wit- 
ness was  permitted  to  testify  to  the  identity  of  a  watroti  from  its  peculiar 
noise,  and  to  state  that  the  noise  came  from  a  certain  direction. 

I'or  a  collection  of  cases  admitting  opinions  or  conclusions  because  of  the 
diflicultv  or  inii)ossil)ility  of  adequately  descril>ing  the  various  facts  observed, 
see  State  v.  Pruett,  22  N.  M.  223,  160  Pac.  3G2,  L.  R.  A.  191SA,  650  (1910) 
OJiiiot.'itcd. 

«  For  the  nature  of  this  action,  see  ante,  p.  733. 

»  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  1)  BY  ORDINARY  WITNESSES  757 

ed  their  opinion  as  to  the  sufficiency  or  insufficiency  of  the  road. 
But  the  inquiry  was  as  to  the  actual  condition  of  the  road  in  point  of 
fact,  and  as  to  what  the  witnesses  knew,  not  what  was  their  opinion  on 
this  subject.  The  answers  of  the  witnesses  describe  the  actual  con- 
dition of  the  road  as  within  their  personal  knowledge,  and  are  not  ex- 
pressions of  opinions  merely. 

The  answers  are  merely  descriptive — in  very  general  terms  to  be  sure 
— of  the  defective  state  of  the  road ;  but  the  defendants  might,  if  they 
had  thought  proper  to  do  so,  have  required  the  witnesses  to  state  in 
detail  in  what  particulars  the  road  was  bad ;  and,  in  the  answer  of  the 
witness  Wright  to  the  eighth  interrogatory,  the  defect  in  the  road 
is  particularly  described.  But  this  general  form  of  expression  does 
not  warrant  the  exception  that  the  witnesses  give  opinions  merely, 
and  do  not  state  facts.  This  exception,  therefore,  is  not  sustained  in 
point  of  fact.     *     *     * 

New  trial  (on  other  grounds). 


MUSICK  V.  BOROUGH  OF  LATROBE. 
(Supreme  Court  of  Pennsylvania,  1898.     184  Pa.  375,  39  Atl.  226.) 

Trespass  for  personal  injuries. 

At  the  trial  it  appeared  that  plaintiff,  on  the  night  of  October  14, 
1893,  fell  down  the  steps  of  an  entrance  to  an  unprotected  cellarway 
leading  from  an  alley  twenty  feet  wide  in  the  borough  of  Latrobe. 
The  night  was  dark,  and  it  was  raining.  The  plaintiff  lived  a  few  miles 
from  Latrobe,  and  was  not  familiar  with  the  alley. 

A  witness,  after  describing  the  entrance  to  the  cellar,  was  asked : 
"Was  this  excavation  out  on  the  alley?"  A.  "It  is  on  the  alley;  on 
borough  property."  Q.  "If  a  person  were  going  in  past  the  Potthoff 
building  on  a  dark,  rainy  night  near  to  the  excavation,  and  there  were 
no  guards,  signals,  or  other  obstructions  around  tliis  hole,  state  what 
your  opinion  is  with  regards  to  the  danger  of  the  place." 

The  question  was  objected  to  by  the  counsel  for  the  defendant,  for 
the  reason  that  while  the  witness  might  detail  the  exact  condition  of 
the  alley,  he  is  not  supposed  to  determine  whether  or  not  its  condition 
amounts  to  negligence  on  the  part  of  the  borough,  and  that  it  is  an 
hypothetical  case,  and  an  opinion  by  the  witness  which  is  the  province 
of  the  jury  to  determine,  and  is  therefore  incompetent  and  irrelevant. 

By  the  Court:  Objection  overruled,  and  exception  for  the  defend- 
ant. 

A.  "It  would  be  dangerous."  Q.  "As  you  described  the  condition 
of  the  area  way  the  next  morning  after  the  accident,  state  whether  or 
not  the  place  would  be  dangerous."    A.  "It  would  be  dangerous."  ' 

8  statement  condensed  and  part  of  opinion  omitted. 


758  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

Williams,  J.  The  general  rule  is  well  settled  that  the  province  of 
a  witness  is  to  state  facts,  and  that  of  the  jury  is  to  draw  conclusions 
from  them.  There  are  some  exceptions  to  this  rule,  particularly  when 
the  facts  are  of  such  a  character  as  to  make  it  necessary,  or  at  least 
helpful,  that  the  jury  be  guided  in  drawing  their  conclusions  by  the  tes- 
timony of  persons  possessing  superior  knowledge  of  the  subject  under 
investigation.  In  such  cases  the  opinions  of  expert  witnesses  are  giv- 
en to  the  jury  as  to  the  effect  of  certain  given  facts,  or  their  own  con- 
clusions drawn  from  a  personal  examination  of  some  object.  Witness- 
es have  also  been  allowed  to  express  opinions  upon  the  safe  or  unsafe 
character  of  machinery,  or  of  the  condition  of  a  highway,  when  an  oral 
description  by  witnesses  would  not  adequately  present  the  situation  to 
the  jury.  But,  if  the  defect  or  obstruction  complained  of  is  such  as 
admits  of  a  full  and  adequate  description,  the  question  whether  it  is 
dangerous  or  not  is  not  a  question  of  skill  or  art  requiring  the  aid  of 
expert  testimony,  but,  like  other  questions  of  fact,  is  to  be  determined 
by  the  jury.  They  must  learn  the  facts  from  the  witnesses,  and  then 
draw  their  own  conclusions  as  to  the  dangerous  character  of  the  high- 
way, as  well  as  to  the  contributory  negligence  of  the  traveler  who 
suffers  an  injury.  In  all  ordinary  cases,  it  v/ould  be  as  appropriate  for 
a  witness  to  give  his  opinion  about  whether  the  plaintiff's  conduct 
amounted  to  contributory  negligence  or  not  as  to  whether  a  situation 
fully  described  by  him  is  dangerous  in  its  character. 

The  first  assignment  of  error,  which  complains  of  the  admission  of 
such  testimony  in  this  case,  is  sustained.     *     *     * 

Judgment  reversed." 


SHATTUCK  v.  STONEHAM  BRANCH  R.  R. 
(Supreme  Judicial   Court  of  Massachusetts,  1863.     6  Allen,   115.) 

Petition  to  assess  damages  for  taking  land  for  railroad  purposes. 

During  the  trial  the  petitioner  testified  in  his  own  behalf,  and  was 
allowed,  under  objection,  to  state  his  opinion  of  the  amount  of  dam- 
age sustained  by  him,  by  reason  of  the  taking  of  the  land.  John  Hill, 
a  witness  for  the  petitioner,  was  also  allowed  to  testify,  under  objec- 
tion, what  he  gave  for  a  lot  of  land  about  a  quarter  of  a  mile  from 
that  of  the  petitioner,  and  how  the  two  lots  compared  in  value.  Luther 
Hill,  another  witness  for  the  petitioner,  was  allowed  to  testify,  under 
objection,  as  to  the  comparative  value  of  the  land  in  controversy  and  an 
adjoining  lot,  a  sale  of  which  for  a  certain  price  had  been  put  in  evi- 
dence.^° 

BAnd  so  In  Grahnin  v.  Pennsylvania  Co..  139  Pa.  140,  21  Atl.  151,  12  L. 
U.  A.  20."',  (I'^Ol),  danger  of  a  station  idatforni ;  Seifivd  v.  Pennsylvania  U. 
Co.,  200  Pa.  :i'M,  55  Atl.  1001  (liiO.'i),  danger  of  a  grade  crossing. 

For  a  folloction  of  rases  on  this  jtoint,  see  Duncan  v.  Atchison,  T.  &  S.  F. 
Ry.  Co.,  80  Kan.  112,  111)  Pac.  350,  51  L.  R.  A.  (N.  S.)  505  (1911),  annotated. 

10  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  1)  BY  ORDINARY  WITNESSES  759 

Chapman,  J.  The  first  objection  to  the  rulings  of  the  officer  who 
presided  at  the  trial  is,  that  he  allowed  the  petitioner  to  testify  to  the 
amount  of  the  damage  done  by  tlie  respondents  to  his  estate. 

It  is  not  denied  that  the  petitioner  is  by  statute  made  a  competent 
witness,  and  might  testify  to  anything  that  might  be  stated  by  any  other 
witness.  It  is  settled  in  this  commonwealth  that  where  the  value  of 
property,  real  or  personal,  is  in  controversy,  persons  acquainted  with 
it  may  state  their  opinion  as  to  its  value.  Also  where  the  amount  of 
damage  done  to  property  is  in  controversy,  such  persons  may  state  their 
opinion  as  to  the  amount  of  the  damage.  This  is  permitted  as  an  ex- 
ception to  the  general  rule,  and  not  strictly  on  the  ground  that  such  per- 
sons are  experts ;  for  such  an  application  of  that  term  would  greatly 
extend  its  signification.  The  persons  who  testify  are  not  supposed  to 
have  science  or  skill  superior  to  that  of  the  jurors;  they  have  merely 
a  knowledge  of  the  particular  facts  in  the  case  which  jurors  have  not. 
And  as  value  rests  merely  in  opinion,  this  exception  to  the  general  rule 
that  witnesses  must  be  confined  to  facts,  and  cannot  give  opinions,  is 
founded  in  necessity  and  obvious  propriety.  Vandine  v.  Burpee,  13 
Mete.  288,  46  Am.  Dec.  733 ;  Wyman  v.  Lexington,  etc..  Railroad,  13 
Mete.  326.  Walker  v.  Boston,  8  Cush.  279 ;  Dwight  v.  County  Com- 
missioners, 11  Cush.  201.  The  same  rule  is  adopted  in  New  York. 
Clark  V.  Baird,  9  N.  Y.  183. 

But  this  rule  of  evidence  is  exceptional,  and  is  confined  to  the  sub- 
ject of  the  controversy.  Vandine  v.  Burpee,  ubi  supra.  Evidence  as 
to  other  property  similarly  situated  must  be  limited  to  facts.  Evi- 
dence of  actual  sales  of  other  similar  land  in  the  vicinity  is  competent. 
And  much  must  be  left  to  the  discretion  of  the  presiding  officer  in 
deciding  what  lands  are  similar,  and  the  length  of  time  within  which 
the  evidence  shall  be  confined.  These  matters  must  vary  in  each  par- 
ticular case ;  and  as  they  must  be  passed  upon  by  the  officer,  any  rea- 
sonable exercise  of  his  discretion  cannot  be  excepted  to,  unless  in 
cases  where  he  reports  the  facts  upon  which  his  decision  was  founded. 

On  these  principles,  the  plaintiff's  testimony  was  admissible.  So 
also  was  that  of  John  Hill,  except  so  far  as  he  was  allowed  to  state 
his  opinion  of  the  value  of  his  own  land,  and  compare  it  with  that  of 
the  plaintiff.  That  portion  of  it  was  admitted  erroneously.  The  same 
rule  should  have  excluded  a  portion  of  Luther  Hill's  testimony.  It  is 
impossible  for  this  court  to  decide  whether  the  testimony  of  Dike  as 
to  the  purchase  of  land  for  the  cemetery  was  admissible.  It  would 
seem  to  be  within  the  discretion  of   the  presiding  officer  to  decide 


Verdict  set  aside.^^ 


11  And  so  in  Illinois  &  W.  R.  Co.  v.  Von  Horn,  18  111.  257  (IS57) :  Snow 
V.  Boston  &  M.  R.  R.,  65  Me.  230  (1875) ;  Brown  v.  Aitken.  90  Vt.  569.  99 
Atl.  265  (1916),  from  general  knowledge  of  the  property  in  that  locality; 
Montana  R.  Co.  v.  Warren,  1.37  U.  S.  848,  11  Sup.  Ct.  96,  34  L.  Ed.  681  (1890). 

RoLinson,  J.,  in  Kansas  City  S.  B.  R.  Co.  v.  Norcross,  137  Mo.  415,  38  S. 


TOO  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

DETROIT  &  M.  R.  CO.  v.  VAN  STETNBURG. 

(Supreme  Court  of  Michigan,  18G8.     17  Mich.  99.) 

CooLEY,  C.  J.^-  *  *  *  Thirty-eight  exceptions  appear  in  the 
record,  a  number  of  which  were  not  insisted  upon  on  the  argument, 
and  will  not  be  noticed  here.  Four  of  the  others  were  assigned  to 
rulings  of  the  Circuit  Judge,  allowing  persons  not  shown  to  be 
ex}>erts  to  testify  to  the  rate  of  speed  the  engine  was  running  at  the 
time  the  accident  occurred.  Each  of  these  persons  stood  at  the  time 
upor»  the  ground  or  the  platform  near  the  place  of  the  accident,  and 
saw  tTie  train  pass.  Two  of  them  had  been  a  good  deal  accustomed  to 
railroa,i  traveling;  the  others  were  not  shown  to  have  had  any  spe- 
cial opportunity  to  judge  of  the  speed  of  passing  trains  beyond  that 
possessed  by  people  generally. 

The  point  to  which  the  attention  of  the  witnesses  was  directed  was 
the  speed  of  the  passing  object.  The  motion  of  the  train  was  to  be 
compared  to  the  motion  of  any  other  moving  thing,  with  a  view  to 
obtaining  the  judgment  of  the  witness  as  to  its  velocity.  No  question  of 
science  was  involved,  beyond  what  would  have  been,  had  the  passing 
object  been  a  man  or  a  horse.  It  was  not,  therefore,  a  question  for  ex- 
perts. Any  intelligent  man  who  had  been  accustomed  to  observe  mov- 
ing objects,  would  be  able  to  express  an  opinion  of  some  value  upon  it, 
the  first  time  he  ever  saw  a  train  in  motion.  The  opinion  might  not 
be  so  accurate  and  reliable  as  that  of  one  who  had  been  accustomed 
to  observe,  with  time  piece  in  hand,  the  m.otion  of  an  object  of  such 
size  and  momentum ;  but  this  would  only  go  to  tlie  weight  of  the  testi- 
mony, and  not  to  its  admissibility.    Any  man  possessing  a  knowledge 

W.  299  (1897):  "It  is  difficult  to  lay  dowu  any  fixed  and  definite  rule  as  to 
what  acquaintance  with  property  a  witness  must  have  or  as  to  how  his  in- 
formation must  he  derived,  to  say  just  when  his  opinion  as  to  the  value  of 
property  sliall  be  received  and  when  excluded  by  the  court.  He  is  an  excep- 
tion to  the  rule  applying  to  expert  witnesses  in  general,  and  whether  he  has 
acquired  sufficient  information  to  qualify  him  to  give  an  opinion  is  a  ques- 
tion that  must  rest  largely  within  the  discretion  of  the  trial  court.  If  through 
the  general  avenues  of  information  to  which  the  average  business  man  resorts 
to  inform  himself  of  values  for  the  proper  conduct  of  his  business,  and  to 
guide  his  sales  and  purchases  of  the  clmracter  of  property  in  controversy, 
the  witness  has  derived  his  information,  he  is  qualified  to  testify,  and  it  is 
tlion  for  tlie  jury,  in  view  of  the  manner  of  the  acquisition  of  tlie  information 
detailed  to  them  by  the  witness,  to  say  what  consideration  will  be  given  his 
e.stimate.  It  was  no  error  to  permit  this  testimony  to  go  to  the  jury  for  what 
It  was  worth." 

See,  also,  Brady  v.  Brady,  8  Allen  (Mmss.)  101  (1864). 

A  large  number  of  tlie  cases  on  opinion  as  to  the  rental  value  of  property 
are  collected  in  the  notes  to  Carey  Coal  Co.  v.  Bebee  Concrete  Co.,  44  L.  U. 
A.  (N.  S.)  499  (191ii).  Obviously  some  witnesses  may  not  have  siitlicient  gen- 
eral Icnowledge  of  the  value  of  land  (>r  cliattels  to  enable  them  to  form  an 
intelligent  opinion;  in  case  of  some  varieties  of  property,  only  a  limited 
class  of  i)ersons  would  have  such  knowledge.  Miller  v.  Smith,  112  Mass.  470 
(1873),  race  horse. 

12  Statement  and  part  of  opinion  omitted. 


Sec.  1)  BY  ORDINARY  WITNESSES  761 

of  time  and  of  distances  would  be  competent  to  express  an  opinion  up- 
on the  subject.  The  case  of  Sisson  v.  Cleveland  &  Toledo  R.  R.  Co., 
14  Mich.  489,  90  Am.  Dec.  252,  which  was  urged  upon  us  as  in  point, 
has  no  analogy.  The  question  there  related  to  the  capacity  of  an  en- 
gine, about  which  none  but  an  expert  could  be  supposed  to  have  knowl- 
edge; but  this  relates  to  matter  of  common  observation. 

In  order  to  establish  the  negligence  of  the  defendants,  the  plaintiff 
sought  to  show  that  the  velocity  at  which  the  train  was  moving  at  the 
time  the  accident  occurred,  was  so  great  that  it  would  have  carried  it 
considerably  by  the  usual  place  of  stopping ;  and  having  put  in  evidence 
to  show  the  rate  of  speed,  a  witness  was  then  asked,  ".\t  what  rate 
of  speed  should  the  train  have  been  running  to  stop  at  the  usual  stop- 
ping place?"  This  question  was  objected  to,  because  the  witness  was 
not  shown  to  be  an  expert.  This  question  evidently  stands  upon  a 
dififerent  ground  from  the  last,  and  can  only  be  answered  by  a  person 
of  experience  in  the  running  of  trains  and  in  checking  their  speed. 
I  am  inclined  to  think,  however,  that  the  witness  had  given  evidence 
which  showed  that  he  had  had  such  opportunities  as  entitled  him  to 
speak  as  an  expert.  He  had  been  traveling  as  a  mail  agent  regularly 
for  two  years  on  the  cars,  and  unless  greatly  defective  in  observation 
or  capacity,  ought  to  be  able  to  express  an  intelligent  opinion.  To 
constitute  an  expert,  it  cannot  be  necessary  that  one  should  be  con- 
nected with  the  management  of  the  train.  If  he  is  in  position  to  wit- 
ness the  result  of  the  management,  and  to  observe  the  effect  when  the 
means  of  checking  the  train  are  applied,  he  may  be  as  competent  to 
express  a  satisfactory  opinion  as  the  conductor,  the  brakeman,  or  possi- 
bly, even  the  engineer.  If  there  was  any  error  in  this  ruling,  or  in  the 
subsequent  admission  of  similar  evidence  from  another  witness,  whose 
opportunities  for  observation  had  been  similar,  it  was  in  allowing  the 
witnesses  to  answer  the  question  before  they  had  testified  that  their 
observation  had  been  such  as  to  entitle  them  to  express  opinions.^ ^ 


SYDLEMAN  v.  BECKWITH. 
(Supreme  Court  of  Errors  of  Connecticut,  1875.     43  Conn.  9.) 

LoOMis,  J.^*  On  the  trial  of  this  case  the  plaintiff,  to  prove  that 
the  horse  sold  him  by  the  defendant  was  not  safe,  kind  and  gentle,  as  it 
was  warranted  to  be,  oft'ered  certain  witnesses,  who,  after  they  had 
testified  particularly  to  their  knowledge  of  facts  and  of  the  conduct 

18  Accord:  Bracken  v.  Pennsylvania  R.  Co.,  222  Pa.  410,  71  .\tl.  920,  34  L. 
R.  A.  (N.  S.)  790  (1909),  annotated;  Dugan  v.  Authurs,  230  Pa.  299,  79  Atl. 
626,  34  L.  R.  A.  (N.  S.)  778  (1911),  annotated,  speed  of  an  autoinonile;  Teck- 
lenburg  v.  Everett  Ry.,  Light  &  Water  Co.,  59  Wash.  384,  109  Pac  1036,  34 
L.  R.  A.  (N.  S.)  784  (1910),  annotated,  street  car. 

14  Statement  omitted.  • 


762  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

of  the  horse  on  various  occasions,  were  asked  this  question :  "From 
your  knowledge  of  the  horse  was  he  in  your  opinion  a  safe,  kind 
horse?"  The  counsel  for  the  defendant  objected  to  this  question,  but 
the  court  admitted  the  evidence  in  connection  with  the  facts.  Was 
this  ruling  correct? 

The  general  rule  is  that  witnesses  must  state  facts  and  not  their 
individual  opinions,  but  there  are  exceptions  to  the  rule  as  well  es- 
tablished as  the  rule  itself.  Besides  the  case  of  experts  where  the  sub- 
ject matter  requires  special  study,  skill  and  experience,  the  opinions  of 
common  observers  in  regard  to  common  appearances,  facts  and  con- 
ditions have  been  received  as  evidence  in  a  great  variety  of  cases. 

Thus,  such  opinions  have  been  received  in  questions  of  identity  as 
applied  to  persons,  animals,  handwriting,  and  sounds,  and  in  estimat- 
ing the  size,  weight,  distance  and  color  of  objects.  State  v.  Shinborn, 
46  N.  H.  497,  88  Am.  Dec.  224.  Also  to  show  the  direction  of  force 
as  evidenced  by  its  effects.  The  Clipper  v.  Logan,  18  Ohio,  375.  That 
certain  blood  stains  came  from  below  upward.  Commonwealth  v. 
Sturtivant,  117  Mass.  122,  19  Am.  Rep.  401.  That  certain  footprints 
corresponded  with  certain  boots.  Commonwealtli  v.  Pope,  103  Mass. 
440.  That  certain  hairs  were  human.  Commonwealth  v.  Dorsey,  103 
Mass.  412.  That  a  place  in  a  highway  was  bad  and  dangerous.  Lund 
and  Wife  v.  Inhabitants  of  Tyngsborough,  9  Cush.  (Mass.)  36.  That 
a  highway  or  bridge  is  safe.  Ellsworth,  J.,  in  Dunham's  Appeal  from 
Probate,  27  Conn.  198.  That  a  heap  of  stones  in  a  highway  was  an 
object  calculated  to  frighten  horses  of  ordinary  gentleness.  Clinton 
v.  Howard,  42  Conn.  294.  That  effluvia  from  a  certain  privy  and  pig- 
sty necessarily  rendered  the  plaintiff's  house  uncomfortable  as  a  place 
of  abode.  Kearney  v.  Farrell,  28  Conn.  319,  73  Am.  Dec.  677.  That 
a  certain  dam  was  sufficient  to  withstand  the  force  of  a  certain  stream 
of  water.  Porter  v.  Pequonnoc  Manufacturing  Co.,  17  Conn.  253. 
That  a  person  was  intoxicated.  People  v.  Eastwood,  14  N.  Y.  562. 
That  one  appeared  sad.  Culver  v.  Dwight,  6  Gray  (Mass.)  444.  That 
a  person  was  of  a  certain  age.  De  Witt  v.  Barly,  17  N.  Y.  344;  Morse 
v.  State,  6  Conn.  9.  That  one  is  sane  or  insane.  Grant  v.  Thompson, 
4  Conn.  209,  10  Am.  Dec.  119;  Kinne  v.  Kinne,  9  Conn.  103,  21  Am. 
Dec.  732 ;  Dunham's  Appeal  from  Probate,  27  Conn.  192.  That  a  per- 
son evinced  a  change  in  intelligence  or  a  want  of  coherence  in  re- 
marks. Barker  v.  Comins,  110  Mass.  477;  Nash  v.  Plunt,  116  Mass. 
237.  That  persons  appeared  attached  to  each  other.  McKee  v.  Nel- 
son, 4  Cow.  (N,  Y.)  355,  15  Am.  Dec.  384.  That  a  horse  appeared  well 
and  free  from  disease.  Spear  v.  Richardson,  34  N.  H.  428.  That  a 
horse's  feet  were  diseased.  Willis  v.  Quimby,  31  N.  H.  485.  That 
a  horse  had  a  sulky  disposition.  Whittier  v.  Franklin,  46  N.  11.  23, 
88  Am.  Dec.  185. 

These  exceptions  to  the  general  rule  are  allowed  on  the  ground  of 
necessity,  where  the  subject  of  inquiry  is  so  indefinite  and  general  as 
not  to  be  susceptible  of  direci  proof,  or  where  the  facts  on  which  the 


Sec.  1)  BY  ORDINARY  WITNESSES  763 

witness  bases  his  opinion  are  so  numerous  or  so  evanescent  that  they 
cannot  be  held  in  the  memory  and  detailed  to  the  jury  precisely  as 
they  appeared  to  the  witness  at  tlie  time. 

To  render  opinions  of  common  witnesses  admissible  it  is  indispen- 
sable that  the  opinions  be  founded  on  their  own  personal  observation 
and  not  on  the  testimony  of  others,  or  on  any  hypothetical  statement 
of  facts,  as  is  permitted  in  the  case  of  experts.  In  some  of  the  cases  it 
is  held  that  the  opinion  can  only  be  received  in  connection  with  facts 
stated  by  the  witness.  In  other  cases  this  is  not  required ;  as,  for  in- 
stance, in  questions  respecting  the  identity  of  persons.  A^witness 
well  acquainted  with  another  usually  identifies  him  without  conscious 
mental  effort  in  the  way  of  comparison  or  inference.  In  the  absence 
of  striking  peculiarities  of  form  or  feature  the  identification  may  be, 
and  often  is,  by  the  mere  expression  of  countenance,  which  cannot  be 
described.  And  the  witness  may  be  correct  in  'his  opinion,  and  yet  be 
unable  to  give  a  single  feature,  or  the  color  of  the  hair,  or  the  eyes,  or 
any  particulars  as  to  the  dress.  In  such  cases  the  distinction  between 
•  opinion  and  fact  is  so  very  nice  that  it  might  perhaps  have  been  as 
well  to  consider  such  identification  as  a  fact,  like  any  other  direct  per- 
ception of  the  senses. 

Where  the  disposition  of  a  person  or  of  an  animal  (as  in  this  case) 
is  to  be  ascertained,  the  fact  to  be  proved,  being  latent,  can  be  ascer- 
tained only  by  symptoms  and  outward  manifestations.  If  these  hap- 
pen to  be  very  striking  they  may  remain  in  the  memory  and  can  be 
stated,  but  in  many  cases  they  are  very  slight  in  each  particular  in- 
stance, and  only  tlie  impression  of  an  indefinite  number  of  such  ap- 
pearances remains,  resulting  in  an  opinion  that  the  quality  or  dispo- 
sition in  question  exists. 

In  all  cases  it  is  important,  with  a  view  to  confirm  the  opinion,  that 
the  witness  should  be  able  to  state  such  facts  as  will  show  presumptive- 
ly that  his  opinion  is  well  founded.  But  it  is  not  quite  correct  to  say 
that  the  opinion  of  a  witness  is  entitled  to  consideration  only  so  far 
as  the  facts  stated  by  him  sustain  the  opinion,  unless  the  proposition  is 
understood  to  include  among  the  facts  referred  to,  the  acquaintance 
of  the  witness  with  the  subject-matter  and  his  opportunities  for  ob- 
servation. The  very  basis  upon  which,  as  we  have  seen,  this  excep- 
tion to  the  general  rule  rests,  is  that  the  nature  of  the  subject-matter 
is  such  that  it  cannot  be  reproduced  or  detailed  to  the  jury,  precisely  as 
it  appeared  to  the  witness  at  the  time. 

We  think  the  defendant  was  not  aggrieved  by  the  ruling  of  the 
court  in  admitting  the  evidence  objected  to,  and  his  motion  for  a  new 
trial  is  therefore  denied. 

In  this  opinion  the  other  judges  concurred." 

16  And  so  in  Simoueau  v.  Keene  Electric  Ky.  (N.  H.)  100  Atl.  551  (1917). 


764  OPINIONS  i-ND  CONCLUSIONS  (Cll.  4 


GAHAGAN  v.  BOSTON  &  L.  RY.  CO. 

(Supreme  Judicial  Court  of  Massacliusetts,  1S61.     1  Allen,  1S7,  79  Am. 

Dec.  724.) 

Tort  for  an  injury  to  the  plaintiff's  intestate  while  passing  along  a 
highway  in  Cambridge,  by  being  crushed  between  the  cars  of  the  de- 
fendants, whereby  his  death  was  caused.     *     *     * 

Another  ground  rehed  upon  by  the  plaintiff  was,  that  the  flagman 
at  the  crossing  was  a  careless  and  intemperate  person,  and  for  that 
cause  unsuitable  to  be  employed  in  that  capacity,  and  it  appeared  that 
he  had  since  been  in  the  house  of  correction  as  a  common  drunkard. 
The  defendants  denied  that  the  flagman  was  an  intemperate  person, 
and,  for  the  purpose  of  showing  that  he  was  not  so  while  in  their 
employ,  asked  dift'erent  witnesses,  against  the  objection  of  the  plaintiff', 
whether,  during  a  series  of  years,  when  they  had  often  been  at  the 
crossing,  the  flagman  was  attending  to  his  duty,  and  whether  they  ever 
saw  any  indication  of  intemperance  in  his  conduct,  and  if  he  appeared 
to  be  a  man  competent  to  his  place.  These  questions  were  asked  wit- 
nesses not  as  experts  or  having  any  peculiar  skill. ^° 

Hoar,  J-  *  *  *  The  plaintiff's  evidence  was  not  as  to  the  conduct 
or  condition  of  the  flagman  at  the  time  of  the  accident,  but  was  of- 
fered to  prove  that  the  defendants  were  negligent  in  employing  an 
intemperate  and  incompetent  person.  This  raised  directly  the  ques- 
tion as  to  his  general  habits  and  behavior,  and  it  was  tlierefore  right 
to  allow  the  defendants  to  show  that  he  was  careful,  attentive  and  tem- 
perate. Robinson  v.  Fitchburg  &  Worcester  R.  R.  Co.,  ubi  supra 
[7  Gray,  92].  This  was  a  fact  which  could  be  proved  by  witnesses 
who  had  seen  his  conduct,  and  could  testify  to  the  facts  which  they 
had  observed.    It  did  not  require  that  they  should  be  experts.    *    *    * 

Judgment  on  the  verdict." 


REG.  V.  ROWTON. 

(Court  of  Criminal  Appeal,  18G5.     10  Cox,  Cr.  Cas.  25.) 

CocKBURN,  C.  J.^'  The  question  in  this  case  is,  whether  the  an- 
swer given  by  a  witness,  who  was  called  to  rebut  the  general  evidence 
to  good  character  which  had  been  given  in  favour  of  the  prisoner, 
and  who  was  asked  what  the  defendant's  general  character  for  de- 

i«  Statement  condensed  and  part  of  opinion  omitted. 

17  But  see  Lanf,'ston  v.  Soutlicm  Electric  U.  Co.,  147  Mo.  457,  48  S.  W.  835 
(1898);  Johnson  v.  Caughren,  55  Wash.  125,  104  Pac.  170,  19  Ann.  Cas.  1148 
(1909).  Apparently  the  majority  of  the  courts  exclude  such  opinion,  but  differ 
considerably  as  to  the  reason. 

18  {Statement,  parts  of  opinions  of  Cockburn,  C.  J.,  and  Earle,  J.,  the  opin- 
ions of  Martin,  13.,  and  Willes,  J.,  and  the  additional  opinion  of  Coclcbum, 
(>.  J.,  are  omitted. 


Sec.  1)  BY  ORDINARY  WITNESSES  7G5 

cency  and  morality  and  whose  answer  was,  to  the  effect  or  in  these 
terms,  "I  know  nothing  of  the  neighborhood's  opinion,  because  I  was 
only  a  boy  at  school ;  but  my  own  opinion  and  the  opinions  of  my 
brothers  who  were  also  pupils  of  his  is,  that  his  character  is  that  of 
a  man  capable  of  the  grossest  indecency,  and  the  most  flagrant  im- 
morality;" the  question  is  whether  it  was  proper  to  leave  that  answer 
to  the  consideration  of  the  jury  who  tried  the  case.  I  am  of  opinion 
that  it  was  not,  and  the  conviction  therefore  cannot  stand.  Two  ques- 
tions present  themselves ;  the  first,  whether  when  evidence  in  favour  of 
the  character  of  the  prisoner  has  been  given  on  his  behalf,  evidence  of 
bad  character  can  be  adduced  upon  tlie  part  of  the  prosecution  to  rebut 
the  evidence  so  given.  I  am  clearly  of  opinion  that  such  evidence  may 
properly  be  received.     *     *     * 

Assuming,  however,  that  the  evidence  was  properly  received  to  rebut 
the  prior  evidence  of  good  character  adduced  by  the  prisoner,  the 
question  still  presents  itself  of  whether  the  answer  which  was  given 
to  a  question  perfectly  legitimate  in  its  character  was  an  answer  which 
it  was  proper  to  leave  to  the  jury.  In  the  first  instance  it  becomes 
necessary  to  consider  what  is  the  meaning  of  evidence  to  character. 
It  is  laid  down  in  the  books  that  a  prisoner  is  entitled  to  give  evidence 
as  to  his  general  character.  What  does  that  mean?  Does  it  mean 
evidence  as  to  his  reputation  amongst  those  to  whom  his  conduct  and 
position  is  known,  or  does  it  mean  evidence  of  disposition  ?  I  think  it 
means  evidence  of  reputation  only.  I  quite  agree  that  what  you  want 
to  get  at,  as  bearing  materially  on  the  probability  or  improbability  of  the 
prisoner's  guilt,  is  the  tendency  or  disposition  of  his  mind  to  commit 
the  particular  offence  with  which  he  stands  charged ;  but  no  one  ever 
heard  of  a  question  put  dehberately  to  a  witness  called  on  behalf  of  a 
prisoner  as  to  the  prisoner's  disposition  of  mind.  The  way,  and  the 
only  way,  the  law  allows  of  your  getting  at  the  disposition  and  tendency 
of  his  mind  is  by  evidence  as  to  general  character  founded  upon  the 
knowledge  of  those  who  know  anything  about  him  and  of  his  general 
conduct.  Now  that  is  the  sense  in  which  I  find  the  word  character 
used  and  applied  by  all  the  text  writers  of  authority  upon  the  subject 
of  evidence.  Mr.  Russell  in  his  book,  which  has  now  become  a  stan- 
dard work  of  authority,  puts  the  admissibility  or  the  reception  of  evi- 
dence to  character  upon  this  ground,  that  the  fact  of  a  man  having  had 
an  unblemished  reputation  up  to  the  time  of  the  particular  transac- 
tion in  question,  leads  strongly  to  the  presumption  that  he  was  incapable 
of  committing,  and  therefore  did  not  commit  the  offence  with  which 
he  stands  charged. 

We  are  not  now  considering  whether  it  is  desirable  that  the  law  of 
England  should  be  altered  in  this  respect,  or  whether  it  should  be  com- 
petent for  you  to  get  at  the  tendency  and  disposition  of  a  man's  mind, 
which  becomes  an  element  in  the  consideration  of  the  case,  by  evidence 
of  his  general  disposition.  It  may  be  that  it  would  be  expedient  to  im- 
port into  the  administration  of  our  law  the  practice  of  some  other 


766  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

countries  and  to  go  into  the  history  of  a  man's  antecedents,  with  the 
view  on  the  part  of  the  prosecution  of  showing  that  he  is  capable  and 
therefore  Hkely  to  commit  the  offence;  or,  stopping  short  of  that,  it 
may  be  expedient  that  if  you  allow  the  prisoner  the  advantage  of  in- 
troducing, if  he  pleases,  the  issue  of  character  to  go  into  the  facts 
from  which  the  inference  as  to  character  might  be  drawn  in  his  favour. 
No  one  pretends  that  you  can  ask  as  to  a  specific  fact,  though  every 
one  will  agree  that  one  fact  of  honesty  or  dishonesty,  as  the  case  may 
be,  would  weigh  infinitely  more  than  the  opinion  of  his  friends  or  neigh- 
bors as  to  his  general  character.  But  that  cannot,  according  to  the 
practice,  be  done.  The  truth  is,  this  part  of  our  law  is  an  anomaly. 
Although,  logically  speaking,  it  is  quite  clear  that  an  antecedent  bad 
character  would  form  quite  as  reasonable  a  ground  for  the  presumption 
and  probability  of  guilt  as  previous  good  character  lays  the  foundation 
of  innocence,  yet  you  cannot,  on  the  part  of  the  prosecution,  go  into 
evidence  as  to  bad  character.  This  allowing  of  evidence  of  good  char- 
acter in  favour  of  the  prisoner  to  be  given,  has  grown  up  from  a  de- 
sire to  administer  this  part  of  our  law  with  mercy  as  far  as  possible. 
It  has  sprung  up  from  a  time  when  the  law  was  according  to  the  com- 
mon estimation  of  mankind  severer  than  it  should  have  been. 

Be  that  as  it  may,  this  class  of  evidence  has  engrafted  itself  ^as  a 
sort  of  anomalous  exception  on  our  law,  and  we  must  deal  with  it  as 
we  find  it,  and  the  opinion  of  all  who  have  dealt  with  the  subject  of 
evidence  is,  that  it  is  to  reputation  we  must  confine  it.  It  is  true  that 
in  practice,  whenever  a  witness  is  called  to  character  it  gives  a  greater 
cogency  and  force  to  his  evidence,  if  the  evidence  be  introduced  by  a 
statement  of  circumstances  from  which  it  may  be  the  more  apparent 
and  readily  believed  that  the  witness  has  had  a  full  and  abundant  op- 
portunity to  acquire  information  so  as  to-be  able  to  speak  satisfactorily 
upon  the  character  of  the  prisoner;  and  in  practice  it  is  very  often 
carried  beyond  what,  I  think  if  we  stood  upon  the  strict  letter  of  the 
law,  can  be  altogether  justified.  But  Mr.  Phillips  has  truly  pointed  out 
that  facts  which  do  not  come  within  the  rule  that  evidence  may  be  re- 
ceived of  general  character,  are  very  often  given  in  evidence  in  fa- 
vour of  prisoners.  But  when  we  come  to  consider  the  question  of 
what,  in  the  strict  interpretation  of  the  law,  is  the  limit  of  such  evi- 
dence, I  must  say,  in  my  judgment,  it  must  be  restrained  to  this,  the 
evidence  must  be  of  the  man's  general  reputation  and  not  the  individual 
opinion  of  the  witness.  I  put  a  question  in  the  course  of  the  dis- 
cussion, to  which  I  did  not  receive  an  answer  which  at  all  tended  to 
shake  my  opinion  upon  this  point;  and  the  question  was — suppose  a 
witness  acknowledges,  in  answer  to  a  question  put  to  him  relative  to  the 
general  character  of  the  accused,  that  he  knows  nothing  of  the  general 
character,  but  that  he  had  had  abundant  opportunity  of  forming  an 
individual  opinion  as  to  his  honesty  or  the  particular  moral  quality 
that  came  in  question  in  the  particular  case,  I  take  it  to  be  clear  that 
if  that  question  be  objected  to,  it  could  not  be  received  in  evidence. 


Sec.  1)  BY  ORDINARY  WITNESSES  7G7 

The  witness  who  acknowledged  that  he  knew  nothing  of  the  general 
character,  and  had  no  opportunity  of  knowing  it  in  the  sense  of 
reputation,  would  not  he  allowed  to  give  an  opinion  as  to  a  man's 
character  in  the  more  limited  sense  of  his  disposition. 

Now,  then,  if  that  be  the  true  doctrine  on  the  subject  of  the  admis- 
sibility of  evidence  to  character  in  favour  of  the  prisoner,  the  next 
question  that  presents  itself  is  within  what  limits  must  the  rebut- 
ting evidence  be  confined  which  is  adduced  to  meet  that  evidence 
which  the  prisoner  has  brought  forward?  Now,  I  think  that  evi- 
dence must  be  of  the  same  character  and  kept  within  the  same  limits; 
that  while  you  can  give  evidence  of  general  good  character,  so  the 
evidence  called  to  rebut  it  must  be  evidence  of  the  same  general  de- 
scription showing  that  the  evidence  which  has  been  given  to  estab- 
lish a  good  reputation  on  the  one  hand  is  not  true  because  the  man's 
general  reputation  was  bad.  Now,  then,  what  is  the  answer  in  the 
present  case  ?  The  witness,  it  seems,  disclaims  all  knowledge  as  to 
the  general  reputation  of  the  accused ;  what  he  says  is  this : — *T  know 
nothing  of  the  neighborhood's  opinion."  I  take  the  word  neighborhood 
to  mean,  "I  know  nothing  of  the  opinion  of  those  with  whom  the  man 
has  in  the  ordinar}'-  occupations  of  life  been  brought  immediately  into 
contact.  I  knew  him  and  so  did  two  brothers  of  mine  when  he  was 
in  school,  and,  in  my  opinion,  his  disposition," — in  that  sense  the  word 
"character"  comes  in  question  when  you  look  at  the  answer, — "in 
my  opinion  his  disposition  is  such  that  he  is  capable  of  committing  the 
class  of  ofifemces  with  which  he  stands  charged."  I  am  strongly  of 
opinion  that  the  evidence  is  not  admissible.     *     *     * 

ErlE,  J.  *  *  *  With  respect  to  the  second  question,  I  do  not 
agree  with  the  Lord  Chief  Justice.  I  am  entirely  of  opinion  with  him 
that  individual  facts  are  to  be  excluded,  and  whether  the  answer  given 
by  the  witness  does  comprise  something  in  the  nature  of  an  in- 
dividual fact  or  not,  I  do  not  stop  to  inquire,  because  it  appears  to  me 
that  a  question  of  very  general  importance  has  been  raised  and  has 
been  argued ;  and  as  to  this  question  of  general  importance  I  assume 
that  the  answer  understood  in  such  sense  is  admissible.  What  is  the 
principle  of  admitting  evidence  of  character?  I  am  of  opinion  that 
the  evidence  is  admissible  for  the  purpose  of  showing  the  disposition 
of  the  party  accused,  and  raising  a  presumption  from  that  disposition, 
that  he  had  not  committed  the  crime  imputed  to  him.  Now,  disposi- 
tion cannot  be  ascertained  directly;  it  is  only  to  be  ascertained  by  the 
opinion  of  others,  and  the  opinion  of  others  must  be  founded  either 
on  their  own  personal  experience,  or  must  be  founded  on  the  expres- 
sion of  opinion  by  others  whose  opinion,  if  it  ought  to  have  any  avail, 
ought  to  be  founded  on  their  personal  experience. 

The  point  at  issue  between  us  is  whether  the  Court  is  at  liberty  to 
receive  a  statement  of  the  repute  of  a  person  founded  on  personal  ex- 
perience of  the  witness  who  attends  to  give  in  evidence  his  estimate  of 
the  disposition  of  the  prisoner,  an  estimate  of  the  character  of  the 


768  OPINIONS  AND  CONCLUSIONS  (Cll.  4 

prisoner,  taking  it  in  the  sense  of  disposition,  which  long  personal 
knowledge  and  acquaintance  of  his  habits  enable  him  to  form.  I  am 
of  opinion  that  each  source  of  evidence  is  admissible :  you  may  have 
the  general  rumour  prevalent  in  the  neighborhood  where  the  party  re- 
sides, and,  according  to  my  opinion,  you  may  have  the  personal  ex- 
perience of  those  who  have  had  abundant  opportunity  of  forming  a 
more  real  substantial  guiding  opinion  than  that  which  is  to  be  gathered 
from  the  casual  conversation  of  persons.  According  to  my  experience 
I  never  saw  a  witness  examined  to  character  without  an  inquiry  into 
his  own  personal  means  of  knowledge  of  that  character.  I  have  never 
known  the  evidence  to  go  to  the  jury  without,  according  to  my  expe- 
rience, their  being  told  to  estimate  the  weight  of  the  evidence  entire- 
ly upon  the  personal  experience  of  the  witness.  A  witness  is  called 
to  say  that  "this  man  has  been  in  my  employ  for  twenty  years,  and  I 
have  always  regarded  him  with  the  highest  estimation  and  respect,  but 
I  never  heard  a  human  being  speak  of  him  in  my  life." 

I  take  it  that  the  principle  that  the  Lord  Chief  Justice  has  laid  down 
would  require  that  the  presiding  judge  when  the  evidence  was  offered 
should  say  it  is  not  admissible.  "I  know  nothing  but  from  my  persona- 
experience;  I  never  heard  a  human  being  express  an  opinion  of  him, 
but  I  have  had  abundant  experience  of  him,  and  he  is  one  of  the 
worthiest  of  the  race  he  belongs  to."  That  is  personal  experience. 
That  is  the  point  on  which  I  differ.  To  my  mind  that  personal  ex- 
perience enables  the  witness  to  say  "my  repute  of  him  is  such  as  I 
express,"  and  that  personal  experience  gives  cogency  to*  the  evidence ; 
whereas  a  witness  saying  "I  have  heard  some  persons  say — I  have 
heard  generally  a  report  in  favour  of  the  prisoner,"  is  very  slight  in 
comparison.  I  think  if  the  proposition  is  that  general  character  is 
alone  admissible,  it  is  an  impossible  fact  to  state.  There  is  no  such 
think  as  general  rumour;  it  lies  in  the  collection  of  the  sayings  of  a 
number  of  individuals ;  you  cannot  ask  who  spoke  that  as  an  individual 
fact,  but  it  is  a  general  inference  supposed  to  be  from  hearing  a  num- 
ber of  separate  and  specific  statements  in  favour  of  the  party.  I  think 
that  the  notion  that  general  character  is  alone  admissible,  is  not  strict- 
ly accurate,  if  you  come  to  limit  it  to  separate  individuals.  If  a  witness 
was  asked  what  individual  has  he  ever  heard  give  a  particular  opin- 
ion— an  opinion  of  a  particular  fact,  that  would  be  wholly  inadmissible. 

I  attach  considerable  weight  to  this  distinction,  because  in  my 
opinion  the  best  character  is  that  which  is  the  least  talked  about.  If  the 
discussion  is  whether  the  party  is  honest  or  not,  if  the  answer  is  we 
believe  him  honest,  so  far  from  that  amounting  to  evidence  in  favour  of 
his  honesty  superior  to  that  of  a  man  whose  honesty  was  never  thougiit 
of  being  questioned,  I  should  say  that  it  should  have  a  different  ef- 
fect to  that.  I  know  that  is  a  wide  and  general  question.  I  must 
say  that  I  have  attempted  to  give  expression  to  the  arguments  of  Mr. 
Tayk)r,  which  commanded  my  assent  upon  this  branch  of  the  argu- 
ment, and  I  have  stated  how  my  experience  has  been  with  respect  to 


Sec.  1)  BY  ORDINARY  WITNESSES  769 

asking  for  the  personal  experience  of  the  witness.  When  I  look  to 
the  case  of  Rex  v.  Davidson,  31  St.  Tr.  189,  190,  which  was  cited  by 
the  learned  counsel  for  the  prosecution,  I  am  strongly  confirmed  in 
saying  that  in  my  opinion  Lord  Ellenborough  held,  and  Mr.  Holroyd 
and  the  other  counsel  in  that  case  were  all  of  them  of  opinion,  that  the 
personal  experience  of  a  witness,  or  an  opinion  founded  upon  his  per- 
sonal experience,  was  admissible  in  evidence.  There  were  eleven  wit- 
nesses to  character  called  in  the  case  of  Rex  v.  Davidson,  and  though 
I  have  not  looked  at  the  book  for  some  time,  according  to  my  expe- 
rience of  that  case,  five  or  six  out  of  the  eleven  gave  very  considerable 
evidence  of  their  personal  experience  so  as  to  show  the  means  they 
had  of  founding  an  opinion  upon  personal  experience.  Lord  Moira 
was  the  first  witness  called,  and  he  stated  that  the  prisoner  had  been 
employed  in  India  and  in  other  places  for  a  great  many  years,  and 
when  he  came  to  a  statement  of  a  specific  transaction,  then  it  was  that 
Lord  Ellenborough  interfered,  and  said  particular  facts  are  never 
admissible.  I  find  out  of  the  eleven  witnesses  each  of  them  was  ask- 
ed what  were  their  means  of  knowledge  of  the  matter,  and  what  was 
their  opinion,  and  the  question  put  was,  "In  your  opinion  is  he  capable 
of  committing  a  crime  of  this  description." 

I  can  only  say  from  the  numerous  reports  the  practice  appears  to  be 
very  strongly  in  favour  of  my  opinion,  that  witnesses  are  frequently 
stopped  by  an  attempt  to  introduce  an  individual  fact.  Means  of 
knowledge  is  the  foundation  of  the  general  inference  of  character. 
Whatever  difference  of  opinion  there  is  between  the  Lord  Chief  Jus- 
tice and  myself  on  the  second  question,  I  entirely  concur  in  the  first 
question.  In  the  particular  case,  the  question  "what  was  the  charac- 
ter of  the  prisoner?"  and  the  answer  of  the  schoolboy  "I  knew  him  at 
school  and  I  say  his  character  is  bad,"  if  it  had  stopped  there  it  would 
have  fallen  within  my  principle,  and  would  have  been  admissible ; 
it  was  a  statement  of  personal  experience,  and  he  was  bound  to  give  his 
answer  according  to  the  general  inference  he  had  drawn  from  his  per- 
sonal experience  as  to  the  character,  but  he  added  a  specific  fact, 
"My  two  brothers  told  me  something."  That  individual  fact,  in  an- 
swer, would  not  be  admissible,  but  in  a  grave  case  involving  a  very  im- 
portant question  I  cannot  put  it  minutely  on  the  particular  answer.  On 
the  general  ground  I  have  stated  I  think  that  both  questions  ought  to  be 
answered  in  the  affirmative,  and  tliat  the  conviction  should  be  af- 
firmed. 

CocKBURN,  C.  J.  I  would  not  be  thought  for  a  moment  to  make 
any  attempt  to  reply  on  anything  that  has  fallen  from  the  Chief  Jus- 
tice of  the  Common  Pleas.  I  am  only  anxious  that  in  consequence  of 
one  observation  made,  I  should  not  for  one  moment  be  misunderstood 
in  the  judgment  I  have  pronounced.  I  am  ready  to  admit  that  that 
negative  evidence  to  which  I  have  referred,  of  a  man  saying,  "I  never 
heard  anything  against  the  character  of  the  person  of  whose  character 
HiNT.Ev. — 49 


770  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

I  come  to  speak,"  should  not  be  excluded.  I  think,  though  it  is 
given  in  a  negative  form,  it  is  the  most  cogent  evidence  of  a  man's 
good  character  and  reputation,  because  a  man's  character  does  not  get 
talked  about  till  there  is  some  fault  to  be  found  with  him.  •  It  is  the 
best  evidence  of  his  character  that  he  is  not  talked  about  at  all.  I 
think  the  evidence  is  admissible  in  that  sense.  I  am  only  anxious  that 
I  should  not  be  misunderstood. 

I  will  just  mention  that  upon  the  first  point  all  my  learned  brotliers 
agree  with  the  judgment  I  have  pronounced;  and  the  Lord  Chief 
Baron,  my  Brothers  Williams,  Martin,  Channell,  Blackburn, 
Keating,  Pigott,  and  SheE  all  concur  upon  the  second  point. 

Conviction  quashed.^® 


PEOPLE  v.  EASTWOOD. 

(Court  of  Appeals  of  New  York,  1856.     14  N.  T.  562.) 

On  the  trial  of  the  defendant  on  a  charge  of  homicide. 

One  Green  was  called  for  the  prisoner,  and  testified  that  he  arrived 
at  the  scene  of  the  affray  soon  after  the  deceased  was  knocked  down ; 
that  he  then  saw  Eastwood,  with  whom  he  was  well  acquainted,  and 
who  was  his  relative ;  that  he  was  accustomed  to  see  men  under  the 
iniluence  of  liquor  and  intoxicated;  and  that  the  prisoner  appeared  as 
though  something  was  the  matter  with  him.  The  counsel  for  the  pris- 
oner then  put  the  following  question  to  the  witness ;  From  his  con- 
duct and  deportment,  and  other  facts  connected  with  it,  state  whether, 
in  your  judgment,  he  was  to  any  considerable  extent  under  the  influence 
of  intoxicating  liquors?  The  counsel  for  the  prosecution  objected  to 
this  question  on  the  ground  that  it  was  not  competent  for  the  wit- 
ness to  state  his  opinion ;  that  he  must  be  confined  to  a  statement  of 
the  facts.  The  court  sustained  the  objection,  and  the  defendant's 
counsel  excepted.  The  witness  then  testified  to  some  facts  tending  to 
prove  that  the  prisoner  was  intoxicated.^^ 

Mitchell,  J.  *  *  *  The  objection  was  accordingly  to  the  form 
of  the  question,  as  if  it  sought  the  witness'  opinion.  If  the  opinion  of 
the  witness  had  been  asked  as  to  facts,  not  within  his  own  observation, 
the  objection  would  have  been  good;  as  to  such  facts,  opinions  can  be 
given  generally  only  as  to  matters  of  science  or  art,  and  by  men  of 
the  particular  science  or  art.  The  Court  of  Oyer  and  Terminer  were 
probably  misled  by  the  form  in  which  the  question  was  put.  The 
inquiry  was  not  intended  to  bring  out  an  opinion,  but  to  lead  the  wit- 
ness to  answer  to  a  fact  which  he  saw.  If  the  question  had  been  (as 
it  might  have  been)  direct,  "What  was  the  condition  of  the  prisoner 

18  Soe,  also,  People  v.  Albcrs,  137  Mich.  678,  100  N.  W.  908  (1904) ;  People 
V.  Van  (Jiiasheck,  ISO  N.  Y.  40S,  82  N.  E.  718,  22  L.  R.  A.  (N.  S.)  650,  12  Aun. 
Cap.  745  (1907),  where  a  nunil)or  of  the  cases  are  collected. 

20  Statement  coudensed  and  part  of  opiuion  omitted. 


Sec.  1)  BY  ORDINARY  WITNESSES  771 

as  to  sobriety  at  that  time?"  it  probably  would  have  been  answered 
(as  it  had  been  before,  by  other  witnesses)  without  objection.  It  did  not 
become  incompetent  by  adding  the  words,  "in  your  judgment,"  while 
the  judgment  was  restricted  to  what  the  witness  saw.  A  child  six 
years  old  may  answer  whether  a  man  (whom  it  has  seen)  was  drunk  or 
sober;  it  does  not  require  science  or  opinion  to  answer  the  question, 
but  observation  merely ;  but  the  child  could  not,  probably,  describe  the 
conduct  of  the  man,  so  that,  from  its  description,  others  could  decide 
the  question.  Whether  a  person  is  drunk  or  sober,  or  how  far  he  was 
affected  by  intoxication,  is  better  determined  by  the  direct  answer  of 
those  who  have  seen  him  than  by  their  description  of  his  conduct. 
Many  persons  cannot  describe  particulars;  if  their  testimony  were  ex- 
cluded, great  injustice  would  frequently  ensue.  The  parties  who  rely 
on  their  testimony  will  still  suffer  an  inconvenience,  for  the  court  and 
the  jury  are  always  most  impressed  by  those  witnesses  who  can  draw 
and  act  a  living  picture  before  them  of  what  they  have  seen,  so  that 
if  there  is  any  controversy  as  to  the  fact,  such  witnesses  control;  if 
there  is  no  controversy  as  to  it,  the  general  testimony  answers  all  use- 
ful purposes.  The  Supreme  Court  was  right  in  granting  a  new  trial 
on  this  ground;  and  the  judgment  and  order  granting  such  new  trial 
should  be  affirmed. 

Judgment  accordingly.^^ 


STATE  V.  TILGHMAN. 
(Supreme  Court  of  North  Carolina,  1850.    33  N.  C.  513.) 

PEARSON,  J.^^  We  have  considered  the  several  questions  presented 
by  the  case  as  made  up  by  his  Honor,  and  have  come  to  the  conclu- 
sion that  there  is  no  error. 

The  first  exception  is  untenable.  The  condition  of  the  deceased 
was  such  as  to  make  his  declarations,  competent  evidence,  as  "dying 
declarations."  It  is  not  necessary,  that  the  person  should  be  in  articulo 
mortis,  (the  very  act  of  dying;)  it  is  sufficient  if  he  be  under  the  ap- 
prehension of  impending  dissolution ;  when  all  motive  for  concealment 
or  falsehood  is  presumed  to  be  absent,  and  the  party  is  in  a  position 
as  solemn,  as  if  an  oath  had  been  administered.     *     *     * 

The  second  exception,  because  of  the  rejection  of  the  opinion  of 
the  wife  of  the  deceased,  that  "she  thought,  the  deceased  thought,  he 
would  not  die  from  the  wounds,"  is  also  untenable.  A  witness  is  al- 
lowed to  give  his  opinion  as  to  the  sanity  of  one  at  the  time  he  made 
his  will :  or  as  to  the  affection  of  a  wife  towards  her  husband,  viz. : 
whether  she  loved  him  or  not ;  because  a  witness  may  have  acquired  a 

21  And  so  in  City  of  Aurora  v.  Hillman,  90  111.  61  (1S7S) ;  Com.  v.  Evler,  217 
Pa.  512,  66  Atl.  746.  11  L.  R.  A.  (N.  S.)  039,  10  Ann.  Cas.  786  (1907),  anno- 
tated. 

2  2  Statement  and  part  of  opinion  omitted. 


772  OPINIONS  AND  CONCLUSIONS  (Cll.  4 

knowledge  of  the  fact,  from  a  thousand  little  circumstances  occurring 
at  different  times  which  it  is  not  possible  to  communicate ;  but  tlie 
matter  to  which  our  attention  is  now  directed  is  not  of  that  charac- 
ter. What  the  deceased  thought  of  his  condition,  was  to  be  judged  of 
by  the  state  of  his  wounds,  and  what  he  then  and  there  said  and  did. 
These  circumstances  it  was  in  the  power  of  the  witness  to  communi- 
cate to  the  Court:,  and  the  Judge  did  right,  requiring  her  to  do  so, 
whereby  he  was  enabled  to  form  an  opinion,  instead  of  allowing  tlie 
witness  to  form  one  for  him.  *  *  * 
No  error. 


CLAPP  V.  FULLERTON. 

(Court  of  Appeals  of  New  York,  1866.    34  N.  Y.  190,  90  Am.  Dec.  6S1.) 

Appeal  from  a  judgment  admitting  a  will  to  probate. 

On  the  part  of  the  contestant,  evidence  was  given  tending  to  show 
that  at  the  date  of  the  will  the  testator  was  enfeebled  by  age,  disease 
and  infirmity;  that  his  mental  faculties  were  impaired;  that  he  was  lo- 
quacious and  querulous;  that  he  was  forgetful  of  facts  and  events, 
which  even  an  old  man  would  be  likely  to  remember;  that  he  was 
conscious  of  these  infirmities,  and  complained  of  them ;  and  that  tJie 
proponent,  with  whom  he  lived,  had  characterized  him  as  childish,  not 
only  in  conversation,  but  also  in  a  letter  to  her  sister,  written  the  spring 
before  the  execution  of  the  will. 

To  this  was  superadded  proof  by  witnesses  who  were  not  claimed  to 
be  experts,  but  who  stated  the  facts  on  which  their  opinions  were  bas- 
ed, that,  in  their  judgment,  he  was  incapable  of  transacting  business 
during  the  last  year  of  his  life. 

This  proof  was  met  by  evidence  of  a  similar  character  from  witness- 
es on  the  part  of  the  proponent,  who,  in  some  instances,  without 
stating  the  facts  on  which  their  judgment  was  based,  testified  that  his 
mind,  in  their  opinion,  was  sound.  Exceptions  were  taken  on  both 
sides  to  the  admission  of  this  description  of  evidence. ^^ 

Porter,  J.  The  surrogate  seems  to  have  assumed  that  non-pro- 
fessional witnesses,  who  did  not  attest  the  execution  of  the  will,  were 
competent  to  express  an  opinion  on  the  general  question  of  testamen- 
tary capacity.  When  a  layman  is  examined  as  to  facts,  within  his  own 
knowledge  and  observation,  tending  to  show  the  soundness  or  un- 
soundness of  the  testator's  mind,  he  may  characterize,  as  rational  or  ir- 
rational, the  acts  and  declarations  to  which  he  testifies.  It  is  legitimate 
to  give  them  such  additional  weight  as  may  be  derived  from  the  con- 
viction they  produced  at  the  time.  The  party  calling  him  may  require 
it,  to  fortify  the  force  of  the  facts,  and  the  adverse  i)arty  may  demand 
it  as  a  mode  of  probing  the  truth  and  good  faith  of  the  narration.  But 
to  render  his  opinion  admissible,  even  to  this  extent,  it  must  be  limited 

28  Stiitornent  condenKcd  and  part  of  opinion  omitted. 


Sec.  1)  BY  ORDINARY  WITNESSES  773 

to  his  conclusions  from  the  specific  facts  he^ discloses.  His  position  is 
that  of  an  observer  and  not  of  a  professional  expert.  He  may  testify 
to  the  impression  produced  by  what  he  witnessed ;  but  he  is  not  legally 
competent  to  express  an  opinion  on  the  general  question,  whether  the 
mind  of  the  testator  was  sound  or  unsound. 

An  exception  to  this  rule  is  recognized  in  the  case  of  attesting  wit- 
nesses. They  are  present  at  the  very  act  of  execution,  and  their  opin- 
ions on  the  general  question  of  testamentary  capacity  are  admitted  ex 
necessitate.  It  is  the  policy  of  the  law  to  provide  all  possible  safe- 
guards for  the  protection  of  the  heir  as  well  as  the  testator.  No  light 
is  excluded  in  reference  to  the  res  gestae,  which  can  be  furnished  by  the 
immediate  actors.  The  subscribing  witnesses  may  be  required  to  state, 
not  only  such  facts  as  they  remember,  but  their  own  convictions  as  to 
the  testator's  capacity ;  for  it  may  well  happen,  that  on  so  vital  a  point 
they  may  retain  a  clear  recollection  of  the  general  result,  long  after 
the  particular  circumstances  are  effaced  by  lapse  of  time  or  obscured 
by  failing  memory. 

In  the  present  case,  the  attesting  witnesses  were  not  called  upon  to 
express  their  judgment;  but  others,  not  qualified  to  speak  as  experts, 
were  permitted  to  testify  generally,  that  in  their  opinion  the  testator 
was  of  sound  mind.  That  this  ruling  was  wrong  is  shown,  with  great 
clearness  and  force,  in  the  opinion  delivered  by  Judge  Bockes  at  the 
General  Term.  If  the  error  had  occurred  on  tlie  trial  of  an  ordinary 
action  at  law,  it  would  have  called  for  a  reversal  of  the  judgment,  in 
accordance  with  the  rule  on  this  subject,  as  heretofore  limited  and  de- 
fined by  the  successive  decisions  in  the  case  of  De  Witt  v  Barley  9 
N.  Y.  371 ;  17  N.  Y.  340,  347. 

The  court  below  was  right  however  in  holding  that  the  error  was 
not  fatal,  if  it  be  apparent,  upon  the  whole  case,  irrespective  of  the 
evidence  improperly  admitted,  that  the  testator  was  clearly  competent, 
and  that  the  will  was  properly  admitted  to  probate.  On  appeals  from 
the  decrees  of  surrogates,  the  Supreme  Court  succeeds  to  the  jurisdic- 
tion and  authority  of  the  old  Court  of  Chancery.  The  review  is  in 
the  nature  of  a  rehearing  in  equity;  and  the  admission  of  improper 
evidence,  on  the  original  hearing,  furnishes  no  ground  for  reversing 
the  final  decision,  if  the  facts  established  by  legal  and  competent  testi- 
mony are  plainly  sufficient  to  uphold  it.  Schenck  v.  Dart  22  N  Y 
420,  421.     *     *     * 

Affirmed.=^* 

2  4  For  a  review  of  the  intermediate  New  York  cases,  see  Holcomb  v.  Hol- 
comb,  95  N.  T.  316  (1884) ;  People  v.  Youngs,  151  N.  Y.  210.  45  N.  E.  460 
(1897).     And  so  in  McCoy  v.  Jordan,  184  Mass.  575,  69  N.  E.  358  (1904). 

See,  also,  In  re  Myer's  Will,  184  N.  Y.  54,  76  N.  E.  920,  6  Ann.  Cas.  26 
(1906),  emphasizing  the  point  that  the  impression  which  the  witness  may  state 
must  have  been  produced  by  the  conduct  at  the  time.  Much  the  same  rule 
as  to  the  time  element  appears  in  Queenan  v.  Oklahoma,  190  U.  S.  548  23 
Sup.  Ct.  762,  47  L.  Ed.  1175  (1902).  For  critical  comment  on  the  doctrine  of 
the  principal  case,  see  Hardy  v.  Merrill,  56  N.  H.  227,  loc.  dt  250,  22  Am. 
Rep.  441  (1875). 


774  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

ATLANTA  ST.  R.  CO.  v.  WALKER. 
(Supreme  Court  of  Georgia,  1893.     93  Ga.  462,  21  S.  E.  48.) 

Bleckley,  C.  J."  *  *  *  The  plaintiff,  testifying  as  a  witness  in 
his  own  behalf,  after  stating  that  he  had  suffered  pain  ever  since  the 
injury,  and  was  still  suffering;  that  he  could  not  lift  as  well  as  he  did  ; 
and  that,  in  lifting  anything  heavy,  he  suffered  at  night  from  it;  that  he 
suft'ered  more  in  cloudy  than  in  fair  weather ;  that  there  was  pain  in 
his  ankle ;  his  leg  bone  ached ;  and  that  his  back  hurt  him  every  time 
he  lifted  any  little  thing, — was  allowed  to  give  his  opinion  that  he 
would  feel  the  injury  as  long  as  he  lived;  that  his  pain  and  suffering 
would  be  permanent.  The  view  of  the  court  was  that,  as  the  question 
of  permanency  was  one  of  opinion,  the  plaintiff,  although  no  expert, 
was  competent  to  give  an  opinion  in  connection  with  his  reasons  for 
it.  In  this,  we  tliink,  the  court  was  mistaken.  Whether  the  injuries 
and  their  effects  were  permanent  or  temporary  was  certainly  matter 
of  opinion ;  but  the  jury,  in  so  far  as  they  were  unaided  by  expert  evi- 
dence, should  have  been  allowed  to  form  their  own  opinion,  not  from 
that  of  nonexperts,  but  from  the  facts  as  proved  by  the  witnesses.  The 
plaintiff'  was  competent  to  testify  to  his  feelings,  pain,  and  symptoms, 
as  well  as  to  all  the  characteristics  of  the  injury,  external  and  internal. 
This  was  the  limit  of  his  competency,  and  any  opinion  legitimately 
arising  out  of  the  facts  could  be  more  safely  formed  by  the  jury  than 
by  him.  Scarcely  anything  is  less  reliable  than  a  sick  plaintift''s  opin- 
ion of  his  own  case,  when  he  is  in  pursuit  of  damages. 

True,  the  Code,  in  section  3867,  declares  that  "where  the  question 
under  examination  and  to  be  decided  by  the  jury,  is  one  of  opinion, 
any  witness  may  swear  to  his  opinion  or  belief,  giving  his  reasons 
therefor.''  The  class  of  questions  here  referred  to  must  be  such  as  lie 
within  the  range  of  common  opinion,  although  they  may  be  somewhat 
within  the  province  of  scientific  opinion,  also.  A  fair  illustration  would 
be  the  question  of  sanity  or  insanity.  Any  witness  may  give  his  opin- 
ion upon  such  questions,  after  stating  the  facts  on  which  it  is  founded. 
But  suppose  the  question  were  whether,  in  a  given  case,  insanity  was 
permanent  or  temporary.  This  would  be  a  question  for  scientific  ex- 
perts ;  and  no  court  would  think  of  taking  the  opinion  of  an  ordinary 
witness  upon  it,  with  or  without  the  facts  on  which  the  opinion  was 
founded.  Such  a  witness  would  be  competent,  upon  stating  the  facts, 
to  testify  to  his  belief  of  the  sickness  or  health  of  any  one,  or  that  he 
suffered  pain.  But  this  is  a  very  different  matter  from  taking  his  opin- 
ion upon  the  question  of  when  and  how  sickness  would  terminate,  or 
whether  a  state  of  pain  would  be  temporary  or  permanent. 

Nonexpert  opinion  might  be  relied  on  to  take  the  step  from  observed 
facts  to  a  present  state  or  condition,  but  to  pass  upon  these  same 

26  Statetnent  and  part  of  opinion  omitted. 


Sec.  1)  BY  ORDINARY  WITNESSES  775 

facts,  the  present  state  and  condition  included,  to  a  probable  future 
state  and  condition,  might  be  within  the  competency  of  expert  opin- 
ion only.  We  think  this  is  so,  in  such  a  case  as  the  present  more  es- 
pecially, where  a  part  of  the  facts  are  not  objective,  but  wholly  sub- 
jective, consisting:  of  the  feelings  and  sensations  of  the  witness  him- 
self, and  being  accessible  to  no  other  witness.  How  could  such  tes- 
timony be  answered?  How  could  the  opinion  of  this  nonexpert  be  met 
by  a  conflicting  opinion  of  another  witness  of  his  own  class?  No  other 
witness  could  possibly  know  what  his  sufferings  are  or  have  been,  so 
as  to  make  them  a  basis  of  belief  or  nonbelief  as  to  their  permanent 
character,  or  as  to  whether  they  would  be  only  temporary.  The  Code 
surely  does  not  intend  tliat  internal  facts — facts  of  mere  individual  con- 
.  sciousness — shall  be  used  as  a  basis  of  the  opinion  which  it  contem- 
plates as  being  admissible  in  evidence,  where  the  question  is  one  of 
opinion.  Both  for  tliis  reason,  and  because  the  question  on  which  the 
witness  in  this  case  was  permitted  to  give  his  opinion  was  a  scientific 
question,  we  think  the  evidence  should  have  been  excluded.  *  *  * 
Judgment  reversed.^" 


TURNER  V.  AMERICAN  SECURITY  &  TRUST  CO. 

(Supreme  Court  of  the  United  States,  1909.    213  U.  S.  257,  29  Sup.  Ct.  420, 

53  L.  Ed.  788.) 

Mr,  Justice  Moody  ^^  delivered  the  opinion  of  the  court: 

In  this  case  we  are  asked  to  review,  on  appeal  and  writ  of  error,  a 
judgment  of  the  court  of  appeals  of  the  District  of  Columbia,  affirm- 
ing a  decree  of  the  supreme  court  of  the  District,  sitting  as  a  probate 
court,  which  admitted  to  probate  certain  paper  writings  purporting  to 
be  the  will  and  codicils  thereto  of  Henry  E.  Woodbury.  The  decree 
was  based  upon  the  findings  of  a  jury  upon  two  issues  submitted  to  it, 
namely: 

"(I)  At  the  time  of  the  execution  of  the  said  several  paper  writings 
propounded  for  probate  as  the  last  will  and  testament  of  Henry  E. 
Woodbury,  deceased,  was  the  said  Henry  E.  Woodbury  of  sound  and 
disposing  mind  and  capable  of  making  a  vaHd  deed  or  contract  ? 

"(2)  Was  execution  of  said  paper  writings  procured  by  the  fraud 
or  undue  influence  of  Sallie  Woodbury,  Mena  Stevens,  or  either  of 
them,  or  any  other  person  or  persons?" 

The  jury  found  that  the  testator  was  of  sound  mind  and  that  he  was 
not  unduly  influenced.  The  questions  brought  here  arose  upon  the 
trial  of  those  issues  and  are  stated  in  the  bill  of  exceptions  duly  al- 
lowed.    *     *     * 

2  6  For  the  use  of  lay  opinion  as  to  the  cause  of  death,  see  Krapp  v.  Metro- 
politan Life  Ins.  Co.,  143  Mich.  369,  106  N.  W.  1107,  114  Am.  St.  Rep.  051 
(iOOG). 

2  7  Part  of  opinion  omitted. 


T7G  OPINIONS  a>:d  conclusions  (Ch.  4 

The  first  eleven  assignments  of  error  relate  to  the  admission  or  ex- 
clusion by  the  trial  court  of  the  testimony  of  lay  witnesses  as  to  their 
opinion  for  or  against  the  mental  capacity  of  the  testator.  In  the 
view  we  take  of  these  assignments  of  error  they  may  be  considered 
together,  and  without  any  statement  as  to  the  testimony  of  the  several 
witnesses. 

The  rule  governing  the  admission  of  testimony  of  this  character 
which  has  been  prescribed  by  this  court  for  the  courts  of  the  United 
States  is  easy  of  statement  and  administration.  Where  the  issue  is 
whether  a  person  is  of  sound  or  unsound  mind,  a  lay  witness  who  has 
had  an  adequate  opportunity  to  observe  the  speech  and  other  conduct 
of  that  person  may,  in  addition  to  relating  the  significant  instances  of 
speech  and  conduct,  testify  to  the  opinion  on  the  mental  capacity  • 
formed  at  the  time  from  such  observation.  Charter  Oak  L.  Ins.  Co. 
v.  Rodel,  95  U.  S.  232,  24  L.  Ed.  433 ;  Connecticut  Mut.  L.  Ins.  Co.  v. 
Lathrop,  111  U.  S.  612,  28  L.  Ed.  536,  4  Sup.  Ct  533;  Queenan  v. 
Oklahoma,  190  U.  S.  548,  47  L.  Ed.  1175,  23  Sup.  Ct.  762. 

In  no  other  way  than  this  can  the  full  knowledge  of  an  unprofes- 
sional witness  with  regard  to  the  issue  be  placed  before  the  jury,  be- 
cause ordinarily  it  is  impossible  for  such  a  witness  to  give  an  adequate 
description  of  all  the  appearances  which  to  him  have  indicated  sanity 
or  insanity.  Such  testimony  has  been  well  described  as  a  compendi- 
ous mode  of  ascertaining  the  result  of  the  actual  observations  -^  of 
witnesses.  Ordinarily,  and  perhaps  necessarily,  the  witness,  in  testi- 
fying to  his  opportunities  for  observation  and  his  actual  observation, 
relates  more  or  less  fully  the  instances  of  his  conversation  or  dealings 
with  the  person  whose  mental  capacity  is  under  consideration,  and  it 
is,  of  course,  competent,  either  upon  direct  or  cross-examination,  to 
elicit  those  instances  in  detail. 

The  order  of  the  evidence  must  be  left  to  the  discretion  of  the  trial 
judge ;  but,  when  sufificient  appears  to  convince  the  trial  judge  that 
the  witness  has  had  an  opportunity  for  adequate  ^*  observation  of  the 

2  8  Mr.  Baron  Park  in  Wright  v.  Tatham,  5  CI.  &  F.  670,  loc.  cit.  735  (18.38): 
"And  though  the  opinion  of  a  witness  upon  oath  as  to  that  fact  [sanity] 
mif,'ht  be  aslo-d,  it  would  be  only  a  compendious  mode  of  ascertaining  the 
result  of  the  actual  observation  of  the  witness,  from  acts  done,  as  to  the 
habits  and  demeanor  of  the  deceased." 

29  Sherwood,  J.,  in  State  v.  Soper,  148  Mo.  217,  49  S.  W.  1007  (1899):  "It 
is  urged  on  behalf  of  defendant  that  in  permitting  witnesses  Maude  Hewitt 
and  others  to  give  their  opinions  respecting  the  sanity  of  defendant  without 
.stating  the  facts  upon  which  they  based  their  opinions,  the  trial  court  erred. 
Ordinarily,  a  lay  witness  is  required,  when  giving  an  opinion  that  such  a  per- 
son is  of  unsound  mind,  to  give  the  facts  on  which  he  founds  that  opinion. 
Not  so,  however,  when  he  gives  expression  to  an  opinion  that  such  per.son  is 
sane,  for  in  that  case  the  subject  of  the  testimony  would  not  give  manifesta- 
tions of  certain  eccentricities  which  usually  mark  the  conduct  of  mind  dis- 
eased.   Ford  V.  State,  71  Ala.  3.S5  (1882) ;   3  Rice,  Ev.  §  21. 

It  is  also  held  thai,  while  the  court  may  properly  exclude  the  opinion  until 
a  sullicient  basis  of  fact  has  been  statt'd,  the  iidmission  of  the  opinion  wltli- 
out  sullicient  showing  Is  not  necessarily  prejudicial,  because  of  the  protectiou 


Sec.  2)  FROM   EXPERT   WITNESSES  777 

person's  mental  capacity,  and  has  actually  observed  it,  then  the  judge 
may  permit  him  to  testify  to  his  opinion.  This  was  the  course  pursued 
by  the  trial  judge  in  this  case.  With  respect  to  each  witness  whose 
testimony  as  to  opinion  was  admitted  or  excluded,  the  judge  exercised 
his  discretion  upon  the  qualifying  testimony. 

We  are  asked  to  review  that  discretion,  and  to  say  that,  in  the  case 
of  the  eleven  witnesses  before  us,  it  was  improperly  exercised.  We 
have  no  hesitation  in  declining  to  do  this.  No  general  rule  can  well 
be  framed  which  will  govern  all  cases,  and  an  attempt  to  do  that  would 
multiply  exceptions  and  new  trials.  The  responsibility  for  the  exer- 
cise of  the  judicial  power  of  determining  whether  a  given  witness  has 
the  qualifications  which  will  permit  him,  to  the  profit  of  the  jury,  to 
state  his  opinion  upon  an  issue  of  this  kind,  may  best  be  left  with  the 
judge  presiding  at  the  trial,  who  has  a  comprehensive  view  of  the  is- 
sue and  of  all  of  the  evidence,  and  the  witness  himself  before  his  face. 

This  is  not  to  say  that,  in  a  very  clear  case,  an  appellate  court  ought  ' 
not  to  review  the  discretion  of  the  trial  judge.  For  instance,  if  it 
should  appear  that  the  witness  had  never  spoken  to  the  testator  or 
seen  any  significant  act,  but  merely  observed  him  driving  from  day  to 
day  through  the  streets,  and  the  opinion  of  such  a  witness  as  to  san- 
ity had  been  received,  it  would  be  the  duty  of  the  appellate  court  to 
correct  the  error.  On  the  other  hand,  if  the  witness  for  years  had 
been  in  constant  communication  with  the  testator,  had  frequently 
conversed  with  him  and  observed  his  conduct  from  day  to  day,  the 
exclusion  of  the  opinion  of  the  witness  ought  to  be  corrected  by  the 
appellate  court.  These  are  instances  of  a  plain  abuse  of  judicial  dis- 
cretion.    *     *     * 

Af^rmed. 


SECTION  2.— FROM  EXPERT  WITNESSES 


ALSOP  v.  BOWTRELE. 

(Coui-t  of  King's  Bench,  1620.     2  Croke.  541.) 

Ejectment  for  lands  in  Munden,  in  the  county  of  Hertford.^" 

The  question  was,   upon  evidence  to   the   jury,   whether   Edmund 

Andrews,  dying  the  twenty-third  day  of  March,  in  the  year  1610,  and 

Anne  his  wife  being  privatement  enseint,  but  not  delivered  until  5th 

January  in  the  year  1611  (which  was  forty  weeks  and  nine  days,  and 

afforded  by  proper  cross-examination.     Chicago  Union  Traction  Co.  v.  Law- 
rence, 211  111.  .37.3,  71  N.  E.  1024  (1904).    An  opinion  that  testator  was  insane, 
based  on  trivial  circumstances,  is  not  sufliciont  to  take  the  question  to  the 
jury.     Winn  v.  Grier,  217  Mo.  420,  117  S.  W.  48  (1909). 
3  0  Part  of  case  omitted. 


778  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

then  delivered  of  a  daughter  named  Ehzabeth),  shall  be  reputed  the 
father  to  the  said  Elizabeth,  or  that  she  were  a  bastard:  for  it  was 
proved  that  he  fell  sick  upon  the  twenty-second  day  of  March,  and 
died  the  day  following  of  the  plague;  and  that  Edmund  Andrews 
(father  of  the  said  Edmund  who  was  dead),  in  malice  to  his  son's  wife, 
did  much  abuse  her,  and  caused  her  to  be  dislodged  from  places  where 
she  was  harboured,  and  to  lie  in  the  cold  streets;  and  that  she  was 
so  used  for  six  weeks  together  before  her  travail;  and  she  being 
brought  into  a  woman's  house  who  commiserated  her  case,  having 
warmth  and  sustenance,  was  delivered  presently  within  twenty- four 
hours  of  the  said  Elizabeth :  and  this  being  proved,  and  this  mis- 
usage,  by  five  women  of  good  credit,  and  two  doctors  of  physic,  viz. 
Sir  William  Baddy  and  Doctor  Mundford,  and  one  Chamberlaine  (who 
was  a  physician,  and  in  nature  of  a  midwife),  upon  their  oath,  they 
affirming  that  the  child  came  in  time  convenient  to  be  the  daughter 
'  of  the  party  who  died ;  and  that  the  usual  time  for  a  woman  to  go 
with  child  was  nine  months  and  ten  days,  viz.  menses  solares,  that  is 
thirty  days  to  the  month,  and  not  menses  lunares,  and  that  by  reason 
of  the  want  of  strength  in  the  woman  or  the  child,  or  by  reason  of  ill 
usage,  she  might  be  a  longer  time,  viz.  to  the  end  of  ten  months,  or 
more ;  and  so  both  ancient  and  modern  authors  and  experience  proves. 
The  Court  held  here,  that  it  might  well  be  as  the  physicians  had 
affirmed,  that  ten  months  may  be  said  properly  to  be  the  time  mulieri- 
bus  pariendo  constitutum.  Against  this  a  record  was  produced  in  Trin- 
ity Term,  18  Edw.  I.  Roll  13,  in  this  court,  that  because  a  wife  went 
eleven  months  after  the  death  of  her  husband,  it  was  resolved,  that 
the  issue  was  not  legitimate,  being  born  post  ultimum  tempus  mulieribus 
pariendo  constitutum.  But  note,  it  is  not  there  shewn  what  was  ultimum 
tempus  mulieribus  pariendo  constitutum.  And  the  physicians  further 
aflfirmed,  that  a  perfect  birth  may  be  at  seven  months,  according  to  the 
strength  of  the  mother,  or  of  the  child  himself,  which  is  as  long  before 
the  time  of  the  proper  birth;  and  by  the  same  reason  it  may  be  as 
long  deferred  by  accident,  which  is  commonly  occasioned  by  infirmi- 
ties of  the  body,  or  passions  of  the  mind :  and  so  the  Court  delivered  to 
the  jury,  that  the  said  Elizabeth,  who  was  born  forty  weeks  and  more 
after  the  death  of  the  said  Edmund  Andrews,  might  well  be  the 
daughter  of  the  said  Edmund. ^^     *     *     * 

31  O'P.rlon,  J.,  in  Younf:  v.  .Tohnsnn.  123  N.  Y.  22fi,  25  N.  E.  3G3  (1890):  "We 
think  that  this  ruling  did  not  contravene  the  general  rule  of  evidence  that 
witnesses  must  state  facts  and  not  opinions.  The  inquiry  as  to  the  conditions 
under  which  pregnancy  may  occur  is  one  peculiarly  within  the  range  of  uied- 
ical  science  and  sldll.  The  common  knowledge  and  judgment  of  mankind 
may  be  greatly  aided  In  an  Inquiry  of  this  character  by  tlie  opinions  of 
h'arned  and  sciontilie  men  who  have  made  the  laws  governing  the  complex 
physical  organism  of  the  human  race  the  subject  of  profound  research  and 
dtudy." 


Sec.  2)  FROM   EXPERT   WITNESSES  779 

CARTER  V.  BOEHM. 
(Court  of  King's  Bench,  17G6.    3  Burr,  1905.) 

This  was  an  assurance-cause,  upon  a  policy  underwritten  by  Mr. 
Charles  Boehm,  of  interest,  or  no  interest :  without  benefit  of  salvage. 
The  insurance  was  made  by  the  plaintiff,  for  the  benefit  of  his  brother, 
Governor  George  Carter. 

It  was  tried  before  Lord  Mansfield  at  Guildhall :  and  a  verdict  was 
found  for  the  plaintiff  by  a  special  jury  of  merchants. 

On  Saturday  the  19th  of  April  last,  Mr.  Recorder,  (Eyre,)  on  be- 
half of  the  defendant,  moved  for  a  new  trial.  His  objection  was, 
"that  circumstances  were  not  sufficiently  disclosed." 

A  rule  was  made  to  shew  cause:  and  copies  of  letters  and  deposi- 
tions were  ordered  to  be  left  with  Lord  Mansfield. 

N.  B. — Four  other  causes  depended  upon  this. 

The  counsel  for  the  plaintiff,  viz.  Mr.  Morton,  Mr.  Dunning,  and 
Mr.  Wallace,  shewed  cause  on  Thursday  the  first  of  this  month.  But 
first, 

Lord  Mansfield  reported  the  evidence — That  it  was  an  action  on  a 
policy  of  insurance  for  one  year;  viz.  from  16th  of  October  1759 
to  16th  of  October,  1760,  for  the  benefit  of  the  Governor  of  Fort  Marl- 
borough, George  Carter,  against  the  loss  of  Fort  Marlborough  in  the 
island  of  Sumatra  in  the  East  Indies,  by  its  being  taken  by  a  foreign 
enemy.  The  event  happened :  the  fort  was  taken,  by  Count  D'Estalgne, 
within  the  year.^^ 

Lord  Mansfield  now  delivered  the  resolution  of  the  court. 

This  is  a  motion  for  a  new  trial. 

In  support  of  it,  the  counsel  for  the  defendant  contend,  "that  some 
circumstances  in  the  knowledge  of  Governor  Carter,  not  having  been 
mentioned  at  the  time  the  policy  was  underwrote,  amount  to  a  con- 
cealment, which  ought,  in  law,  to  avoid  the  policy." 

The  counsel  for  the  plaintiff  insist,  "that  the  not  mentioning  these 
particulars,  does  not  amount  to  a  concealment,  which  ought  in  law,  to 
avoid  the  policy  :   either  as  a  fraud ;  or,  as  varying  the  contract."  *  *  * 

There  are  many  matters,  as  to  which  the  insured  may  be  innocently 
silent — he  need  not  mention  what  the  under-writer  knows — Scientia 
utrinque  par  pares  contrahentes  f  acit. 

An  under-writer  cannot  insist  that  the  policy  is  void,  because  the 
insured  did  not  tell  him  what  he  actually  knew ;  what  way  soever 
he  came  to  the  knowledge. 

The  insured  need  not  mention  what  the  under-writer  ought  to 
know;  what  he  takes  upon  himself  the  knowledge  cf;  or  what  he 
waives  being  informed  of. 

s2  Statement  condensed  and  part  of  opinion  omitted. 


780  OPINIONS  AND  CONCLUSIONS  (Cll.  4 

The  under-writer  needs  not  be  told  what  lessens  the  risque  agreed 
and  understood  to  be  run  by  the  express  terms  of  the  policy.  He 
needs  not  to  be  told  general  topics  of  speculation :  as  for  instance— 
The  under-writer  is  bound  to  know  every  cause  which  may  occasion 
natural  perils ;  as,  the  difficulty  of  the  voyage — the  kind  of  seasons — 
the  probability  of  lightning,  hurricanes,  earthquakes,  etc.  He  is  bound 
to  know  every  cause  which  may  occasion  political  perils;  from  the 
ruptures  of  States  from  war,  and  the  various  operations  of  it.  He  is 
bound  to  know  the  probability  of  safety,  from  the  continuance  or  re- 
turn of  peace ;  from  the  imbecility  of  the  enemy,  through  the  weakness 
of  their  counsels,  or  their  want  of  strength,  &c.     *     *     * 

But  the  defendant  relied  upon  a  letter,  written  to  the  East  India 
Company,  bearing  date  the  16th  of  September,  1759s  which  was  sent 
to  England  by  the  "Pitt,"  Captain  Wilson,  who  arrived  in  May,  1760, 
together  with  the  instructions  for  insuring;  and  also  a  letter  bearing 
date  the  22d  of  September,  1759,  sent  to  the  plaintiff  by  the  same 
conveyance,  and  at  the  same  time,   (which  letters  his  Lordship   re- 

peated.)^^ 

They  relied  too  upon  the  cross-examination  of  the  broker  who 
negotiated  the  policy,  "that,  in  his  opinion,  these  letters  ought  to  have 
been  shewn,  or  the  contents  disclosed;  and  if  they  had,  the  policy 
would  not  have  been  under-written." 

The  defendant's  counsel  contended  at  the  trial,  as  they  have  done 
upon  this  motion,  "that  the  policy  was  void": 

1st.  Because  the  state  and  condition  of  the  fort,  mentioned  in  the 
governor's  letter  to  the  East  India  Company,  was  not  disclosed. 

2dly.  Because  he  did  not  disclose  that  the  French,  not  being  in  a 
condition  to  relieve  their  friends  upon  the  coast,  were  more  likely 
to  make  an  attack  upon  this  settlement,  rather  than  remain  idle._  *    *    * 

It  appears  by  the  governor's  letter  dated  22d  September,  1759,  to  the 
plaintiff,  "that  he  was  principally  apprehensive  of  a  Dutch  ^  war." 
His  words  are— "And  in  case  of  a  Dutch  war,  I  would  have  it  [the 
insurance]  done  at  any  rate."  He  certainly  had  what  he  thought 
good  grounds  for  his  apprehension.  Count  D'Estaigne  being  piloted 
by  the  Dutch,  delivering  the  fort  to  the  Dutch,  and  sending  the  pris- 
oners to  Batavia,  is  a  confirmation  of  those  grounds.  And  probably, 
the  loss  of  the  place  was  owing  to  the  Dutch.    The  French  could  not 

3. -J  Tlio  former  of  them  notifies  to  the  East  India  Company,  that  the  French 
had  the  preceding  year,  a  design  on  foot,  to  attempt  taking  tlmt  sottlonient  hy 
suri)iize-  and  that  it  was  very  probai)le  that  they  might  revive  that  design. 
It  fonfc^'ses  and  represents  the  wealin(>ss  of  the  fort:  its  being  badly  snpplied 
with  stores,  arms  and  ammunition:  and  the  impracticability  of  maintaining 
It  (in  its  then  state)  against  an  lOuropean  enemy. 

The  latter  letter  (to  his  brother)  owns  that  he  is  "now  more  afraid  than 
formerly,  that  the  French  shouhl  attack  and  take  the  settlement;  for,  as 
they  can  not  muster  a  force  to  relieve  their  friends  at  the  coast,  they  may, 
rather  than  remain  idle,  pay  us  a  visit.  It  seems,  th:it  they  had  .such  an  in- 
tention, last  year."  And  therefore  he  desires  his  brother  to  get  an  insurance 
made  upon  his  stock  there. 


Sec.  2)  FROM   EXPERT   WITNESSES  781 

have  got  up  the  river  w^ithout  Dutch  pilots :  and  it  is  plain,  the  whole 
was  concerted  with  them.  And  yet,  at  the  time  of  underwriting  the 
policy,  tliere  was  no  intimation  about  the  Dutch. 

The  reason  why  the  counsel  have  not  objected  to  his  not  disclosing 
the  grounds  of  this  apprehension,  is.  because  it  must  have  arisen  from 
political  speculation,  and  general  intelligence;  therefore,  they  agree, 
it  is  not  necessary  to  communicate  such  things  to  an  underwriter. 

Lastly — Great  stress  was  laid  upon  the  opinion  of  the  broker. 

But  we  all  think,  the  jury  ought  not  to  pay  the  least  regard  to  it. 
It  is  mere  opinion  ;  which  is  not  evidence.  It  is  opinion  after  an  event. 
It  is  opinion  without  the  least  foundation  from  any  previous  precedent 
or  usage.  It  is  an  opinion  which,  if  rightly  formed,  could  only  be 
drawn  from  the  same  premises  from  which  the  Court  and  jury  were 
to  determine  the  cause:  and  therefore  it  is  improper  and  irrelevant 
in  the  mouth  of  a  witness.     *     *     * 

Rule  discharged. 


FOLKES  V.  CHADD  et  al. 
(Court  of  King's  Bencli.  1782.     3  Doug.  157.) 

The  trustees  for  the  preservation  of  Wells  harbor  being  of  opinion, 
that  a  bank  which  had  been  erected  above  twenty  years,  for  the  pur- 
pose of  preventing  the  sea  overflowing  some  meadows  which  had  de- 
scended to  the  plaintiff,  contributed  to  the  choking  and  filling  up  of 
that  harbor,  by  stopping  the  back-water,  threatened  to  cut  it  down,  on 
which  the  plaintiff  applied  to  the  Court  of  Chancery  for  an  injunction. 
The  Court  thereupon  directed  an  action  of  trespass  to  be  brought 
against  the  defendants  for  cutting  the  bank,  directing  the  trespass 
to  be  admitted  at  the  trial ;  and  that  the  only  point  in  dispute  should  be, 
whether  the  mischief  which  the  bank  did  to  the  harbor  was  a  justifi- 
cation for  the  cutting,  that  thus  the  merits  of  the  question  might  be 
decided  by  a  jury.  The  action  was  first  tried  at  the  last  Lent  As- 
sizes for  the  county  of  Norfolk,  when  the  evidence  of  a  Mr.  Milne, 
an  engineer,  was  received,  as  to  what,  in  his  opinion,  was  the  cause 
of  the  decay  of  the  harbor,  and  to  show  that,  in  his  judgment,  the 
bank  was  not  the  occasion  of  it.  The  plaintiff,  on  that  trial,  obtained 
a  verdict,  and  in  Easter  Term  last  a  new  trial  was  granted,  on  the 
ground  that  the  defendants  were  surprised  by  the  doctrine  and  rea- 
soning of  Mr.  Milne,  and  the  parties  were  directed  to  print  and  de- 
liver over  to  the  opposite  side  the  opinions  and  reasonings  of  the 
engineers  whom  they  meant  to  produce  on  the  next  trial,  so  that 
both  sides  might  be  prepared  to  answer  them.  Accordingly  they 
went  to  trial  at  the  last  Summer  Assizes,  when  the  defendants  offered 
evidence  to  show,  that  other  harbors  on  the  same  coast,  similarly  sit- 
uated, where  there  were  no  embankments,  had  begun  to  fi.ll  up  and 
to  be  choked  about  the  same  time  as  Wells  harbor.     They  also  called 


782  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

Mr.  Smeaton,  an  eminent  engineer,  to  show  tliat,  in  his  opinion,  the 
bank  was  not  the  cause  of  tlie  mischief,  and  that  the  cutting  the  bank 
would  not  remove  it.  The  receiving  this  evidence  was  objected  to,  as 
the  inquiring  into  the  site  of  other  harbors  was  introducing  a  multi- 
pHcit>-  of  facts  which  the  parties  were  not  prepared  to  meet.  It  was 
also  objected  that  the  evidence  of  Mr.  Smeaton  was  a  matter  of  opin- 
ion, which  could  be  no  foundation  for  the  verdict  of  the  jury,  which 
was  to  be  built  entirely  on  facts,  and  not  on  opinions.  Gould,  J., 
who  tried  the  cause,  rejected  the  evidence.  Partridge  having  ob- 
tained a  rule  for  a  new  trial,  on  the  ground  that  the  Judge  had  im- 
properly rejected  the  evidence. 

Lord  Mansfield  delivered  the  opinion  of  the  Court. — This  case 
comes  before  the  Court  under  the  same  circumstances  as  if  it  were 
an  indictment  for  the  continuance  of  a  nuisance,  and  it  is  a  question, 
therefore,  whether  the  demolition  of  the  bank  would  contribute  to 
restore  the  harbor.  The  Court  will  not  compel  the  removal  of  a  nui- 
sance where  it  does  not  appear  to  be  a  prejudice,  but  will  set  a  small 
fine.  Nor  would  the  Court  of  Chancery,  in  this  case,  compel  the 
pulling  down  of  a  bank  for  a  damage  which  might  be  compensated 
by  a  shilling. 

The  facts  in  this  case  are  not  disputed.  In  1758  the  bank  was 
erected,  and  soon  after  the  harbor  went  into  decay.  The  question  is, 
to  what  has  this  decay  been  owing?  The  defendant  says,  to  this  bank. 
Why?  Because  it  prevents  the  back-water.  That  is  a  matter  of 
opinion: — the  whole  case  is  a  question  of  opinion,  from  facts  agreed 
upon.  Nobody  can  swear  that  it  was  the  cause ;  nobody  thought  that 
it  would  produce  this  mischief  when  the  bank  was  erected.  The  com- 
missioners themselves  look  on  for  above  twenty  years,  until  a  prop- 
erty has  been  acquired  which  would  be  good  by  the  statute  of  lim- 
itations. It  is  a  matter  of  judgment,  what  has  hurt  the  harbor.  The 
plaintiff  says  that  the  bank  was  not  the  occasion  of  it.  On  the  first 
trial,  the  evidence  of  Mr.  Milne,  who  has  constructed  harbors,  and 
observed  the  effect  of  different  causes  operating  upon  them,  was  re- 
ceived; and  it  never  entered  into  the  head  of  any  man  at  the  bar 
that  it  was  improper ;  nor  did  the  Chief  Baron,  who  tried  the  cause, 
think  so.  On  the  motion  for  the  new  trial,  the  receiving  Mr.  Milne's 
evidence  was  not  objected  to  as  improper ;  but  it  was  moved  for  on 
the  ground  of  that  evidence  being  a  surprise;  and  the  ground  was 
material,  for,  in  matters  of  science,  the  reasonings  of  men  of  science 
can  only  be  answered  by  men  of  science.  The  Court  considering  the 
evidence  as  proper,  directed  the  opinions  to  be  printed,  and  to  be 
exchanged.  Under  the  persuasion  of  this  being  right,  the  parties  go 
down  to  trial  again,  and  Mr.  Smeaton  is  called.  A  confusion  now 
arises  from  a  misapplication  of  terms.  It  is  objected  that  Mr.  Smea- 
ton is  going  to  speak,  not  as  to  facts,^*  but  as  to  opinion.     That  opin- 

»«  Senator  Vprplanck.  in  Mayor,  etc.,  of  City  of  New  York  v.  Pcntz,  24  Wend. 
(N.  y.J  008  (1840):     "♦     •     •     Opinion  is  admitted  wlicn  a  jury  is  Inconipe- 


Sec.  2)  FROM    EXPERT   WITNESSES  783 

ion,  however,  is  deduced  from  facts  which  are  not  disputed — the  sit- 
uation of  banks,  the  course  of  tides  and  of  winds,  and  the  shifting  of 
sands.     His  opinion,   deduced   from   all  these    facts,   is,   that,  mathe- 
matically speaking,  the  bank  may  contribute  to  the  mischief,  but  not 
sensibly.     Mr.  Smeaton  understands  the  construction  of  harbors,  the 
causes  of  their  destruction,  and  how  remedied.     In  matters  of  sci- 
ence no  other  witnesses  can  be  called.     An  instance  frequently  occurs 
in  actions  for  unskilfully  navigating  ships.     The  question  then  depends 
on  the  evidence  of  those  who  understand  such  matters ;    and  when 
such  questions  come  before  me,  I  always  send  for  some  of  the  brethren 
of  the  Trinity  House.     I  cannot  believe  that  where  the  question  is, 
whether  a  defect  arises   from  a  natural   or  an  artificial  cause,  the 
opinions  of  men  of  science  are  not  to  be  received.     Handwriting  is 
proved  every  day  by  opinion ;    and  for  false  evidence  on  such  ques- 
tions a  man  may  be  indicted  for  perjury.     Many  nice  questions  may 
arise  as  to  forgery,  and  as  to  the  impressions  of  seals ;   whether  the 
impression  was  made  from  the  seal  itself,  or  from  an  impression  in 
wax.     In  such  cases  I  cannot  say  that  the  opinion  of  seal-makers  is 
not  to  be  taken.     I  have  myself  received  the  opinion  of  Mr.  Smeaton 
respecting  mills,  as  a  matter  of  science.     The  cause  of  the  decay  of 
the  harbor  is  also  a  matter  of  science,  and  still  more  so,  whether  the 
removal  of  the  bank  can  be  beneficial.     Of  this,  such  men  as  Mr. 
Smeaton   alone   can   judge.     Therefore    we    are   of   opinion   that   his 
judgment,   formed  on   facts,   was  very  proper  evidence.     As  to  the 
evidence  respecting  the  situation  of  other  harbors  on  the  same  coast, 
we  think  that  if   there  were  no  embankments   it  was  admissible  in 
illustration  of  Mr.  Smeaton's  opinion  ;  but  as  to  harbors  in  which  there 
were  embankments,  we  think  it  was  improper,  since  litem  lite  resolvit. 
Rule  absolute. 

tent  to  infer  without  the  aid  of  greater  skill  than  their  own,  as  to  the  prob- 
able existence  of  the  facts  to  be  ascertained,  or  the  likelihood  of  their  occur- 
ring from  the  facts  actually  proved  before  them.  Indeed  it  would  be  more 
logically  accurate  to  say  that  mere  opinion,  even  of  men,  professional  or  ex- 
pert, is  not  admissible  as  such:  but  that  facts  having  been  proved,  men 
skilled  in  such  matters  may  be  admitted  to  prove  the  existence  of  other  more 
general  facts  or  laws  of  nature,  or  the  course  of  business,  as  the  case  may  be, 
so  as  to  enable  the  jury  to  form  an  inference  for  themselves.  Thus  the  ex- 
istence of  certain  appearances  in  the  dead  body  having  been  proved,  the 
chemist  testifies  that  such  appearances  invariably  or  generally  indicate  the 
operation  of  some  powerful  chemical  agent.  His  scientific  opinion  is  in  fact 
his  testimony  to  a  law  of  nature.  All  these  are  testimonies  to  general  facts 
which  the  jury  can  ascertain  in  no  other  way,  and  which  when  proved  afford 
them  the  means  of  drawing  their  own  conclusions  from  the  whole  mass  of 
testimony  taken  together." 


784  OPINIONS  AND  CONCLUSIONS  (Cll.  4 

EASTERN  TRANSPORTATION  LINE  v.  HOPE. 

(Supreme  Court  of  the  United  States,  1877.     95  U.  S.  297,  24  L.  Ed.  477.) 

Air.  Justice  Hunt  ^°  delivered  the  opinion  of  the  court. 

Hope,  the  plaintiff  in  the  Circuit  Court,  sought  to  recover  damages 
for  the  loss  of  his  barge,  which  the  defendants  undertook  to  tow  from 
Jersey  City  to  New  Haven,  through  Long  Island  Sound. 

The  barge  was  lost  before  reaching  her  destination ;  and  the  jury 
to  which  the  case  was  submitted  found  a  verdict  for  the  plaintiff  for 
$2,125.30  damages.  This  was  based  upon  the  theory  of  the  negli- 
gence of  the  defendants  in  the  performance  of  their  duty. 

With  the  general  question  of  negligence  we  have  nothing  to  do. 
The  finding  of  the  jury  is  conclusive  upon  that  subject.  It  is  only 
the  specific  allegations  of  error  in  the  rulings  or  charges  of  the  judge 
at  the  trial  that  we  are  called  upon  to  con<?ider. 

These  allegations  are  as  follows:  It  i^  said  that  the  court  erred, 
first,  in  overruling  the  objection  of  defendant's  counsel  to  the  follow- 
ing question,  asked  of  Patrick  McCarty,  a  witness,  by  the  counsel 
for  the  plaintiff :  "With  your  experience,  would  it  be  safe  or  prudent 
for  a  tug-boat  on  Chesapeake  Bay,  or  any  other  wide  water,  to  tug 
diree  boats  abreast,  with  a  high  wind  ?  " 

The  witness  had  testified  that  for  many  years  he  had  been  the 
captain  of  a  tug-boat,  and  was  familiar  with  the  making  up  of  tows ; 
that  he  was  a  pilot,  and  had  towed  vessels  on  Long  Island  Sound, 
although  he  was  not  familiar  with  the  Sound,  but  that  he  was  familiar 
with  the  waters  of  the  Chesapeake  Bay. 

The  witness  was  an  expert,  and  was  called  and  testified  as  such. 
His  knowledge  and  experience  fairly  entitled  him  to  that  position. 
It  is  permitted  to  ask  questions  of  a  witness  of  this  class  which  can- 
not be  put  to  ordinary  witnesses.  It  is  not  an  objection,  as  is  as- 
sumed, that  he  was  asked  a  question  involving  the  point  to  be  de- 
cided by  the  jury.  As  an  expert,  he  could  properly  aid  the  jury  by 
such  evidence,  although  it  would  not  be  competent  to  be  given  by  an 
ordinary  witness.  It  is  upon  subjects  on  which  the  jury  are  not  as 
well  able  to  judge  for  themselves  a?  is  the  witness  that  an  expert  as 
such  is  expected  to  testify.  Evidence  of  this  character  is  often  given 
upon  subjects  requiring  medical  knowledge  and  science,  but  it  is  by 
no  means  limited  to  that  class  of  cases.  It  is  competent  upon  the 
question  of  the  value  of  land,  Clark  v.  Baird,  9  N.  Y.  183;  Bearss 
v.  Copely.  10  N.  Y.  93;  or  as  to  the  value  of  a  particular  breed  of 
horses,  Harris  v.  Panama  Railroad  Co.,  36  N.  Y.  Super.  Ct.  2)72);  or 
upon  the  value  of  the  professional  services  of  a  lawyer,  Jackson  v. 
New  York  Central  Railroad  Co.,  2  Thomp.  8i  C.  (N.  Y.)  653 ;  or  on 
the  question  of  negligence  in  moving  a  vessel,  Moore  v.  Westervclt, 

«6  Stulc'iuenL  ;uid  luirl  of  ((piiiiun  uiuittcd. 


Sec.  2)  FKOM   EXPERT   WITNESSES  7& 


22  N.  Y.  Super.  Ct.  558;  or  on  the  necessity  of  a  jettison,  Price  v. 
Hartshorn,  44  N.  Y.  94,  4  Am.  Rep.  645.  In  Walsh  v.  Washington 
Marine  Insurance  Co.,  32  N.  Y.  427,  it  was  decided  that  the  testi- 
mony of  experienced  navigators  on  (|Ucstions  involving  nautical  skill 
was  admissible.  The  witness  in  that  case  was  asked  to  what  cause 
the  loss  of  the  vessel  was  attributable,  which  was  the  point  to  be 
decided  by  the  jury.  The  court  sustained  the  admission  of  the  evi- 
dence, using  this  language : 

"We  entertain  no  doubt  that  those  who  are  accustomed  to  the  re- 
sponsibility of  command  and  whose  lives  are  spent  on  the  ocean,  are 
qualified  as  experts  to  prove  the  practical  effect  of  cross-seas  and  heavy 
swells,  shifting  winds  and  sudden  squalls." 

The  books  give  a  great  variety  of  cases  in  which  evidence  of  this 
character  is  admissible,  and  we  have  no  doubt  of  the  competency  of 
the  evidence  to  which  this  objection  is  made.     *     *     ♦ 

Affirmed.^' 


SPOKANE  &  I.  E.  R.  CO.  v.  UNITED  STATES. 

(Supreme  Court  of  tbe  United  States,  1916.     241  U.  S.  344,  36  Sup.  Ct.  668, 

60  L.  Ed.  1037.) 

Mr.  Chief  Justice  White  ^^  delivered  the  opinion  of  the  court : 
The  United  States  brought  this  suit  against  the  railroad  company 
to  recover  penalties  for  fifteen  alleged  violations  of  the  safety  appliance 
act.  The  violations  consisted  in  hauling  in  interstate  commerce  on 
October  23,  1911,  twelve  cars  which  were  not  provided  with  hand  holds 
or  grab  irons  at  the  ends,  as  required  by  the  act,  and  three  cars  which 
were  not  equipped  with  automatic  couplers.     *     *     * 

The  fifteen  cars  here  in  question  were  passenger  cars,  and  on  the 
day  named  were  used  in  passenger  trains  which  were  run  from  the  sta- 
tion in  Spokane  to  the  city  limits,  and  thence  over  the  company's  right 
of  way  to  Coeur  d'Alene.  Twelve  of  them  (those  which  it  was  charg- 
ed were  not  equipped  at  the  ends  with  grab  irons  or  hand  holds)  were 
cars  regularly  used  on  the  interurban  lines,  and  were  rounded  at  the 
ends  and  equipped  with  radial  couplers  to  enable  the  trains  to  make 
sharp  turns.  As  the  swinging  of  these  couplers  from  one  side  to  the 
other  across  the  ends  of  the  cars  would  break  off  grab  irons  of  the  type 
ordinarily  used  on  the  ends  of  cars,  they  were  not  used.  It  was  claim- 
ed, however,  that  the  requirements  of  the  safety  appliance  act  with  re- 
spect to  hand  holds  or  grab  irons  were  in  substance  complied  with  by 
a  different,  and  what  was  asserted  to  be  an  equivalent,  appliance ;   that 

3  0  And  so  in  Texas  &  P.  R.  Co.  v.  Watson,  190  U.  S,  287,  23  Sup.  Ct.  6S1,  47 
L.  Ed.  1057  (1903),  operation  of  a  locomotive. 
8  7  Part  of  opinion  omitted. 

IliNT.Ev.— 50 


786  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

is,  openings  in  the  top  of  the  buffer  or  sill  extending  across  the  ends 
of  the  cars,  just  above  the  couplers.  To  support  this  claim  the  com- 
pany offered  testimony  of  experienced  railroad  men  to  the  effect  "that 
the  hand  holds  or  grab  irons  in  the  buffers  or  sills  of  such  cars  were 
sufficient  to  protect  men  who  might  be  required  to  go  between  the  cars 
in  coupling  or  otherwise  handling  them,  that  they  were  sufficient  to 
accomplish  purposes  intended  to  be  accomplished  by  the  provisions 
of  the  safety  appliance  act  requiring  hand  holds  or  grab  irons  to  be 
placed  upon  the  ends  of  cars  used  in  interstate  commerce,  and  that 
they  were  better  than  those  commonly  used  upon  cars  engaged  in  in- 
terstate commerce."  The  United  States  objected  to  the  introduction  of 
the  testimony,  and  it  was  excluded  on  the  ground  "that  it  was  not  a 
question  for  expert  testimony,  but  was  a  matter  of  common  knowl- 
edge." During  the  trial  (at  whose  request  it  does  not  appear)  the  jury 
were  taken  to  inspect  the  openings  in  some  of  the  cars.     *     *     * 

It  is  contended  that  error  was  committed  in  rejecting  the  testimony 
of  experts  oft'ered  by  the  railroad  company  as  to  the  protection  afforded 
to  employees  by  the  openings  in  the  buft'ers  at  the  ends  of  the  twelve 
cars.  Without  stopping  to  point  out  the  inappositeness  of  the  many 
authorities  cited  in  support  of  the  contention,  we  think  the  court  was 
clearly  right  in  holding  that  the  question  was  not  one  for  experts,  and 
that  the  jury,  after  hearing  the  testimony  and  inspecting  the  openings, 
were  competent  to  determine  the  issue,  particularly  in  view  of  the  full 
and  clear  instruction  given  on  the  subject,  concerning  which  no  com- 
plaint is  made. 

Affirmed. ^^ 

Mr.  Justice  McReynolds  took  no  part  in  the  consideration  and 
decision  of  this  case. 


KEMPSEY  V.  McGINNISS. 

(Supreme  Court  of  Michigan,  1870.     21  Mich.  123.) 

The  questions  for  review  in  this  court  arise  upon  the  rulings  of  the 
circuit  judge  on  the  admission  and  rejection  of  evidence  as  to  the  tes- 
tamentary capacity  of  the  testator. 

Dr.  William  Mottram  was  called  by  the  appellant  and  contestant, 
and  after  testifying  to  facts  within  his  personal  observation,  as  to  the 
condition  of  the  testator,  stated  that  he  heard  Dr.  Abbott  testify,  and 
recollected  the  description  he  gave  of  Patterson,  and  that  he  heard 
Eckard  testify,  except  a  part  of  the  cross-examination.  He  was  then 
asked : 

Question.  "Assuming  the  testimony  of  the  witness  as  true  in  refer- 
ence to  the  condition  of  Patterson  during  the  days  they  mentioned, 

•  8  See  good  exposition  to  the  same  effect  in  Hamann  v.  Mihvaulioe  Bridge 
Co.,  127  Wis.  n.'iO,  10(3  N.  W.  10S1,  7  Ann.  C'as.  458  (190(5),  excluding  opinion 
that  It  was  daiigurou-s  to  unload  heavy  machinery  in  a  certain  way. 


Sec.  2)  FROM  EXPERT  WITNESSES  787 

what,  in  your  opinion,  was  his  capacity  to  make  a  will,  or  as  to  his  be- 
ing of  sound  and  disposing  mind  ?" 

This  question  was  objected  to  by  the  appellees  as  incompetent  and 
irrelevant.  The  court  sustained  the  objection.  To  which  ruling  and 
decision  the  counsel  for  appellant  duly  excepted. 

Question.  "Assuming  the  testimony  of  Eckard  in  regard  to  the  con- 
ditior  of  Patterson  during  the  latter  part  of  Thursday  and  Thursday 
night,  and  Friday  and  Friday  night,  including  his  conversation  and 
what  he  did,  to  be  true ;  and  assuming  the  testimony  of  Dr.  Abbott  in 
regard  to  his  condition  and  symptoms  from  Friday  morning  to  the  time 
you  went  there,  to  be  true,  including  your  own  observation  on  Satur- 
day, what  is  your  opinion  as  to  Patterson  being  of  sound  disposing 
mind  and  memory  on  Friday  morning,  so  as  to  be  able  to  transact 
business  continuously  and  understandingly  from  nine  till  eleven 
o'clock?" 

This  question  was  objected  to  by  the  counsel  for  appellees  on  the 
ground  of  irrelevancy  and  incompetency,  and  it  was  argued  that  the 
answer  to  the  question  would  take  the  question  at  issue  from  the  jury, 
and  that  an  expert  cannot  be  allowed  to  give  an  opinion  upon  facts 
that  were  not  under  his  own  observation.  The  court  sustained  the 
objection. ^^ 

ChrisTiancy,  J,  *  *  *  No  controversy  arises  upon  the  ques- 
tions touching  mental  capacity  put  to  any  of  the  witnesses  testifying 
from  their  personal  observation  alone.  But  the  contestants  offered  in 
evidence  the  opinions  of  several  professional  witnesses  who  had  not 
seen  the  testator  during  his  illness ;  and  upon  the  proper  mode  of  con- 
ducting such  an  examination  some  of  the  main  questions  in  the  case 
arise. 

We  consider  it  too  well  settled  to  require  the  citation  of  authorities, 
that,  upon  questions  of  this  kind,  the  opinions  of  men  skilled  in  that 
particular  science,  in  other  words,  physicians,  are  admissible  in  evi- 
dence, though  not  founded  upon  their  own  personal  observation  of  the 
facts  of  the  particular  case.  But,  if  the  question  had  not  already 
been  closed  by  authority,  I  should  be  much  inclined  to  doubt  the  pro- 
priety of  receiving  the  opinions  of  merely  medical  witnesses,  under 
such  circumstances,  to  anything  more  than  physical  facts,  such  as  the 
physical  effects  of  the  disease ;  as  I  think  it  may  well  be  doubted  wheth- 
er the  skill  of  ordinary  physicians  in  metaphysics,  or  their  judgment 
upon  merely  mental  manifestations,  has  been  shown  by  experience  to 
be  of  any  greater  value  than  that  of  intelligent  men  in  other  depart- 
ments of  life.  The  question,  however,  seems  to  be  settled  in  their 
favor  upon  authority. 

But  in  the  case  of  such  professional  witnesses,  as  well  as  in  that  of 
unprofessional  witnesses — who  are  allowed  to  give  their  opinions  only 
from  personal  observation — the  facts  upon  which  the  opinion  is  found- 

89  statement  condensed  and  part  of  opinion  omitted. 


788  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

ed  must  be  stated,  and  the  jury  must  be  left  to  determine  whether  the 
facts  stated,  as  well  as  the  opinions  based  upon  them,  are  true  or  false. 
And  it  is  obvious  that  when  such  opinions  are  given  without  personal 
knowledge  or  observation,  such  opinions  must  be  based  eitlier  upon 
facts  observed  and  stated  by  other  witnesses  who  ki^ew  them,  or 
upon  a  state  of  facts  assumed  for  the  purpose  as  a  hypothetical  case, 
which  the  jury  may  find  from  the  evidence. 

But  as  the  jury  are  to  pass  upon  the  credibility  of  all  witnesses  and 
the  weight  of  the  evidence,  and  to  determine  all  matters  of  fact  in- 
volved in  the  case,  no  witness  can  have  the  right  to  usurp  the  power  of 
the  jury,  or  to  determine  any  of  these  questions  for  them,  nor  even  to 
give  an  opinion  upon  the  weight  or  credibility  of  any  of  the  testimony. 
No  question,  therefore,  can  be  put  to  the  witness  which  calls  upon  or 
allows  him  to  decide  upon  the  truth  or  falsehood  of  any  evidence  in 
the  case.  If,  therefore,  there  be  any  conflict  between  the  witnesses  as 
to  the  facts  upon  which  a  professional  opinion  is  sought,  it  is  mani- 
fest the  professional  witness  cannot,  though  he  has  heard  the  testi- 
mony, be  asked  to  base  his  opinion  upon  that  testimony,  upon  the  hy- 
pothesis of  its  truth ;  because,  to  reach  his  conclusion,  he  must  neces- 
sarily pass  upon  the  credibility  of  the  witnesses  and  the  weight  of  the 
evidence.  In  the  case  of  any  such  conflict,  therefore,  the  only  proper 
mode  of  interrogating  the  professional  witness,  is  by  stating  and  enu- 
merating in  the  question  itself,  the  facts  to  be  assumed.  And  when  his 
opinion  is  asked  upon  a  case  (such  as  the  physical  or  mental  effects  of 
a  disease  upon  a  certain  person,  under  certain  circumstances  and*  ex- 
hibiting certain  symptoms),  as  stated  by  other  witnesses,  when  there  is 
no  conflict,  he  is  to  assume,  without  undertaking  to  decide,  the  truth 
of  their  statements,  and  to  base  his  opinion  only  upon  the  facts  thus 
assumed,  leaving  the  jury  to  determine  whether  such  assumed  facts 
are  true  or  false. 

Now,  it  is  manifest  that  this  is  but  giving  an  opinion  upon  a  hy- 
pothetical case,  as  much  as  if  the  facts  testified  to  by  the  other  wit- 
nesses had  been  expressly  and  hypothetically  assumed  and  enumerated 
in  the  question  itself.  And  it  would  seem,  from  the  nature  of  the  case, 
to  be  impracticable  to  frame  any  proper  question  for  eliciting  the  opin- 
ion, which  is  not  in  the  nature  of  a  hypothetical  case,  being  based  upon 
an  assumed  state  of  facts  which  the  jury  may,  or  may  not,  find  to  be 
true.  And  as  a  collection  or  state  of  facts  assumed,  whether  fevi'  or 
many,  constitute  in  the  aggregate,  the  basis  on  which  the  opinion  is 
asked;  if  it  does  not  appear  that  the  opinion  would  be  the  same,  with 
any   of   those  facts  omitted,   it  necessarily   follows   that,   if   the   jury 

should  negative  or  fail  to  find  any  one  of  the  assumed  facts,  the  opinion 
expressed  cannot  be  treated  as  evidence,  but  must  be  rejected  by  the 

jury. 

From  these  considemtions  it  necessarily  follows  that  the  jury  should 

know  just  what   facts  are  assumed,  and  enter  into  the  collection  or 

state  of  facts  upon  which  the  witnesses'  opinions  are  based.    Otherwise 


Sec.  2)  FROM   EXPERT   WITNESSES  789 

they  cannot  know  whether  they  ought  to  treat  the  opinions  as  evidence 
at  all;  since  they  can  form  no  opinion  whether  such  assumed  facts, 
or  the  opinions  based  upon  them,  are  true  or  false.*" 

If  one  or  more  witnesses  have  stated,  in  the  presence  and  hearing 
of  the  professional  witness,  the  facts  observed  (such  as  the  symptoms 
of  the  person  in  question,  and  his  various  physical  and  mental  mani- 
festations), and  the  witness  is  asked  his  opinion  upon  the  hypothesis 
that  all  the  facts  stated  by  the  witness  or  witnesses  named  are  true, 
the  jury,  having  heard  all  the  evidence  alluded  to,  know  what  facts 
are  assumed  by  the  witness  in  giving  his  opinion.  But  if  the  witness 
be  asked  his  opinion  of  a  case,  assuming  the  testimony  of  certain  speci- 
fied witnesses  to  be  true,  and  it  appears  that  he  did  not  hear  the  whole 
of  their  testimony,  and  it  does  not  definitely  appear  what  facts  stated 
by  them  he  has  heard,  and  what  he  did  not  hear,  the  jury  cannot 
know  upon  what  state  of  facts  he  forms  his  opinion,  nor  whether  the 
facts  he  has  assumed  are  true,  nor  whether  his  opinion  would  have 
been  the  same  if  he  had  heard  the  whole ;  and  his  opinion  cannot,  there- 
fore, safely  be  received  as  evidence. 

This  disposes  of  two  questions  put  to  Dr.  Mottram,  the  rejection  of 
which  was  excepted  to  by  the  contestant ;  both  of  which  were  based 
upon  the  assumed  truth  of  the  testimony  of  Eckard  and  Dr.  Abbott. 
It  appears  from  the  statement  of  Dr.  Mottram  himself  that  he  did  not 
hear  the  whole  of  Eckard's  testimony,  and  it  does  not  appear  what  par- 
ticular facts  stated  by  him  he  did,  and  what  he  did  not  hear. 

It  is  also  necessary,  in  questions  of  this  kind,  to  bear  in  mind  the 
respective  provinces  of  the  court,  the  jury  and  the  witnesses.  The 
court  are  to  decide  all  questions  of  law,  the  jury  those  of  fact.  Wit- 
nesses are  sworn,  not  to  enlighten  the  court  upon  matters  of  law,  but 
the  jury  (and  to  some  extent  the  court)  upon  matters  of  fact.  And,  in 
this  particular  class  of  questions,  the  professional  witness  is  allowed 
to  state  his  opinions  as  inferences  of  fact,  notwithstanding  that,  in  do- 
ing this,  he  gives  his  opinion  upon  the  existence,  or  non-existence,  of 
the  same  resultant  fact  or  facts  which  the  jury  are  to  find  by  their 
verdict.  (Though  some  authorities  require  the  questions  to  be  so  fram- 
ed as  to  avoid  even  this  result.  See,  for  instance,  Rex  v.  Wright,  R. 
and  R.  Cr.  Cas.,  456;  Sills  v.  Brown,  9  C.  and  P.,  601;  Farar  v. 
Warfield,  8  Mart.,  N.  S.  (La.)  695,  696;  Jameson  v.  Drinkald,  12 
Moore,  148;  Earl  of  Farrar's  Case,  19  Howell,  943;  Regina  v.  Fran- 
cis, 4  Cox,  C.  C.  57.    And  see  4  Cox,  451. 

But  the  jury  are  bound  to  take  the  law  from  the  court,  and  to  find 

40  And  so  in  Com.  v.  Rogers,  7  Mete.  (Mass.)  500,  41  Am.  Dec.  458  (1S44) ; 
Woodbury  v.  Obear,  7  Gray  (Mass.)  467  (1856). 

It  is  doubtful  whether  it  is  ever  proper  to  base  a  question  on  the  assumed 
trutli  of  a  large  amount  of  testimony,  without  reciting  the  substance  of  it. 
People  V.  McElvaine,  121  N.  Y.  250,  24  N.  E.  465,  18  Am.  St.  Rep.  820  (ISOO). 
The  state  of  facts  assumed  must  obviously  be  such  as  the  jury  might  find  to 
be  true,  though  the  court  may  relax  the  rule  on  the  cross-examination  of  an 
iidver.se  expert.     Railway  v.  Fishman,  160  111.  106,  4S  N.  E.  447  (1897). 


790  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

the  facts  from  the  evidence.  By  a  special  verdict,  which  they  may  al- 
ways render,  they  merely  find  the  facts,  and  leave  tlie  court  to  apply 
the  law ;  by  a  general  verdict,  which  they  are  not  bound  to  find,  they 
merely  apply  the  law  given  them  by  the  court  to  the  facts  found 
by  themselves — giving,  in  this  way,  the  combined  result  of  law  and  fact. 

To  what  extent  and  in  what  manner  the  mind  of  the  testator  was 
aflfected  by  the  disease,  or  what  was  his  mental  condition,  was  a  ques- 
tion of  fact,  upon  which  it  was  competent  for  the  professional  witness- 
es to  express  their  opinions.  But  what  degree  of  mental  capacity  is 
necessary  to  enable  a  testator  to  make  a  valid  will,  to  what  extent  and 
with  what  degree  of  perfection  he  must  understand  the  will  and  the 
persons  and  property  affected  by  it,  or  to  what  extent  his  mind  must  be 
impaired  to  render  him  incapable,  is  a  question  of  law  exclusively  for 
the  court,  and  with  which  the  witnesses  have  nothing  to  do.  And  it 
is  a  question  of  law  of  no  little  difficulty,  which  calls  for  the  highest 
skill  of  competent  jurists,  and  upon  which  the  ablest  courts  are  not 
entirely  agreed.     *     *     * 

It  may  be  urged  in  reply  to  this,  that  the  confusion  arising  from  al- 
lowing witnesses  to  answer  questions  involving  their  opinion  of  the 
legal  capacity  of  a  party  to  make  a  will,  may  be  cleared  up  by  a  cross- 
examination,  ascertaining  what,  in  his  opinion,  constitutes  such  ca- 
pacity, and  that  any  error  in  this  respect  may  be  corrected  by  the  court 
in  his  charge,  or  otherwise.  But  it  seems  to  be  much  wiser,  wherever 
it  is  practicable,  to  exclude  the  improper  question,  and  avoid  the  con- 
fusion altogether,  than  to  admit  it  first,  and  then  undertake  to  get 
rid  of  its  effects,  an  experiment  which  is  never  wholly  successful. 

I  am  aware  there  are  many  cases  in  which,  upon  similar  questions,^ 
interrogatories  have  been  allowed  to  be  put  to  witnesses  for  their 
opinion,  involving,  as  well  their  opinion  upon  the  question  of  law 
Hegal  capacity),  as  upon  the  question  of  fact  (what  the  capacity  was). 
In  most  of  them,  however,  the  point  I  am  discussing  was  not  directly 
raised.  And,  upon  principle,  I  can  see  no  ground  upon  which  such  a 
course  can  be  justified,  when  the  nature  of  the  case  does  not  render  it 
necessary,  and  it  can,  as  in  the  present  case,  be  just  as  well  avoid- 
ed.    *     *     * 

Reversed  (on  other  grounds). 


PEOPLE  V.  YOUNGS. 

(Court  of  Appofils  of  New  York,  189G.     151  N.  Y.  210,  4.^  N.  E.  400.) 

O'Brien,  J.*^  The  defendant  was  convicted  of  murder  in  the  first 
degree,  and  appe<'ils  to  this  court  for  a  new  trial.  There  is  no  dispute 
whatever  with  respect  to  the  fact  that  on  the  14th  day  of  D'ccember, 
1895,  at  the  place  charged  in  the  indictment,  the  defendant  shot  and 

«i  Part  of  opinion  omitted. 


Sec.  2)  FROM   EXPERT   WITNESSES  791 

killed  his  wife  with  a  revolver,  having  -deliberately  fired  two  shots 
at  her,  both  of  which  took  effect,  and  one  of  them  inflicting  a  mortal 
wound  producing  death.  The  facts  and  circumstances  attending  the 
commission  of  the  act  are  fully  disclosed  by  the  record,  but  it  is  not 
necessary  to  repeat  them  here  at  much  length.  The  defense  was  in- 
sanity, or  at  least  the  existence,  at  the  time  of  the  commission  of  the 
act  by  the  defendant,  of  such  mental  disturbance  or  defect  of  reason 
as  to  render  him  irresponsible  for  his  act.     *     *     * 

It  appears  by  the  record  that  certain  medical  experts  were  called  as 
witnesses  by  the  prosecution,  who  testified  that  they  had  made  a  per- 
sonal examination  of  the  defendant  with  reference  to  his  sanity,  and 
were  then  asked  whether,  in  their  opinion,  he  was  sane  at  the  time 
of  such  examination.  These  questions  were  objected  to  by  the  defense 
as  incompetent,  but  the  objection  was  overruled,  and  there  was  an  ex- 
ception. It  is  now  urged  that  these  experts  should  not  have  been  per- 
mitted to  express  an  opinion  without  first  stating  the  facts  upon  which 
such  opinion  was  based.  The  testimony  of  experts  is  an  exception  to 
the  general  rule  which  requires  that  the  witness  must  state  facts  and 
not  express  opinions.  In  such  cases  the  opinion  of  the  witness  may  be 
based  upon  facts  so  exclusively  withfn  the  domain  of  scientific  or  pro- 
fessional knowledge  that  tlieir  significance  or  force  cannot  be  per- 
ceived by  the  jury,  and  it  is  because  the  facts  are  of  such  a  character 
that  they  cannot  be  weighed  or  understood  by  the  jury  that  the  witness 
is  permitted  to  give  an  opinion  as  to  what  they  do  or  do  not  indicate. 
In  such  cases  it  is  the  opinion  of  the  witness  that  is  supposed  to  possess 
peculiar  value  for  the  information  of  the  jury. 

Of  course,  all  the  facts  or  symptoms  upon  which  the  opinion  is 
based  may  be  drawn  out  also  either  upon  the  direct  or  cross-examina- 
tions. It  is  undoubtedly  the  better  practice  to  require  the  witness  to 
state  the  circumstances  of  his  examination,  and  the  facts,  symptoms,  or 
indications  upon  which  his  conclusion  is  based,  before  giving  the  opin- 
ion to  the  jury.  But  we  think  that  it  is  not  legal  error  to  permit  a 
medical  expert,  who  has  made  a  personal  examination  of  a  patient  for 
the  purpose  of  determining  his  mental  condition,  to  give  his  opinion  as 
to  that  condition  at  the  time  of  the  examination,  without,  in  the  first 
instance,  disclosing  the  particular  facts  upon  which  the  opinion  is  bas- 
ed. The  party  calling  the  witness  may  undoubtedly  prove  the  facts 
upon  which  the  opinion  is  based,  and  as  we  have  already  observed, 
that  is  doubtless  the  safer  practice.  It  may  also  be  true  that  the  court, 
in  the  exercise  of  a  sound  discretion,  may  require  the  witness  to  state 
the  facts  before  expressing  the  opinion,  and  in  all  cases  the  opposite 
party  has  the  right  to  elicit  the  facts  upqn  cross-examination.  But  the 
precipe  question  here  is  whether  the  court  committed  an  error  in  per- 
mitting the  witness  to  give  the  opinion  before  the  facts  upon  which  it 
was  founded  were  all  disclosed,  and  we  think  that,  when  it  is  shown 
that  a  medical  expert  has  made  the  proper  professional  examination 
of  the  patient  in  order  to  ascertain  the  existence  of  some  physical  or 


792  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

/nental  disease,  he  is  then  quaUfied  to  express  an  opinion  on  the  sub- 
ject, though  he  may  not  yet  have  stated  tlie  scientitic  facts  or  external 
symptoms  upon  which  it  is  based.  People  v.  Kemmler,  119-  N.  Y.  580, 
24  N.  E.  9;  People  v.  Taylor,  13S  N.  Y.  398,  34  N.  E.  275;  People  v. 
Hoch,  150  N.  Y.  291,  44  N.  E.  "^Ki.  *  *  * 
Affirmed.** 


KIMBROUGH  v.  CHICAGO  CITY  RY.  CO. 
(Supreme  Court  of  Illinois,  191G.     272  111.  71,  111  N.  K  499.) 

Duncan,  J."  An  action  on  the  case  for  personal  injuries  alleged 
to  have  been  sustained  September  5,  1907,  was  brought  by  Marie  A. 
Fellows-Kimbrough  against  the  Chicago  City  Railway  Company, 
plaintiff  in  error,  in  the  superior  court  of  Cook  county.  On  the  first 
trial,  in  February,  1909,  defendant  in  error  claimed  that  a  malignant 
cancer  was  developing  in  her  breast  as  a  result  of  her  injuries,  and 
the  jury  awarded  $7,000  as  damages.  The  trial  judge  required  a  re- 
mittitur of  $3,000  and  entered  judgment  for  $4,000.  That  judgment 
was  reversed  by  the  Appellate  Court  for  the  First  District  because  of 
the  improper  conduct  of  one  of  the  attorneys  for  defendant  in  error. 
On  the  second  trial,  in  March,  1913,  her  physicians  testified,  in  sub- 
stance, that  the  lump  in  her  breast,  which  they  had  in  the  first  trial 
testified  was  in  their  opinion  a  cancer,  was  a  fatty  tumor  about  the 
size  of  a  hen's  ag^,  the  removal  of  which,  as  shown  by  the  evidence,, 
was  a  simple  matter  that  would  not  be  followed  with  serious  conse- 
quences. The  only  other  ailment  claimed  by  defendant  in  error  on 
the  second  trial  to  be  still  enduring  as  a  result  of  her  injuries  was  a 
traumatic  neurasthenia,  which  plaintiff  in  error  insisted  was  the.  re- 
sult of  a  series  of  troubles  that  she  experienced  as  the  result  of  three 
marriages  and  two  divorces  and  two  long  spells  of  sickness  and  con- 
finement in  a  hospital,  during  which  time  she  underwent  two  severe 
surgical  operations.  On  the  second  trial  the  jury  returned  a  verdict 
for  $3,750  damages,  upon  which  the  court  entered  judgment.  The 
Appellate  Court  affirmed  that  judgment,  and  a  v/rit  of  certiorari  was 
granted  by  this  court  for  the  purpose  of  reviewing  the  judgment  of 
the  Appellate  Court.     *     *     * 

It  is  first  argued  by  plaintiff  in  error  that  the  trial  court  erred  in 
permitting  purely  speculative  evidence  as  to  the  future  consequences 
of  the  tumor  in  the  breast  of  defendant  in  error  to  be  considered  by 
the  jury.  The  particular  evidence  in  question  appears  in  the 
*  *  *  redirect  examination  of  defendant  in  error's  witness.  Dr. 
Mowery,  which  appears  in  the  record  as  follows ;     *     *     * 

*2  And  so  In  I'oople  v.  Faber,  199  N.  Y.  2;jG,  92  N.  E.  071,  20  Ann.  Cas.  879 
(1910J. 

But  SCO  Oliver  v.  North  End  St.  Ry.  Co.,  170  Mass."  222,  49  N.  E.  117  (189S). 

<•■  Part  of  (ijiinlon  omitted. 


Sec.  2)  FROM   EXPERT   WITNESSES  793 

Q.  "Doctor,  you  say,  as  I  understand  you,  that  the  seed  of  cancer, 
or  the  conditions  that  cause  a  cancer,  may  lie  dormant  for  a  number 
of  years  before  they  develop  into  cancer.  How  long  would  that  pe- 
riod of  dormancy  be?"  A.  "The  dormancy  may  extend  over  years. 
A  little  lump  may  be  in  the  breast,  and  lie  there  for  years  dormant, 
and  become  cancer  after  a  number  of  years." 

The  last  question  and  answer  were  also  objected  to  by  plaintiff  in 
error  as  speculative  evidence,  and  that  it  was  not  redirect  examina- 
tion, but  the  objections  were  overruled,  and  proper  exceptions  pre- 
served. It  is  clear  that  the  evidence  thus  elicited  and  objected  to  by 
plaintiff  in  error  is  purely  speculative  evidence — that  is,  the  conjec- 
ture of  the  witness  as  to  consequences  that  are  mere  possibilities — and 
was  therefore  incompetent. 

The  witness  admitted  in  his  examination  that  defendant  in  error  did 
not  have  a  cancer  at  that  time  and  had  not  had  one,  and  that  he  was 
mistaken  when- he  testified  on  the  former  trial  that  the  lump  in  ques- 
tion was  a  cancer.  The  examination  of  Dr.  Mowery  by  plaintiff  in 
error,  as  above  shown,  was  for  the  purpose  of  getting  him  to  admit 
that  he  was  so  mistaken.  His  answer  to  the  question  of  plaintiff  in 
error,  and  to  which  it  objected,  was  not  responsive  to  the  question,  as 
insisted  by  defendant  in  error,  and  should  have  been  excluded  by  the 
court.  Plaintiff  in  error  was  inquiring  as  to  what  would  have  been 
the  result  if  defendant  in  error  had  really  had  a  cancer  four  years  be- 
fore, as  the  witness  had  testified,  and  the  answer  was,  in  substance, 
that  the  tumor  might  lie  dormant  for  a  number  of  years  and  then 
develop  into  a  cancer.  For  the  reason  that  the  answer  was  not  re- 
sponsive the  court  also  committed  error  in  allowing  the  defendant  in 
error  to  repeat  the  objectionable  evidence  on  redirect  examination, 
and  the  jury  were  thus  permitted  to  consider  the  same  in  fixing  the 
amount  of  her  damages.  Mere  surmise  or  conjecture  cannot  be  re- 
garded as  proof  of  an  existing  fact  or  of  a  future  condition  that  will 
result.  Expert  witnesses  can  only  testify  or  give  their  opinion  as  to 
future  consequences  that  are  shown  to  be  reasonably  certain  to  fol- 
low. Lauth  v.  Chicago  Union  Traction  Co.,  244  111.  244,  91  N.  E. 
431 ;  Lyons  v.  Chicago  City  Railway  Co.,  258  111.  75,  101  N.  E.  211. 

The  court  also  erred  in  overruling  plaintiff  in  error's  objections  to 
the  evidence  of  Dr.  Adams  in  his  examination  in  chief  by  defendant 
in  error's  counsel,  as  shown  by  the  following  questions  and  answers, 
to  wit:  O.  "Doctor,  referring  to  the  supposititious  or  hypothetical 
patient  and  taking  into  account  the  elements  of  the  hypothesis,  have 
you  an  opinion  as  a  medical  man,  and  based  upon  reasonable  certain- 
ty, as  to  what  was  the  cause  of  the  neurasthenia  and  the  tumor  in  the 
hypothetical  patient?"  A.  "Yes,  sir."  O.  "What  is  your  opinion 
as  to  the  connection  between  this  disease  and  the  tumor  or  growth  in 
the  breast?"  A.  "That  the  tumor  resulted  from  the  bruise — the  in- 
jury to  the  breast.  The  neurasthenia  resulted  from  the  shock  of  the 
accident,  and  was  kept  alive  by  the  breast  condition." 


794  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

One  of  the  objections  of  the  plaintiff  in  error  to  the  foregoing  ques- 
tions was  that  they  were  improper,  as  invading  the  province  of  the 
jury-  and  calling  for  an  opinion  on  an  ultimate  fact.  Where  there  is  a 
conflict  in  the  evidence,  as  in  this  case,  as  to  whether  or  not  the  party 
suing  was  injured  in  the  manner  charged,  it  is  not  competent  for  wit- 
nesses, even  though  testifying  as  experts,  to  give  their  opinions  on  the 
very  fact  the  jury  is  to  determine.  Whether  or  not  the  collision  or 
accident  in  this  case  caused  traumatic  neurasthenia  in  the  defendant 
in  error,  or  caused  the  tumor  in  her  breast,  are  ultimate  facts  upon 
which  the  jury  must  make  their  findings.  It  is  no  more  proper,  le- 
gally, for  physicians  to  settle  those  questions  for  the  jury  by  their  di- 
rect answers  than  it  would  be  for  a  motorman  of  another  street  car 
company  to  settle  the  question  of  negligence  by  testifying  in  broad 
terms  that  the  plaintiff  in  error  was  guilty  of  negligence  because  its 
motorman  failed  to  cut  off  the  power  by  use  of  the  canopy  switch  in 
time  to  prevent  the  collision. 

The  rule  in  such  cases  is  not  different  where  hypothetical  questions 
are  put  to  the  expert  witnesses.  A  physician  may  be  asked  whether 
the  facts  stated  in  a  hypothetical  question  are  sufficient,  from  a  medi- 
cal or  surgical  point  of  view,  to  cause  and  bring  about  a  certain  con- 
dition or  malady,  or  he  may  be  asked  whether  or  not  a  given  condi- 
tion or  malady  ot  a  person  may  or  could  result  from  and  be  caused  by 
the  facts  stated  in  the  hypothetical  question;  but  he  should  not  be 
asked  whether  or  not  such  facts  did  cause  and  bring  about  such  con- 
dition or  malady.  Illinois  Central  Railroad  Co.  v.  Smith,  208  111.  608, 
70  N.  E.  628 ;  Keefe  v.  Armour  &  Co.,  258  111.  28,  101  N.  E.  252,  Ann. 
Cas.  1914B,  188;  People  v.  Schultz.  260  111.  35,  102  N.  E.  1045;  Cas- 
tanie  v.  United  Railways  Co.,  249  Mo.  195,  155  S.  W.  38,  L.  R.  A. 
1915A,  1056;  Sever  v.  M.  &  St.  Louis  Railroad  Co.,  156  Iowa,  664, 
137  N.  W.  937,  44  L.  R.  A.  (N.  S.)  1200.  In  cases  where  there  is  no 
dispute  as  to  the  manner  and  cause  of  the  injury,  and  no  dispute  that 
there  was  an  injury  sustained  by  reason  of  the  acts  of  which  com- 
plaint is  made,  this  court  has  held  that  a  physician  may  then  directly 
testify  that  a  later  malady  was  or  was  not  caused  by  the  accident  or 
original  injury,  upon  the  same  principle  that  he  may  testify  that  death 
resulted  from  a  certain  wound.  Schlauder  v.  Chicago  &  Southern 
Traction  Co.,  253  111.  154,  97  N.  E.  233;  City  of  Chicago  v.  Didier, 
227  111.  571,  81  N.  E.  698. 

Dr.  Olof  Steffenson  was  permitted,  over  the  same  objections  of 
plaintiff  in  error,  in  answer  to  a  similar  hypothetical  question  by  de- 
fendant in  error's  counsel,  to  testify  that  the  cause  of  the  neuras- 
thenia, or  of  the  condition  found  in  the  hypothetical  patient,  was  due 
to  the  accident.  ** 

**  See,  also,  Glasgow  v.  MetropoUtnn  St.  Ry.  Co.,  191  Mo.  347,  S9  S.  W.  915 
(1905). 


Sec.  2)  FROM   EXPERT   WITNESSES  795 

The  errors  committed  by  the  court  in  the  admission  of  evidence,  as 
aforesaid,  must  be  regarded  as  very  prejudicial  to  plaintiff  in  error. 
There  is  no  disease  more  feared  by  the  human  family  than  cancer. 
The  jury  were  allowed  to  consider  in  this  case  the  testimony  of  Dr. 
Mowery  that  the  defendant  in  error  might  some  time  in  the  future 
find  that  the  tumor  in  her  breast  had  developed  into  a  fatal  cancer. 
How  much  effect  or  weight  that  testimony  may  have  had  with  the 
jury  on  the  question  of  fixing  the  measure  of  her  damages  no  one 
can  say.  They  were  directed  by  the  instructions  of  the  court  to  con- 
sider all  the  evidence  bearing  on  the  question  of  damages  in  fixing 
the  amount  of  damages.  The  physicians  in  the  case  settled  the  ques- 
tion by  their  direct  and  positive  testimony  that  the  tumor  and  the 
neurasthenia  or  nervousness  of  the  defendant  in  error  were  caused  ^ 
by  the  coHision.  The  jury  had  nothing  left  to  do  but  to  proceed  to  I 
award  large  damages  under  this  evidence.     *     *     * 

Judgment  reversed. 

CONNOR  v.  O'DONNELL. 
(Supreme  Judicial  Court  of  Massachusetts,  1918.     230  Mass.  39,  119  N.  E.  446.) 

Crosby,  J.''^  The  plaintifif  in  the  first  action  seeks  to  recover  dam- 
ages from  the  defendant,  a  physician,  for  alleged  negligence  in  his 
treatment  and  care  of  her  after  she  had  given  birth  to  a  child.  She 
will  hereinafter  be  referred  to  as  the  plaintiff.  The  second  action  is 
brought  by  the  husband  of  the  plaintiff  in  the  first  action  to  recover 
consequential  damages. 

The  plaintiff  filed  specifications  of  the  unskillfulness  and  negligence 
of  the  defendant,  alleged  in  her  declaration  in  substance  as  follows: 
The  first  specification  alleged  that  the  defendant  negligently  directed 
that  the  plaintiff,  while  suffering  from  convulsions  following  child- 
birth, be  restrained  and  held  in  bed  by  holding  her  by  her  wrists, 
whereby  her  shoulders^  became  dislocated  and  fractured;  the  second 
specification  alleged  that  after  the  plaintiff's  shoulders  had  been  frac- 
tured and  dislocated,  the  defendant  failed  to  discover  her  injuries 
and  negligently  prescribed  treatment  which  caused  her  great  pain 
and  resulted  in  permanent  disabilities.  [The  jury  returned  a  verdict 
for  the  plaintiffs  in  each  case.] 

The  remaining  exceptions  relate  to  questions  put  to  Dr.  Jefferson,  a 
medical  expert  called  by  the  plaintiflF.  He  was  asked  on  direct  exam- 
ination: "Now  coming  to  the  left  shoulder,  Doctor,  from  your  ex- 
amination of  the  plate  and  Mrs.  Connor  and  the  evidence  in  the  case, 
have  you  formed  any  opinion  as  to  the  cause  of  the  present  condi- 
tion?" 

The  exception  to  the  admission  of  this  question  must  be  sustamed. 
n  is  settled  that  an  expert  witness  cannot  be  asked  or  allowed  to  ex- 

*5  Statement  and  part  of  opinion  omitted. 


796  OPINIONS  AND  CONCLUSIONS  (Cll.  4 

press  an  opinion  founded  in  whole  or  in  part  on  the  evidence  where, 
as  in  the  case  at  bar,  it  was  conflicting.  An  important  question  at 
the  trial  was  whether  the  fracture  and  dislocation  of  the  plaintiff's 
shoulders  was  due  to  the  convulsions  alone  or  resulted  from  the  con- 
vulsions together  with  the  physical  restraint  exercised  upon  her  by 
the  defendant  or  under  his  direction. 

It  was  said  by  this  court  in  Stoddard  v.  Winchester,  157  Mass.  567, 
at  page  575,  32  N.  E.  948,  at  page  949:  "The  proper  way  to  inter- 
rogate an  expert,  to  obtain  his  opinion  on  facts  to  be  derived  from 
testimony,  is  to  put  questions  on  hypothetical  statements  of  facts,  or 
to  ask  the  witness  to  give  opinions  founded  on  possible  views  of  the 
evidence,  stating  in  connection  with  the  opinions  the  hypothetical 
facts  to  which  they  relate,  so  as  to  make  them  intelligible.  An  ex- 
pert witness  cannot  be  asked  to  give  an  opinion  founded  on  his  un- 
derstanding of  the  evidence,  against  the  objection  of  the  other  party, 
except  in  cases  where  the  evidence  is  capable  of  but  one  interpreta- 
tion. In  other  words,  questions  must  be  so  framed  that  the  witness 
will  not  be  called  upon  to  give  an  answer  involving  his  opinion  on 
disputed  questions  of  fact  which  are  not  proper  subjects  for  the  tes- 
timony of  an  expert,  nor  to  intimate  to  the  jury  his  opinion  as  to  the 
credibility  of  any  of  the  witnesses."  Hunt  v.  Lowell  Gas  Light  Co., 
8  Allen,  169,  85  Am.  Dec.  697 ;  Chalmers  v.  Whitmore  Mfg.  Co.,  164 
Mass.  532,  42  N.  E.  98;  McCarthy  v.  Boston  Duck  Co.,  165  Mass. 
165,  42  N.  E.  568;  Rafferty  v.  Nawn,  182  Mass.  503,  507,  65  N.  E. 
830;  Burnside  v.  Everett,  186  Mass.  4,  71  N.  E.  82;  Com.  v.  John- 
son, 188  Mass.  382,  386,  74  N.  E.  939;  Wigmore  on  Evidence,  §  681. 
*     *     * 

As  the  witness  Jefferson  was  allowed  to  express  an  opinion  founded 
in  part  on  "the  evidence  in  the  case"  which  was  conflicting,  the  ex- 
ception thereto  must  be  sustained ;   the  others  are  overruled. 

Exceptions  sustained. 


SECTION   3.— OPINION   BASED    ON   EXAMINATION    AND 
COMPARISON  OF  WRITINGS 


GOODTITLE  dem.  REVETT  v.  BRAHAM. 

(Court  of  Kings  Bench,  1792.     4  Terra  R.  407.) 

This  ejectment  was  tried  at  bar  by  a  special  jury  from  Suffolk, 
and,  by  consent,  some  talesmen  from  Middlesex.  The  lessor  of  the 
plaintiff  claimed  as  the  heir  at  law,  the  defendant  as  the  devisee  of 
Mrs.  Elizazbeth  Braham,  the  person  last  seised.*"     *     ♦     * 

««  I'art  of  case  omitted. 


Sec.  3)  EXAMINATION    AND   COMPARISON    OF   WRITINGS  797 

The  plaintiff  then  stated  his  pedigree,  which  was  admitted ;  and 
the  defendant  proved  the  will,  which  was  impeached  on  various 
grounds,  but  chielly  on  those  of  forgery,  and  undue  influence.  There 
were  two  parts  of  the  will,  to  each  of  which  were  three  signatures  and 
a  seal;  and  with  one  of  them  was  sealed  up  a  paper,  purporting  to  be 
instructions  for  the  will,  in  the  hand-writing  of  the  testatrix,  and  signed 
and  sealed  by  her ;  at  the  bottom  of  which  was  a  memorandum,  that 
the  testatrix  at  the  time  of  executing  the  will  requested  the  attesting 
witnesses  to  sign  the  paper  for  her,  which  she  declared  to  be  her 
writing;  and  they  had  signed  it  accordingly.  This  memorandum  was 
in  the  hand  of  one  Reilly,  who  was  supposed  by  the  plaintiff  to  be  the 
contriver  of  the  will,  and  who  was  considerably  benefited  by  it.  The 
plaintiff's  case,  as  to  the  forgery,  consisted  of  evidence  that  the  tes- 
tratrix  was  incapable  of  writing  a  paper  of  such  length  as  these  in- 
structions, and  hardly  able  to  sign  her  name ;  of  declarations  in  her 
life-time  that  she  never  would  make  any  will ;  and  of  some  contradic- 
tions by  the  attesting  witnesses.  The  plaintiff  then  called  two  clerks 
of  the  Post-office,  who  swore  that  they  were  used  to  inspect  franks 
and  detect  forgeries.  They  were  then  asked  whether,  from  their 
general  knowledge  of  writing,  the  instructions  were  a  natural  or  an 
imitated  hand ;  this  question  was  objected  to,  but  allowed  by  the 
Court ;  and  the  clerks  swore  that  the  hand  was  imitated.  They  were 
then  asked  if  they  could  judge  whether  the  instructions  were  written 
by  the  person  who  wrote  the  memorandum :  This  question  was  also 
objected  to,  as  being  a  comparison  of  hands  ;  but  allowed  by  the  Court. 

Lord  KeInyon,  C.  J.,  mentioned  a  case  where  a  decypherer  had 
given  evidence  of  the  meaning  of  letters  without  explaining  the  grounds 
of  his  art,  and  where  the  prisoner  was  convicted  and  executed.  And 
BuLLER,  J.,  said  it  was  like  the  case  of  Wells  Harbour,  where  persons 
of  skill  were  allowed  to  give  evidence  of  opinion.  The  clerks  then 
swore  that  from  their  knowledge  of  the  similarity  of  hands  they  were 
sure  that  the  instructions  and  memorandum  were  written  by  the  same 
person.  They  also  sv/ore  that  all  the  signatures  to  the  will,  and  the 
signature  to  a  power  of  attorney  to  surrender  copy-holds  to  the  use 
of  the  will  executed  afterwards,  were  imitated  and  not  natural  writ- 
ing. On  cross-examination  they  admitted  that  they  had  never  detected 
an  imitation  of  the  hand  of  a  very  old  person,  who  wrote  with  dif- 
ficulty, and  might  be  supposed  frequently  to  stop.  That  their  prin- 
cipal means  of  knowing  was  by  seeing  whether  the  letters  were  paint- 
ed, that  is,  gone  over  a  second  time  with  the  pen,  which  they  ad- 
mitted might  happen  to  any  person  from  a  failure  of  ink.  Other 
signatures  of  the  testatrix  proved  by  unsuspected  persons,  were  then 
shewn  to  these  witnesses ;  one  of  these  signatures  was  sworn  to  be 
genuine  by  one  of  them,  and  by  the  other  to  be  Imitated. 

Lord  Kenyon,  in  summing  up  to  the  jury,  said  he  should  leave 
the  question  of  forgery  on  the  evidence  they  had  heard,  without  any 
observations. 


798  -  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

Evidence  was  also  given  on  the  ground  of  influence.  The  jury 
found  for  the  plaintiff.*^ 

47  In  Rex  V.  Cator,  4  Espinasse.  117  (Nisi  Prius.  1802).  Baron  Hotham  re- 
ceived similar  opinion  tliat  a  writing  was  not  natural,  but  rejected  an  opinion 
based  on  comparison,  saying: 

"  *  *  *  Then  comes  the  inspector  of  franks,  from  the  Post-office;  he  has 
these  libels  put  into  his  hands.  Now,  I  do  not  know  how  that  gentleman 
could  speak  to  the  hand-writing,  unless  he  could  say  he  had  seen  the  party 
write,  or  unless  he  had  been  in  the  habit  of  correspondence  with  him,  except- 
ing that  he  is  called  to  speak  as  a  man  of  science  to  an  abstract  question.  In 
that  light  he  has  been  called,  and  his  evidence  has  been  admitted.  He  is 
shown  these  papers ;  and  he  is  asked  to  look  at  them,  and,  without  inquiring 
who  wrote  them,  or  for  what  purpose.  He  is  asked,  'From  your  knowledge  of 
hand-writing  in  general,  do  you  believe  that  writing  to  be  a  natural  or  ficti- 
tious hand?'  His  science,  his  knowledge,  his  habit,  all  entitle  him  to  say,  I 
am  confident  it  is  a  feigned  hand.  To  that  there  is  no  objection ;  and  so  far 
as  that  goes,  I  see  no  reason  for  rejecting  that  evidence. 

"Then  comes  the  next  and  important  point.  It  is  said  to  him,  'Now  look 
at  this  paper,  and  tell  me  whether  the  same  hand  wrote  both?'  Why,  one 
cannot  help  seeing,  evidently,  what  must  be  the  consequence: — I  cannot  con- 
ceive there  is  anything  in  the  idea  of  a  comparison  of  hands,  if  this  is  not 
to  be  considered  as  comparison  of  hands.  The  witness  says,  I  never  saw  him 
write  in  my  life.  Why  then,  I  collect  all  my  knowledge  of  his  being  the  au- 
tlior  of  this,  by  comparing  the  same  hand  with  that  which  other  witnesses 
have  proved  to  be  a  natural  hand:  by  looking  at  the  two,  he  draws  his  con- 
clusion. It  seems  to  me,  therefore,  directly  and 'completely  a  comparison  of 
hand.  This  question  seems  to  have  been  solemnly  decided ;  but  when  I  see 
the  same  noble  and  learned  Judge  repenting  of  what  he  had  suffered  in  the 
former  case,  and  expressly  saying  he  could  not  receive  such  evidence;  and 
observing,  that  though  such  evidence  was  received  in  Revett  and  Braham,  he 
had,  in  liis  summing  up  to  the  jury,  laid  no  stress  upon  it:  this  being  the 
case,  I  cannot  consider  it  so  adjudged,  but  that  I  may  exercise  my  own  judg- 
ment in  rejecting  it." 

The  latter  observations  appear  to  he  based  on  a  misunderstanding  of  cer- 
tain rulings  by  Lord  Kenyon  in  Pitt  v.  Carey,  Peake  Adl.  Cases,  130  (1797), 
2  Peake,  N.  P.  130,  where  it  was  proposed  to  prove  that  the  alleged  signature 
of  the  defendant  was  a  forgei-y,  by  an  expert  witness  who  had  no  knowledge 
of  the  genuine  signature  except  from  having  seen  several  papers  purporting 
to  have  been  written  by  him.  Lord  Kenyon  rejected  this  as  not  coming  with- 
in the  rule  that  the  witness  must  have  seen  the  person  write,  or  at  least  have 
become  acquainted  with  his  writing  from  correspondence.  Garrow  then  asked 
the  witness  whether;  having  been  used  to  detect  forgeries,  he  could  say  this 
was  a  genuine  handwriting,  Lord  Kenyon  said  he  would  not  receive  this,  and 
observed  that  though  such  evidence  was  received  in  Revett  and  Braham,  he 
had,  in  his  charge  to  the  jurj',  laid  no  stress  upon  it. 


Sec.  3)  EXAMINATION    AND   COMPARISON    OF   WRITINGS  7139 

GURNEY  et  al.  v.  LANGLAXDS. 
(Court  of  Kiug's  Bench,  1822.     5  Barn.  &  Aid.  330.) 

Feigned  issue  directed  by  the  Court  of  King's  Bench,  to  try  whether 
the  supposed  signature  of  Thomas  Gurney  the  plaintiff,  to  a  certain 
warrant  of  attorney,  dated  16th  April,  1821,  was  forged.  At  the  trial 
before  Wood,  B.,  at  the  last  assizes  for  Surrey,  the  plaintiff,  in  support 
of  the  affirmative  of  the  issue,  tendered  the  evidence  of  Joseph  Hume, 
inspector  of  franks  at  the  post-office,  who  stated,  that  he  was  unac- 
quainted with  the  plaintiff's  hand-writing,  and  was  then  asked  the  fol- 
lowing question :  "From  your  knowledge  of  hand-writing,  do  you  be- 
lieve the  hand-writing  in  question  to  be  a  genuine  signature,  or  an  imi- 
tation?" This  question  was  objected  to,  and  the  objection  allowed  by 
the  learned  Judge,  who  stated  in  his  report  the  following  reasons: 
"When  a  witness  has  seen  another  write,  or  has,  by  receiving  notes  or 
letters  from  him,  become  acquainted  with  his  hand-writing,  he  has  a 
ground  of  forming  a  belief  as  to  it.  But  where,  as  in  this  case,  he 
acknowledges  that  he  had  not  any  previous  acquaintance  whatever  with 
the  hand-writing  of  the  plaintiff,  he  could  not,  as  I  conceived,  have  any 
foundation  for  his  opinion  or  belief,  whether  the  signature  in  question 
was  genuine  or  only  an  imitation ;  for  he  had  never  seen  or  had  any 
knowdedge  of  that  of  which  it  was  supposed  to  be  an  imitation.  There 
is  no  general  known  standard  by  which  hand-writing  can  upon  inspec- 
tion only  be  determined  to  be  counterfeited,  without  some  previous 
knowledge  of  the  genuine  hand-writing,  the  hand-writings  of  men  being 
as  various  as  their  faces.  Opinions  of  skilful  engineers  and  mariners, 
&c.,  may  be  given  in  evidence  in  matters  depending  upon  skill,  viz. :  as 
to  what  effect  an  embankment  in  a  particular  situation  may  have  upon 
a  harbour,  or  whether  a  ship  has  been  navigated  skillfully.  Because, 
in  such  cases,  the  witness  has  a  knowledge  of  the  alleged  cause,  and 
his  skill  enables  him  to  judge  and  form  a  belief  of  the  eft'ect.  I  had 
never  known  such  loose  general  evidence  admitted,  or  even  offered,  and 
it  struck  me,  that  the  admission  of  it  would  produce  much  mischief, 
and  greatly  endanger  written  securities."  The  evidence  on  the  part  of 
the  defendant,  of  the  subscribing  witnesses  to  the  warrant  of  attorney 
and  others,  was  so  strong,  that  the  jury  declared  themselves  satisfied, 
and  found  a  verdict  for  the  defendant.  Knowlvs,  in  last  Michaelmas 
term,  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground  that  this  evi- 
dence was  admissible,  and  had  been  rejected. 

Abbott,  C.  J.  I  have  long  been  of  opinion,  that  evidence  of  this 
description,  whether  in  strictness  of  law  receivable  or  not,  ought,  if 
received,  to  have  no  great  weight  given  to  it.  This  was  an  issue  di- 
rected by  the  Court,  in  order  to  enable  them  to  come  to  a  satisfactory 
conclusion  upon  a  rule  pending  before  iJiem.  The  other  evidence  in 
this  case  was  of  so  cogent  a  description  as  to  have  produced  a  verdict 
satisfactory  to  the  Judge  who  tried  the  cause ;  and  I  can  pronounce  my 


800  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

judgment  much  more  to  my  own  satisfaction  upon  a  verdict  so  found, 
than  if  this  evidence  had  been  admitted,  and  had  produced  a  contrary- 
verdict.  For  I  think  it  much  too  loose  to  be  the  foundation  of  a  judicial 
decision,  either  by  judges  or  juries.  The  rule,  therefore,  for  a  new  trial 
must  be  discharged. 

BaylEy,  J.,  concurred. 

HoLROYD,  J.  I  have  great  doubt  whether  this  is  legal  evidence ; 
but  I  am  perfectly  clear  that  it  is,  if  received,  entitled  to  no  weight ;  and 
this  being  an  issue  directed  to  satisfy  the  Court,  we  shall  best  exercise 
our  discretion  by  refusing  a  new  trial. 

Best,  J.  There  can  be  no  doubt  that  this  is  not,  in  all  probability, 
the  natural  hand-writing  of  the  party ;  for  it  is  clear,  that  if  at  the  time 
he  wrote  it  he  had  the  intention  to  dispute  the  deed,  he  would  not  sign 
it  in  his  usual  mode.  The  evidence,  therefore,  if  received,  would  be 
entitled  to  no  weight.  It  is  impossible  for  any  person  to  speak  to  hand- 
writing being  an  imitation,  unless  he  has  seen  the  original :  and  it  does 
not  appear  to  me  necessarily  to  follow,  that  an  inspector  of  franks  has 
peculiar  means  of  ascertaining  imitated  hand-writing.  I  think,  at  all 
events,  this  evidence  was  properly  rejected,  sufficient  ground  not  having 
been  previously  laid  for  receiving  it.  But  still,  even  if  it  was  receiv- 
able, I  am  satisfied  that,  on  the  ground  stated  by  my  Lord  Chief  Jus- 
tice, this  rule  ought  to  be  discharged. 

Rule  discharged. 


DOE  ex  dem.  PERRY  v.  NEWTON  et  ux. 
(Court  of  King's  Bench,  1836.     5  Adol.  &  E.  514.) 

On  the  trial  of  this  ejectment  before  Coleridge,  J.,  at  the  last  Summer 
Assizes  for  Cumberland,  the  defendants  produced  the  alleged  will  of 
one  John  Brockbank,  on  which  they  rested  their  title.  The  genuineness 
of  the  signature,  purporting  to  be  that  of  the  testator,  was  disputed, 
and  contradictory  evidence  given  respecting  it,  for  the  plaintiff  and  de- 
fendants. The  plaintiff's  counsel,  in  cross-examining  one  of  the  de- 
fendants' witnesses,  put  into  his  hand  some  letters,  which  the  witness 
said  he  believed,  from  the  character,  to  be  of  Brockbank's  writing. 
It  was  afterwards  proposed,  on  behalf  of  the  plaintiff,  to  submit  these 
letters  to  the  jury,  in  order  that  they  might  compare  tliem  with  the 
disputed  signal.ure,  and  thereby  judge  both  of  its  genuineness  and  of  the 
credit  due  to  the  witnesses  on  this  subject.  The  letters  were  not  in  evi- 
dence for  any  other  purpose.  The  learned  Judge  would  not  allow  them 
to  be  put  in;   and  the  defendants  had  a  verdict. 

Alexander  now  moved  for  a  new  trial,  on  the  ground  (among  others) 
of  the  rejection  of  evidence. 

Lord  Denman,  C.  J.*^  This  is  a  point  on  which  we  ought  not  to 
raise  any  doubt.    I  rather  think  the  decision  in  Griffith  v.  Williams,  1 

*8  Opinions  of  Patteson  and  Williams,  J.T.,  omitted. 


Sec.  3)  EXAMINATION    AND   COMPARISON    OF    WKITING8  801 

Cro.  &  J.  47,*"  has  been  considered  to  go  a  long  way;  but  the  real 
ground  upon  which  that  rests  appears  to  me  to  be  that  the  comparison 
is  unavoidable.  There  being  two  documents  in  question  in  the  cause, 
one  of  which  is  known  to  be  in  the  handwriting  of  a  party,  the  other 
alleged,  but  denied  to  be  so,  no  human  power  can  prevent  the  jury  from 
comparing  them  with  a  view  to  the  question  of  genuineness ;  and  there- 
fore it  is  best  for  the  Court  to  enter  with  the  jury  into  that  inquiry, 
and  to  do  the  best  it  can,  under  circumstances  which  cannot  be  helped. 
I  cannot  easily  reconcile  Lord  Kenyon's  ruling  in  Allesbrook  v.  Roach, 
1  Esp.  351,  with  what  has  been  done  in  any  other  case.  The  facts  in- 
deed were  peculiar;  but  I  think  that  at  present  no  judge  would  come 
to  the  same  decision.  The  best  rule  is,  that  comparison  of  writings  by 
the  jury  shall  not  be  allowed  in  any  case  where  it  can  be  avoided. 
When  we  consider  that  the  same  course  which  is  permitted  in  a  case 
like  this  may  also  be  resorted  to  in  a  criminal  case  for  the  purpose  of 
a  conviction,  we  cannot  draw  the  limit  too  carefully. 

Coleridge,  J.  I  am  of  the  same  opinion.  It  is  true  that  the  ob- 
jection now  taken  applies  in  some  degree  to  the  proof  of  ancient  writ- 
ings by  comparison,  which  is  constantly  allowed.  But  that  is  an  except- 
ed case,  from  necessity,  tlie  documents  not  being  capable  of  proof  in  the 
usual  way ;  and  the  danger  of  improper  selection  is  less  than  in  the 
case  of  modern  writings.  In  addition  to  the  reasons  which  have  been 
given  in  this  case,  it  must  be  considered  how  many  irrelevant  issues  a 
jury  would  have  to  try  if  the  proposed  comparison  were  allowed.  Doc- 
uments bearing  upon  the  cause  must  be  proved  with  reference  to  the 
main  points  in  issue,  independently  of  the  question  of  handwriting ;  but 

4  9  The  material  parts  of  this  case,  as  reported  in  1  Cr.  &  J.  47  (1830),  are 

as  follows: 

"Assumpsit  for  a  breach  of  promise  to  marry.  At  the  trial  before  Goul- 
burn,  J.,  at  the  last  Lent  Assizes  for  the  county  of  Cardigan,  the  jury  found 
a  verdict  for  the  plaintiff.  A  rule  nisi  for  a  new  trial  had  been  granted  on 
the  ground  that  the  verdict  was  contrary  to  evidence. 

"At  the  trial,  the  plaintiff  put  in  several  letters,  which  were  admitted  to 
be  in  the  defendant's  handwriting;  and  called  witnesses  to  prove  that  an- 
other letter,  upon  which  the  question  mainly  depended,  was  also  in  the  hand- 
writing of  the  defendant.  The  defendant  called  witnesses  to  prove  that  this 
letter  was  not  in  his  handwriting. 

"In  the  course  of  the  argument  it  was  suggested  by  John  Evans,  for  the  de- 
fendant, that  the  Jury  had  been  influenced  by  a  comparison  of  handwriting, 
which  the  learned  Judge  had  desired  them  to  make  between  the  admitted  and 
disputed  letters. 

"Per  Curiam.  Where  tu'o  documents  are  in  evidence,  it  is  competent  for  the 
Court  or  the  Jury  to  compare  them.  The  rule  as  to  the  comparison  of  hand- 
writing applies  to  witnesses,  who  can  only  compare  a  writing  to  which  they 
are  examined,  with  the  character  of  the  handwriting  impressed  upon  their 
own  minds ;  but  that  rule  does  not  apply  to  the  Court  or  Jury,  who  may  com- 
pare the  two  documents  when  they  are  properly  in  evidence. 

"The  rule  was  subsequently  discharged,  the  judgment  of  Bolland,  B.,  pro- 
ceeding on  an  elaborate  comparison  which  he  had  made  between  the  letters 
in  question ;  and  he  pointed  out  a  number  of  remarkable  coincidences  be- 
tween the  documents,  in  the  formation  of  several  letters  and  the  mode  of 
writing  several  words." 

HiNT.Ev. — 51 


802  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

for  the  purpose  of  such  a  comparison,  many  documents  quite  irrelevant 
to  the  cause  must  be  admitted,  with  the  disadvantage  that  the  opposite 
party  could  not  be  prepared  for  such  evidence.  It  might  even  become 
necessan'  that  the  contents  of  such  documents  should  be  gone  into. 
Rule  refused. 


THE  FITZWALTER  PEERAGE  CASE. 

(House  of  Lords,  1843.     10  Clark  &  F.  193.) 

This  was  the  claim  of  Sir  Brook  William  Bridges,  Bart.,  to  the 
Barony  of  Fitzwalter,  which  was  created  by  writ  of  summons  in  the 
year  1295,  and  fell. into  abeyance  in  1756,  on  the  death  of  Benjamin 
Mildmay,  the  17th  and  last  Lord  Fitzwalter,  without  surviving  issue. 

Mr.  Loftus  Wigram  and  Sir  Harris  Nicolas,  the  Claimant's  counsel, 
proposed  to  put  in  evidence  some  family  pedigrees,  which  were  pro- 
duced from  the  proper  custody;  no  objection  was  made  to  them  in 
that  respect.  They  purported  to  have  been  made  by  Edmund  Fowler, 
who  was  proved  to  have  died  in  1751.  He  had  stood  in  the  direct  line 
of  the  Claimant's  ancestors,  being  the  father  of  his  grandmother,  one 
of  the  coheiresses  to  the  Barony,  being  also  third  son  and,  in  tlie  events 
which  happened,  heir  of  Frances  Mildmay  (or  Fowler),  who  was  first 
cousin  and  coheir  of  the  said  Benjamin,  last  Lord  Fitzwalter.  So 
that,  if  those  pedigrees  could  be  proved  to  have  been  of  the  writing  of 
this  Edmund  Fowler,  they  would  be  admissible  in  evidence  for  the 
Claimant,  as  declarations  made  by  a  deceased  relative  of  circumstances 
respecting  the  state  of  his  family  and  immediate  relatives  (see  Vowles 
V.  Young,  13  Ves.  p.  143  et  seq.).  They  had  been  offered  in  evidence 
before  the  Attorney-General,  on  the  reference  of  the  Claimant's  peti- 
tion to  him,  but  were  rejected  for  want  of  proof  of  the  handwriting. 

The  way  in  which  it  was  proposed  now  to  prove  the  handwriting 
was  this :  first,  by  producing  from  the  Prerogative  Office  Mr.  Fowler's 
will, — already  received  in  evidence  for  other  purposes, — and  four 
other  documents,  which  were  proved  to  be  of  his  handwriting:  namely, 
a  confidential  letter  written  by  him  to  the  steward  of  his  manor  at 
St.  Clear's  Hall,  Essex;  another  letter  by  him,  appointing  a  game- 
keeper within  that  manor ;  a  memorandum  in  an  account  book ;  and  a 
deed  of  settlement  of  property  comprised  within  the  said  manor.  These 
were  produced  from  tlie  closet  containing  the  Claimant's  family  muni- 
ments, including  the  title-deeds  of  the  said  manor  and  property,  whicli 
now  belong  to  him  in  right  of  his  grandmother.  It  was  proved  that 
the  deed  of  settlement  had  been  repeatedly,  and  very  recently,  acted 
upon,  and  that  all  the  documents  had  the  genuine  signature  of  "E. 
Fowler."  It  was  next  proposed  to  prove  the  identity  of  the  signer 
of  those  documents  with  the  writer  of  the  pedigrees,  by  comparison 
of  the  handwriting  of  the  latter,  with  the  signatures  to  the  proved  doc- 
uments;  and  for  that  purpose — 


Sec.  3)  EXAMINATION    AND   COMPARISON   OF   WRITINGS  803 

Mr.  Lewis  Silvester  Clarac  was  examined :  He  said,  in  answer  to 
the  questions  put  to  him  by  the  counsel  and  Lords,  that  he  held  for  18 
years  the  office  of  inspector  of  franks  in  the  General  Post-office ;  and 
after  the  abolition  of  the  franking  privilege,  he  had  become  inspector 
of  official  correspondence ;  that  he  had  much  experience  in  distinguish- 
ing the  characters  of  handwriting,  and  was  consulted  on  this  matter 
upon  important  occasions.  Being  then  asked  if  he  had  examined  the 
signatures  of  E.  Fowler  to  three  of  the  documents,  the  deed,  the  will, 
and  the  appointment  of  gamekeeper,  all  of  which  were  produced  to 
him,  he  said  he  had  examined  the  signature  to  the  will  in  the  Preroga- 
tive Office  twice,  and  looked  four  or  five  times  at  the  signatures  to  the 
letter  and  other  documents  of  Edmund  Fowler,  and  to  the  handwriting 
of  the  entries  in  the  account  book  and  of  queries  on  the  pedigree  of  the 
Mildmay  family,  at  the  office  of  the  Claimant's  solicitor;  and  he  con- 
sidered that  by  the  inspections  he  had  made,  he  was  so  familiar  with 
the  handwriting  of  the  person  by  whom  these  documents  were  written 
or  signed,  that  without  any  immediate  comparison  with  them,  he  should 
be  able  to  say  whether  any  other  document  produced  was  or  was  not 
in  the  handwriting  of  the  same  person.  He  believed  all  these  docu- 
ments to  have  been  signed  by  the  same  person;  and  he  did  not  form 
his  opinion  merely  from  the  signatures,  but  more  from  the  general 
similarity  of  the  letters,  which,  he  said,  were  written  in  a  remarkable 
character. 

The  Attorney-General,  having  before  objected  to  the  examination 
of  this  witness,  again  submitted  that  his  evidence  was  not  receivable, 
not  being  the  knowledge  of  handwriting  acquired  by  a  person  in  the 
ordinary  course  of  business,  giving  him  a  practical  acquaintance  wit^i 
the  writing  of  a  particular  person.  The  rule  of  admitting  professional 
skill  in  handwriting  had  been  carried  too  far,  and  ought  not  to  be  ex- 
tended. The  Courts  of  Law  were  accordingly  becoming  more  strict. 
This  witness  was  not  familiar  with  the  handwriting,  which  he  under- 
took to  prove,  from  a  course  of  business,  like  a  party's  solicitor  or 
steward,  or  like  a  parishioner  admitted  as  a  witness  in  some  cases ;  but 
he  had  studied  tlie  handwriting  for  the  purpose  of  speaking  to  the 
identity  of  the  writer.  A  person  who  reads  a  medical  or  chemical  book 
with  the  utmost  attention,  for  the  purpose  of  giving  evidence  on  a 
question  of  medicine  or  chemistry,  is  not  an  admissible  witness  for 
such  purpose.'^" 

The  Lord  Chancellor  and  Lord  Brougham,  after  looking  into 
some  of  the  cases  referred  to,  said  the  pedigree  could  not  be  received 
on  the  sort  of  proof  of  the  handwriting  now  offered. 

Lord  Brougham  added,  that  about  five  years  ago,  the  Lord  Chief 
Justice  of  the  Court  of  Queen's  Bench  did  him  the  honour. to  consult 
him  on  this  sort  of  evidence ;  and  their  joint  impression  was,  that  if  the 
cases  of  Doe  v.  Tarver,  and  Sparrow  v.  Farrant, — one  before  Lord 

60  statement  condensed  and  part  of  opinion  omitted. 


804  OPINIONS  AND  CONCLUSIONS  (Ch.  i 

Chief  Justice  Abbott,  and  the  other  before  Mr.  Justice  Holroyd, — 
were  correctly  reported,  they  had  gone  farther  than  the  rule  was  ever 
carried.  In  the  present  case  his  noble  and  learned  friend  (the  Lord 
Chancellor)  and  himself  were  clearly  of  opinion  that  they  ought  not  to 
allow  a  person  to  say  from  inspection  of  the  signatures  to  two  or  three 
documents — two  only,  the  deed  and  will,  being  genuine  instruments, 
admitted  to  be  in  the  handwriting  of  Edmund  Fowler — from  tlie  in- 
spection of  those  two  documents,  that  he  could  prove  the  handwriting 
of  the  party.  No  doubt  such  evidence  had  been  often  received,  be- 
cause it  was  not  objected  to.  A  witness  was  properly  allowed  to  speak 
to  a  person's  handwriting  from  inspection  of  a  number  of  documents 
with  which  he  had  grown  familiar  from  frequent  use  of  them ;  and  it 
was  on  that  ground  that  a  person's  solicitor  and  steward  were  admitted 
to  prove  his  handwriting. 

Mr,  Wigram  referred  to  a  case  of  a  trial  at  bar,  Revett  v.  Braham 
(4  Term.  Rep.  497),  in  which  an  inspector  of  franks  at  the  Post- 
ofifice  was  admitted  to  say,  as  a  matter  of  skill  and  judgment,  wheth- 
er the  name  signed  to  a  will  was  genuine  or  in  a  feigned  hand. 

Lord  Brougham.  Yes,  truly;  for  that  is  matter  of  professional 
skill  (vide  ante,  p.  154).  But  that  is  no  reason  for  admitting  a  witness 
to  speak  to  the  real  handwriting  of  a  person  from  only  having  seen 
a  few  of  his  signatures  to  other  instruments  produced  to  him,  and 
that  for  the  purpose  of  proving  its  identity.     *     *     *  si 

51  The  (iocuinent  was  finally  admitted  In  this  case  on  the  te.=;timony  of  the 
family  solicitor,  who  had  become  familiar  with  the  handwriting  in  question 
from  an  examination  of  a  large  number  of  title  deeds,  etc. 
.    A  somewhat  similar  question  arose  in  Doe  v,  Suckermore,  5  Adol.  &  El. 
70.3  (18.36),  the  facts  of  which  are  thus  stated  in  the  headnote: 

"Defendant  in  ejectment  produced  a  will,  and,  on  one  day  of  the  trial 
(which  lasted  several  days),  called  an  attesting  witness,  who  swore  that  the 
attestation  was  his.  On  his  cross-examination,  two  signatures  to  depositions 
respecting  the  same  will  in  an  ecclesiastical  court,  and  several  other  signa- 
tures, were  shown  to  him  (none  of  these  being  in  evidence  for  any  other  pur- 
pose of  the  cause),  and  he  stated  that  he  believed  them  to  be  his.  On  tlie  fol- 
lowing day,  the  plaintiff  tendered  a  witness  to  prove  the  attestation  not  to  be 
genuine.  The  witness  was  an  inspector  at  the  bank  of  England,  and  had  no 
knowledge  of  the  handwriting  of  the  supposed  attesting  witness,  except  from 
having,  previously  to  the  trial  and  again  between  the  two  days,  examined  the 
signatures  admitted  by  the  attesting  witness,  which  admission  he  had  heard 
made  in  Court. 

"Per  Lord  Denman,  C.  J.,  and  Williams,  J.     Such  evidence  was  receivable. 

"Per  Patte.son  and  Coleridge,  JJ.    It  was  not." 

The  evidence  was  rejected  at  the  trial,  and  the  Court  being  equally  divided 
in  opinion,  a  new  trial  was  refused. 

In  IH'A  the  vexed  question  was  settled  in  England  by  section  27,  c.  125,  17 
&  18  Victoria: 

"Comijarison  of  a  disjiuted  writing  with  any  writing  proved  to  the  satis- 
faction of  tbe  judge  to  be  genuine  shall  be  permitted  to  be  made  by  witnesses; 
and  such  writings,  and  the  evidence  of  witnesses  respecting  the  same,  may 
be  submitted  to  tbe  court  and  jury  as  evidence  of  the  genuineness,  or  other- 
wise, of  the  uriling  iu  dispute." 


Sec.  3)  EXAMINATION    AND   COMrARISON    OF   WRITINGS  805 

RIDEOUT  V.  NEWTON  et  al. 

(Superior  Ck)urt  of  New  Hampshire,  1S45.     17  N.  EF.  71.) 

Assumpsit  on  a  note,  dated  on  the  eighth  day  of  August,  1843,  for 
$50,  purporting  to  be  made  by  the  defendants  to  the  plaintiff. 

There  was  no  service  upon  Levi  H.  Newton,  and  Elbridge  G.  New- 
ton pleaded  the  general  issue,  denying  that  he  ever  signed  the  note. 
Among  other  witnesses  produced  by  the  plaintiff  to  prove  the  signa- 
ture to  be  genuine,  was  one  who  testified  that  he  never  saw  the  said 
Elbridge  write  but  once,  and  then  only  to  receipt  a  bill  which  he  pre- 
sented against  the  witness.  To  the  competency  of  this  witness  to 
give  an  opinion  as  to  the  genuineness  of  the  signature  on  the  note, 
defendant  objected,  but  the  court  admitted  him.°^ 

Gilchrist,  j.  *  *  *  There  is  no  rule  of  law  that  requires  that  a 
witness,  called  to  prove  the  hand-writing  of  a  party,  should  have  seen 
the  party  write  a  large  number  of  times.  Hand-writing,  like  the  coun- 
tenance, form,  gait,  and  gesture  of  a  party,  is  recognized  by  some  more 
readily  than  by  other  witnesses,  and  is  in  some  persons  marked  by 
more  decisive  and  obvious  peculiarities  than  in  others.  All  that  is 
requisite,  is  to  ascertain  whether  the  witness  has  seen  hand-writing 
which,  by  an  infallible  test,  he  knows  to  be  that  of  the  party ;  and 
then  he  must  upon  his  oath  declare  if  the  writing  exhibited  appears  to 
him  to  be  that  of  the  same  party.  The  weight  to  be  attached  to  such 
testimony  must  depend  upon  the  ordinary  tests  of  knowledge,  the 
capacity  of  the  witness,  and  his  disposition  to  tell  the  truth,  and  the 
means  that  have  been  afforded  him,  whether  from  the  intrinsic  na- 
ture of  the  subject  itself,  or  the  familiarity  of  the  witness  with  it  to 
acquire  the  information  he  assumes  to  have.  The  witness  to  the  genu- 
ineness of  the  defendant's  signature  to  the  note  was  therefore  prop- 
erly admitted.     *     *     * 

New  trial  (on  other  grounds)."*^ 

6  2  Statement  condensed  and  part  of  opinion  omitted. 

5  3  And  so  in  Woodford  v.  McClenalian,  9  111.  (4  Oilman)  85  (1847). 

The  witness  may  acquire  a  knowledge  of  the  hand-writing  in  question  from 
business  correspondence  without  having  seen  the  person  write.  Royburn  v. 
Belotti,  10  Mo.  097  (1847) ;  Redding  v.  Redding's  Estate,  69  Vt.  500,  38  Atl. 
230  (1897).  But  not  from  seeing  a  document  not  known  or  acknowledged  to 
have  been  written  by  such  person.    Randolph  v.  Gordon,  5  Price,  312  (1818). 

For  a  collection  of  the  cases,  see  Ratliff  v.  Ratliff,  131  N.  C.  425,  42  S.  E. 
887,  63  L.  R.  A.  963  (1902),  annotated. 


806  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

ELLINGWOOD  v.  BRAGG. 
(Supreme  Judicial  Court  of  New  Hampshire,  1872.     52  N.  H.  488.) 

Assumpsit,  by  John  W.  Ellingwood  against  Wm.  W.  Bragg.  The 
plaintiff  offered  Wm.  Heywood  as  an  expert,  to  give  an  opinion  upon 
the  question  whether  a  long  account  upon  the  defendant's  books 
against  the  plaintiff  was  written  at  different  times,  as  it  purported 
to  be  on  the  book,  or  whether  it  was  all  written  with  the  same  pen 
and  ink  and  at  the  same  time.  The  witness  testified  that  he  had  been 
in  practice  as  an  attorney-at-law  some  forty  years,  and  had  had  about 
the  same  experience  as  lawyers  in  general  in  the  examination  and  com- 
parison of  handwritings;  that  he  had  been  engaged  in  one  or  two 
cases  which  led  him  particularly  to  examine  and  compare  handwrit- 
ings, but  he  did  not  claim  to  be  able  to  give  an  opinion  upon  which 
any  great  reliance  could  be  placed.  The  court  allowed  him  to  give  his 
opinion  as  an  expert,  and  the  defendant  excepted.  The  question  of 
discretion  was  fully  reserved. 

The  questions  of  law  thus  raised  were  reserved. 

Foster,  J.^*  The  defendant  excepted  to  the  ruling  of  the  court,  ad- 
mitting the  testimony  of  Mr.  Heywood  as  an  expert.  The  rules  which 
govern  the  determination  of  the  question  thus  presented,  were  declared 
by  this  court  in  the  recent  case  of  Dole  v.  Johnson,  50  N.  H.  452; 
and  we  see  no  reason  to  modify  the  views  then  expressed. 

According  to  that  case  (and  upon  elementary  principles),  in  order 
to  qualify  one  to  testify  as  an  expert,  it  should  appear,  in  the  first 
place,  that  the  subject  concerning  which  he  is  called  to  testify  is  one 
upon  which  the  opinion  of  an  expert  can  be  received.  The  subject 
must  be  one  peculiar  and  exceptional,  concerning  which  some  explana- 
tion, such  a  peculiar  knowledge  alone  can  afford,  is  required,  in  order 
to  render  it  intelligible  to  the  comprehension  and  understanding  of 
ordinary  men.  In  other  words,  the  subject-matter  of  the  evidence 
"must  so  far  partake  of  the  nature  of  a  science  Ss  to  require  a  course 
of  previous  habit  or  study  in  order  to  the  attainment  of  a  knowledge 
of  it."     Smith's  note  to  Carter  v.  Boehm,  1  Smith's  L.  Cases,  286  a. 

The  rule  which  admits  the  testimony  of  experts,  jn  any  case,  is 
exceptional ;  and  all  evidence,  which  is  not  founded  upon  absolute 
knowledge  of  the  facts  pertaining  to  the  cause  under  investigation, 
should  be  received  with  caution.  See  Brehm  v.  Great  Western  Rail- 
way Co.,  34  Barb.  (N.  Y.)  273. 

We  are  not  disposed  to  .enlarge,  but  rather  to  restrain  within  as 
narrow  limits  as  a  due  regard  for  the  ascertainment  of  truth  in  judi- 
cial investigations  will  allow,  all  such  encroachments,  so  to  speak,  upon 
the  province  of  the  jury  as  shall  permit  witnesses  to  express  opin- 
ions merely. 

^*  I'art  of  opinion  omitted. 


Sec,  3)  EXAMINATION    AND   COMPARISON    OF   WRITINGS  807 

We  are  not  prepared  to  say  that  the  subject-matter  of  Mr.  Hey- 
wood's  testimony  was  one  upon  which  the  opinion  of  an  expert  was 
inadmissible.     But  it  comes  very  near  the  Hne  of  demarcation. 

It  is  not  like  a  question  concerning  the  genuineness  of  a  signature 
or  other  writing,  about  which  persons,  like  cashiers  of  banks,  for 
example,  skilled  by  a  course  of  study,  training,  and  practice,  may  un- 
doubtedly be  called  to  assist  the  investigations  of  unskilled  jurors. 
It  is  more,  perhaps,  like  the  case  of  a  comparison  of  writings,  which 
was  formerly  held  in  England  to  be  inadmissible,  for  reasons  not  ap- 
plicable to  New  England  and  its  officers  and  institutions,  namely  be- 
cause the  jury  were  supposed  to  be  too  illiterate  to  judge  of  this  sort 
of  evidence. 

The  question  here  is  not  whether  the  writings  were  genuine  or 
feigned,  but  whether  the  items  of  account  were  written  at  different 
times,  or  whether  they  were  all  written  at  the  same  time  with  the 
same  pen  and  ink. 

It  is  admitted,  as  we  understand  it,  that  the  items  were  all  written  by 
the  same  person, — by  which  admission  the  principal  and  most  diffi- 
cult investigation  is  withdrawn,  from  the  case;  and  the  other  ques- 
tion would  seem  to  rest  more  upon  conclusions  to  be  drawn  from 
the  general  appearance  of  the  color  of  the  ink,  and  the  coarse  or  fine 
character  of  the  letters,  and  their  uniformity  or  diversity  in  this  re- 
spect, than  from  any  other  sources  of  knowledge.  Such  comparison 
and  examination,  it  seems  to  us,  might  not  imprudently  be  entrusted 
to  such  men  as  usually  compose  our  panels  of  jurors. 

But  whether  the  subject  upon  which  Mr.  Heywood  was  called  to 
testify  was  one  upon  which  the  opinion  of  an  expert  may  be  received 
or  not,  we  are  clearly  of  the  opinion  that  the  witness  did  not  possess 
the  legal  qualifications  requisite  to  enable  him  to  testify  in  the  ca- 
pacity of  an  expert. 

In  this  matter,  our  opinion  coincides  with  his  own,  as  it  was  mod- 
estly, but  conscientiously,  expressed  upon  the  witness-stand. 

His  attention  had  only  once  or  twice,  in  tlie  course  of  a  long  pro- 
fessional experience  as  a  lawyer,  been  particularly  called  to  the  exam- 
ination and  comparison  of  handwritings. 

He  was  not,  with  reference  to  the  subject  under  investigation,  a 
man  of  science,  and  he  was  not  qualified  by  any  previous  habit  and 
course  of  attention,  observ'ation,  and  particular  and  special  study  in 
that  direction. 

The  possession  of  some,  at  least,  of  these  qualifications  was,  in  the 
opinion  of  this  court  two  years  ago,  deemed  essential  to  the  admissi- 
bihty  of  such  testimony,  in  the  exercise  of  a  prudent  judicial  discre- 
tion.    Dole  V.  Johnson,  50  N.  H.  452,  459. 

We  may  reasonably  doubt, whether  the  verdict. of  the  jury  was  ob^ 
tained  or  influenced  by  the  evidence  thus  improperly  received,  since, 
as  already  remarked,  the  subject-matter  of  the  evidence  was  one  which 
the  jury  might,  perhaps,  determine  upon  their  own  inspection.     And 


SOS  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

it  is  matter  of  deep  regret  that  the  question  of  discretion  should  be 
reserved  in  cases  like  this,  the  competency  of  such  evidence  being  most 
conveniently  and  satisfactorily  determined  at  the  trial,  upon  personal 
examination  of  the  witness.  Dole  v.  Johnson.  This  court  cannot 
deal  with  the  matter  so  confidently  as  the  presiding  judge;  and  the  re- 
vision of  the  question,  by  a  tribunal  not  so  competent  to  consider  and 
pass  upon  it  as  the  tribunal  by  which  it  is  re?er\'ed.  seems  an  almost 
unwarrantable  expenditure  of  labor,  time,  and  pecuniary  cost. 

But,  since  the  question  is  reserved  and  must  be  determined,  we  see 
no  way  to  avoid  the  expense  and  delay  of  a  new  trial  of  the  cause. 

*        *        *   53 


MILES  V.  LOOMIS  et  al. 
(Court  of  Appeals  of  New  York,  1S7S.     75  N.  Y.  2SS,  31  Am.  Rep.  470.) 

This  action  was  brought  upon  a  promissory  note  claimed  to  have 
been  made  and  delivered  by  defendants'  testator  to  the  plaintiff. 

The  plaintiff  alleged  in  his  complaint  that  the  note  was  in  fact  made 
by  the  testator  that  it  might  be  used  as  an  off-set  to  a  note  which  he 
at  the  same  time  executed  to  the  testator  and  at  his  earnest  solicita- 
tion, for  an  amount  which  he  did  not  justly  owe,  but  which  the  testa- 
tor desired  in  order  to  satisfy  his  wife  and  her  father,  and  which  the 
testator  did  not  intend  should  be  paid  by  the  plaintiff,  but  that  said 
note  had  after  the  death  of  the  testator  been  transferred  for  a  valu- 
able consideration,  before  maturity,  so  that  the  plaintiff  was  liable 
thereon  to  the  bona  fide  holder.  The  defense  was  forgery  of  the  note 
in  suit. 

The  note  given  by  the  plaintiff  to  the  deceased  was  given  in  evi- 
dence on  the  trial  without  objection,  the  body  of  it  including  the  name 
of  the  deceased  as  payee  was  proved  to  be  in  his  handwriting.  The 
will  of  the  testator  was  also  put  in  evidence  by  the  defendants,  and 

55  See  general  test  as  to  qualification  suggested  in  Miles  v.  Loomis,  75  N.  Y. 
2S8,  31  Am.  .Rep.  470  (1S7S). 

Compare  Vinton  v.  Peck,  14  Mich.  287  (1SG6),  where  the  court  seemed  to 
think  that  no  particular  qualifications  were  necessary,  in  cases  involving 
handwriting. 

In  other  fields  something  more  than  general  information  on  a  given  subject 
is  required.  Thus  the  editor  of  an  agricultural  journal  who  had  read  ex- 
tensively about  certain  animal  diseases  was  held  lacking  in  the  necessary 
q  ions  to  give  an  opinion  on  such  matters.    Dole  v.  Johnson,  50  N.  H. 

4:  .     _  :  _  _■;. 

Physicians  are  assumed  to  be  generally  competent  as  to  medical  matters, 
and  it  is  not  necessary  that  they  should  have  had  personal  experience  with 
the  kind  of  disease  or  injury  in  question;  their  knowledge  may  be  largely 
liased  on  the  study  of  medic-al  writers.  State  v.  Terrell.  12  Rich.  (S.  C.)  321 
(1859);  State  v.  Baldwin.  .30  Kan.  1,  12  Pac.  .318  (ISSG);  Tinnegan  v.  Fall 
River  Gas  Works  Co.,  159  Mass.  311,  34  N.  E.  523  (1S93) ;  State  v.  Wood.  53 
N.  II.  484  (1873). 


Sec.  3)  EXAMINATION    AND   COMPARISON   OF    WRITINGS  809 

was  received  without  objection.  Defendants  then  called  certain  wit- 
nesses who  after  testifying  to  their  qualifications  to  speak  as  experts 
in  handwriting,  were  asked  to  look  at  the  name  of  the  deceased  ap- 
pearing in  the  body  of  the  note  executed  by  plaintifif  and  at  the  signa- 
ture to  the  will,  and  were  then  asked  to  give  their  opinion,  assuming 
them  to  be  genuine  signatures,  as  to  whether  the  signature  to  the  note 
in  suit  was  genuine.  This  was  objected  to  upon  the  ground  that  such 
a  comparison  of  hands  could  not  be  made  by  experts.  The  objection 
was  overruled  and  exception  taken.  The  witnesses  answered  sub- 
stantially, that  in  their  opinion  the  signature  was  not  genuine ;  that  it 
was  not  written  by  the  same  person  as  the  one  who  wrote  the  others. 
They  were  also  permitted  to  testify  under  objection  and  exception 
that  in  their  opinion  the  signature  in  question  was  simulated. 

Hand,  J.^^  I  think  the  two  documents  put  in  by  the  defendants 
without  objection  on  the  part  of  the  plaintiff  must  be  regarded  as 
properly  in  evidence  for  all  the  purposes  of  the  case.     *     *     * 

Treating  therefore  these  two  signatures  of  the  testator  as  properly 
in  evidence,  the  question  is  whether  experts  in  handwriting  could  be 
permitted,  upon  comparison  in  court  of  these  signatures  with  that  of 
the  note  in  suit,  without  any  other  knowledge  of  the  testator's  writ- 
ing, to  express  an  opinion  as  to  the  genuineness  of  the  latter  and  as  to 
whether  it  appeared  a  natural  or  simulated  hand. 

The  statement  of  the  learned  counsel  for  the  appellant  that  precisely 
this  kind  of  evidence  has  never  yet  been  held  proper  by  the  court  of 
last  resort  in  this  state  is,  we  believe,  accurate,  although  it  comes  in 
principle  within  the  decision  in  Dubois  v.  Baker,  30  N.  Y.  355,  361. 
Indeed,  I  think  it  must  be  conceded  that  the  earlier  cases  adjudged  in 
our  courts  lean  pretty  decidedly  against  the  admissibility  of  such  evi- 
dence. In  this  respect  we  were  formerly  more  strict  than  any  of  the 
other  States.  People  v.  Spooner,  1  Denio,  343,  43  Am.  Dec.  672; 
Jackson  ex  dem.  v.  Phillips,  9  Cow.  112;  Phoenix  F.  Ins.  Co.  v.  Phil- 
ip, 13  Wend.  81.  Our  courts  followed  of  course  the  common  law 
which  was  supposed  to  differ  from  the  practice  of  the  civil  and  ecclesi- 
astical courts.  The  nisi  prius  decisions  in  the  English  courts,  although 
not  in  entire  harmony  (Allesbrook  v.  Roach,  1  Esp.  351)  and  much 
criticised  by  the  text  writers,  were  generally  hostile  to  the  admission 
of  comparison  by  experts  until  by  the  act  of  parliament  "  in  1854 
such  evidence  was  declared  legitimate  (Stranger  v.  Searle,  1  Esp.  14: 
Clermont  v.  Tullidge,  4  Car.  &  P.  1 ;  Rex  v.  Cator,  4  Esp.  117). 
Even,  however,  before  the  passage  of  that  act  a  jury  was  allowed,  it- 
self, to  institute  the  comparison,  but  only  with  documents  in  evidence 
before  them  and  relevant  to  the  issue.    Doe  dem.  Perry  v.  Newton,  5 

5  6  Part  of  opinion  omitted. 

&7  For  a  review  of  similar  legislation  in  New  York,  see  People  v.  Molineux, 
168  N.  Y,  264,  61  N.  E.  286,  62  L.  R.  A.  193  (1901).  A  number  of  the  states 
have  such  statutes  at  this  time. 


810  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

Ad.  &  Ell.  514;  Solita  v.  Yarron,  1  Moo.  &  Rob.  133;    Griffiths  v. 

Williams,   1   Cro.   &  Jer.  47;  Bromage  v.   Rice,  7  C.   &   P.  547.''« 
*     *     * 

Although  this  decision  ^^  lays  down,  as  has  been  already  intimated, 
a  somewhat  more  liberal  rule  as  to  evidence  of  handwriting  than  had 
prev-iously  prevailed  in  this  State,  yet  it  has  been  generally  acquiesced 
in,  is  in  conformity  with  the  law  in  other  States  and  seems  to  have  be- 
come an  established  practice  in  the  trial  courts.  See  Goodyear  v. 
Vosburgh,  63  Barb.  154;  Johnson  v.  Hicks,  1  Lans.  160;  Roe  v.  Roe, 
40  N.  Y.  Super.  Ct.  1. 

We  are  very  strongly  of  the  opinion  that  it  is  sounder  in  principle 
than  the  more  narrow  one  and  in  no  respect  an  infringement  upon  any 
wholesome  and  just  limitation  of  expert  testimony. 

Evidence  of  handwriting,  it  is  universally  conceded,  may  be  opinion 
merelv.  It  is  as  universally  conceded  that  a  witness  who  has  either 
ever  seen  the  party  write  or  who,  not  having  seen  him  write,  has  re- 
ceived letters  from  him  which  have  been  "acted  upon"  by  him  as  gen- 
uine, is  competent  to  give  an  opinion  as  to  his  handwriting.  And 
this  competency  is  not  affected  by  the  lack  of  frequency  of  observa- 
tion, the  length  of  time  which  has  elapsed  since  the  writing  was  seen, 
or  the  slightness  of  the  correspondence,  although  the  weight  of  the 
opinion  will  of  course  depend  much  upon  these  circumstances. 

From  what  in  these  cases  is  the  opinion  derived,  if  not  from  a  men- 
tal comparison  of  hands  ?  The  signature  is  presented  to  the  witness 
and  his  only  means  of  forming  an  opinion  upon  it  is  by  recalHng  with 
more  or  less  distinctness  to  his  mind  images  of  the  signatures  he  has 
either  seen  made  or  attached  to  letters  received,  and  comparing  them 
with  the  one  presented  for  his  opinion.  This  is  certainly  a  "compari- 
son of  hands"  and  in  my  judgment  no  favorable  distinction  as  to  ac- 
curacy or  safety  can  be  made  between  such  a  mental  process  and  that 
of  the  expert  who  has  become  quick  by  practice  in  detecting  identity 
of  hands,  and  also  compares  in  his  mind  and  with  his  eye  the  one  in 
question  with  other  signatures  as  certainly  genuine  as  those  which 
the  ordinary  witness  has  seen  written  or  received  in  letters.  The 
comparative  weight  of  the  two  kinds  of  evidence  is  not  the  question 
under  consideration.  The  opinion  of  the  ordinary  witness,  founded 
only  upon  a  mental  comparison  of  the  disputed  writing  with  a  single 
signature  seen  by  him  twenty  years  before,  would  be  worth  little,  but 
it  would  undoubtedly  be  competent.  Jackson  ex  dem.  v.  Van  Dusen, 
5  Johns.  144,  4  Am.  Dec.  330;  Eagleton  v.  Kingston,  8  Ves.  473.  So 
the  opinion  of  an  expert  founded  upon  a  comparison  with  but  one  or 
two  genuine  signatures  should  not  perhaps  be  regarded  as  of  much 
value,  but  it  still  has  every  claim,  in  principle,  to  competency  possess- 
es In  the  omitted  passage  the  court  revievvorl  Doe  v.  Suckermore,  5  Ad.  & 
Kl.  70:5  (18;;f;),  and  lJul)ois  v.  Bakor,  .".O  N.  Y.  'MQ  (ISGl). 
£-»  Dubois  V.  Baker,  oO  N.  Y.  'MO  (lb04). 


Sec.  3)  EXAMINATION   AND   COMPARISON    OF    WRITINGS  811 

ed  by  the  other.  Nor  does  the  distinction  sought  to  be  raised  by  Lord 
Denman  in  Doe  v.  Suckermore  [5  Ad.  &  E.  703],  supra,  between  an 
opinion  of  an  expert  who  has  previously  examined  other  genuine  sig- 
natures put  in  evidence  and  then  is  called  to  speak  as  to  genuineness 
from  his  knowledge  of  the  signature  thus  gained,  without  actual  com- 
parison before  the  court,  and  one  given  upon  an  examination  or  com- 
parison in  court  of  the  signatures  and  without  any  previous  knowl- 
edge, seem  on  scrutiny  to  be  well  grounded  or  practicable.  It  would 
be  impossible  to  draw  a  line  between  these  processes.  It  is  undoubt- 
edly true  that  the  opinion  as  to  handwriting  should  depend  not  so 
much  upon  mathematical  measurements  and  minute  criticisms  of  lines 
nor  their  exact  correspondence  in  detail,  when  placed  in  juxtaposition 
with  other  specimens,  as  upon  its  general  character  and  features  as 
in  the  recognition  of  the  human  face.  But  in  the  case  of  one  expert, 
his  mental  image  or  idea  of  the  genuine  handwriting  may  become  as 
clear  and  vivid  and  accurate  by  an  examination  of  the  other  signa- 
tures on  the  instant  as  in  the  case  of  another  of  less  practice  or  quick- 
ness of  perception  after  hours  or  days  of  study.  The  amount  of 
knowledge  gained  by  this  study  and  the  length  of  time  and  frequency 
of  opportunity  to  gain  it  affect  the  weight  of  the  evidence  as  in  the 
case  of  the  ordinary  witness,  but  cannot  properly  decide  its  compe- 
tency. 

The  principal  objections  which  have  been  raised  to  the  comparison 
of  hands  are  two :  First,  the  introduction  of  numerous  and  distract- 
ing collateral  issues  as  to  the  genuineness  of  the  signatures  to  be 
compared.  As  to  each  one  of  these,  it  is  said  there  might  be  the  same 
controversy  as  with  regard  to  the  original  signature,  and  the  further 
introduction  of  the  comparison  of  hands  and  so  the  number  of  issues 
to  be  decided  be  without  end.  But  this  objection  seems  tolerably  met 
by  tlie  restriction  of  the  signatures  to  be  compared  to  those  necessarily 
or  properly  proved  in  the  case  as  relevant  evidence  for  other  purposes 
and  upon  the  genuineness  of  which,  if  there  is  any  controversy  about 
them,  the  jury  must  pass  in  any  event.  This  limitation,  it  must  be 
conceded,  is  not  very  philosophical  or  logically  satisfactory,  but  is 
justified  by  the  necessity  of  the  case,  and  at  all  events  answers  the  ob- 
jection of  collateral  issues.  Second.  The  second  objection  to  the 
comparison  of  hands  is  that  no  man  writes  always  the  same  signature 
and  the  specimens  will  be  unfairly  selected  as  being  unlike  or  like  the 
signature  in  dispute  according  to  the  interest  of  the  party  producing 
them.  They  will  not  be  fair  average  specimens  of  the  general  charac- 
ter of  the  handwriting.  Dallas,  C.  J.,  Burr  v.  Harper,  Holt  N.  P.  C. 
44.  That,  consequently,  the  expert,  to  whom  they  are  submitted,  will 
have  no  opportunity  of  obtaining  an  accurate  notion  of  the  ordinary 
natural  hand;  and  as  illustrative  of  this  objection,  the  decision  of 
Lord  Kenyon  is  cited,  who  refused  to  allow  a  witness  to  give  an  opin- 
ion, whose  only  knowledge  was  from  the  signatures  he  had  seen  the 
party  himself  write  for  the  avowed  purpose  of  showing  his  true  man- 


812  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

ner  of  writing.  Stranger  v.  Searle,  1  Esp.  14.  The  force  of  this  ob- 
jection also  is,  I  think,  done  away  by  the  restriction  of  the  rule  to  sig- 
natures relevant  in  the  cause  for  other  purposes  and  as  to  which 
therefore  there  could  hardly  be  any  selection  of  the  signatures  for  the 
purposes  of  comparison. 

On  the  whole  therefore  I  am  inclined  to  concur  in  the  soundness  of 
the  doctrine  upon  this  point  contended  for  in  the  most  approved  text 
writers  upon  evidence.  "It  cannot  be  denied,"  says  Mr.  Starkie  (Star- 
kie  on  Evi.  vol.  2,  p.  375),  "that  abstractly  a  witness  is  more  likely  to 
form  a  correct  judgment  as  to  the  identity  of  handwriting  by  compar- 
ing it  critically  and  minutely  w'ith  a  fair  and  genuine  specimen  of  the 
party's  handwriting  than  he  would  be  able  to  make  by  comparing  what 
he  sees  with  the  faint  impression  made  by  having  seen  the  party  write 
but  once  and  then  perhaps  under  circumstances  which  did  not  awaken 
his  attention."  "When  other  writings,"  says  Prof.  Greenleaf  (Greenl. 
on  Evi.  §  578),  "admitted  to  be  genuine  are  already  in  the  case,  here 
comparison  may  be  made  by  the  jury  with  or  without  the  aid  of  ex- 
perts." See,  also,  Phillips  on  Evi.  vol.  1  (6th  Ed.)  472;  Evans'  note 
to  Pothier  on  Contracts,  2  Evans'  Pothier,  p.  185. 

My  conclusion  is  that  there  was  no  error  in  the  admission  of  the 
evidence  of  experts  before  the  referee. 

The  counsel  for  appellant  insists  here  that  the  witness  is  called  by 
the  defendants  as  experts  were  not  qualified  as  such,  but  no  such  ob- 
jection was  taken  upon  the  trial.  These  witnesses  were,  however,  we 
think  shown  to  be  sufficiently  competent  to  give  the  opinions  upon 
handwriting.  They  had  been  engaged  in  occupations  in  which  it  was 
their  duty  to  scrutinize  handwritings  and  detect  forgeries  and  had  ac- 
quired more  or  less  skill  by  practice. 

There  being  no  error  committed  upon  the  trial,  the  judgment  must 
be  af^rmed,  with  costs. 

All  concur,  except  Andrews,  J.,  absent. 

Judgment  affirmed. "^ 

60  Accord:  Griffin  v.  Working  Women's  Home  Ass'n,  151  Ala.  597,  44  South. 
605  (1907) ;  Hiinrod  v.  Giluian,  147  111.  293,  35  N.  E.  373  (1893) ;  Vinton  v. 
Peclf,  14  Mich.  287  (ISGG) ;    State  v.  David,  131  Mo.  380,  33  S.  W.  28  (1895). 

In  State  v.  Thompson,  132  Mo.  301,  34  S.  W.  31  (1896),  in  holding  that  ir- 
relevant documents  should  not  have  been  admitted  for  the  purpose  of  com- 
parison, the  rule  was  stated  as  follows:  "Under  repeated  adjudications  of 
this  court  it  has  been  ruled  that  unless  writings  are  in  evidence  for  some  le- 
gitimate purpose  in  the  case  and  are  admitted  to  be  in  the  genuine  handwrit- 
ing of  the  party  or  he  is  estopped  from  d(-ii.ving  their  gonuiiicnoss  they  cannot 
be  admitted  for  the  purpose  of  comparison  with  disputed  writings  or  for  the 
purpo.se  of  proving  tlie  handwriting  of  a  party."  A  similar  limitation  is  sug- 
gested in  some  of  the  Illinois  cases. 

In  Massachusetts  and  a  numljor  of  the  New  England  states  a  comparison 
is  allowed  with  any  writing  proved  to  be  g(!nuine,  though  not  otherwise  rele- 
vant.    Moody  V.  Howell,  17  Pick.  (Mass.)  490,  28  Am.  Dec.  317  (1835). 

See  In  re  Hopkins'  Will,  172  N.  Y.  360,  65  N.  E.  173,  65  L.  R.  A.  95,  92 
Am.  St.  lU;p.  716  (1902),  e.x'cluding  expert  opinion  as  to  the  genuineness  of' 
u  cross  n)ark  u.scd  as  a  signature. 


Sec.  3)  EXAMINATION    AND    COMPARISON    OF    WRITINGS  813 

THROCKMORTON  v.  HOLT. 

(Supreme  Court  of  the  United  States,  1901.     180  U.  S.  552,  21  Sup.  Ct.  474,  45 

L.  Ed.  663.) 

Mr.  Justice  Peckham.«^  *  *  *  Again,  in  the  course  of  the  trial 
the  contestants  called  a  Mrs.  Briggs  as  a  witness,  and  proved  by  her 
that  she  was  a  journalist  by  profession  and  had  made  literature  her 
business  in  life,  and  that  she  had  received  instruction  from  Judge  Holt 
in  the  line  of  composition  in  the  English  language ;  that  she  had  gone 
to  him  and  asked  his  advice  about  a  series  of  articles  written  by  her, 
because  she  had  been  informed  that  he  was  a  master  of  the  English 
language ;  that  he  was  her  master  and  teacher  in  such  matters.  She 
was  also  somewhat  familiar  with  his  handwriting,  and  stated  that  in 
her  opinion  the  signature  "J.  Holt"  to  the  paper  in  question  was  not 
the  signature  of  Judge  Holt.  She  was  then  asked:  "Have  you 
formed  that  opinion  in  any  respect  upon  any  matter  except  the  mere 
handwriting?"  This  was  objected  to  and  admitted  under  an  exception. 
The  witness  answered  that  she  had,  that  it  was  from  the  composition : 
"More  the  composition,  as  well  as  the  writing." 

Other  witnesses  were  called  who  were  permitted  to  prove  that  they 
formed  their  opinions  in  regard  to  the  paper  from  its  composition  and 
style,  and  their  knowledge  of  Judge  Holt's  legal  and  literary  attain- 
ments, as  well  as  from  their  familiarity  with  his  handwriting.  One 
witness  was  asked  this  question :  "Let  me  call  your  attention  to  the 
use  of  the  word  'inherit'  in  that  paper,  in  the  middle  paragraph.  From 
your  Jcnowledge  of  General  Holt's  characteristics  and  his  way  of  ex- 
pressing himself,  what  do  you  think  as  to  that  being  his  expression?" 
This  question  was  duly  objected  to  and  the  grounds  fully  stated,  but  the 
court  overruled  the  objection  and  permitted  the  witness  to  answer, 
which  he  did  by  saying  that  he  did  not  think  the  testator  would  use 
that  expression.     *     *     * 

We  are  thus  brought  to  a  consideration  of  the  merits  of  the  ques- 
tion decided  by  the  court  below.  Is  the  opinion  of  a  witness  as  to  the 
genuineness  of  the  handwriting  found  in  the  paper,  based  in  part  up- 
on the  knowledge  of  the  witness,  of  the  character  and  style  of  compo- 
sition and  the  legal  and  literary  attainments  of  the  individual  whose 
handwriting  it  purports  to  be,  competent  to  go  to  the  jury  upon  that 
question?  If  he  is  able  to  give  an  opinion  without  such  evidence,  and 
from  his  familiarity  alone  with  the  handwriting,  can  the  attempt  be 
permitted  to  corroborate  or  strengthen  such  an  opinion  by  this  kind  of 
evidence?  We  think  not.  An  expert  in  regard  to  handwriting  is 
one  who  has  become  familiar  with  the  handwriting  of  the  individual 
in  regard  to  whom  the  question  is  raised.  Handwriting  is  a  physical 
matter,  and  does  not  in  itself  represent  any  characteristics  of  the 
writer  as  to  composition  or  general  style,  or  as  to  his  literary  or  legal 

61  For  the  statement  of  the  case,  see  ante,  p.  701.     Part  of  opinion  omitted- 


814  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

attainments.  It  Is  to  be  seen  and  the  characters  recognized  by  the 
eye.  But  the  process  of  his  mind  and  the  language  or  style  in  which 
in  the  opinion  of  a  witness  the  person  habitually  clothes  his  thoughts, 
are  not  matter  of  expert  evidence,  proper  to  be  presented  to  a  jury,  for 
the  purpose  of  determining  whether  the  paper  presented  is  or  is  not 
in  the  handwriting  of  the  particular  individual,  in  regard  to  whom  the 
inquiry  is  made.  The  fact  may  of  course  be  proved  that  the  person 
was  a  man  of  intelligence,  education,  high  legal  attainments,  refine- 
ment, and  not  addicted  to  coarseness  in  speech  or  writing,  and  the 
inference  may  be  sought  to  be  drawn  from  the  facts  that  the  paper  in 
question  is  or  is  not  his  composition  and  is  or  is  not  his  handwriting ; 
but  where  it  is  material  the  inference  is  for  the  jury,  and  taking  the 
opinion  of  the  witness  in  that  regard  is  to  take  his  opinion  upon  the 
very  subject  to  be  decided  by  the  jury,  and  is  not  at  all  a  proper  case 
for  opinion  evidence. 

We  think  the  court,  therefore,  erred  in  permitting  witnesses  to  give 
an  opinion  as  to  the  genuineness  of  handwriting  founded  partly  upon 
knowledge  and  familiarity  with  the  legal  attainments,  the  style  and 
composition  of  the  individual  whose  handwriting  was  in  controversy, 
and  as  corroborative  of  their  opinion  from  knowledge  of  handwriting 
alone.    *    *    * 

Judgment  reversed. 


PEOPLE  v.  STORKS. 

(Court  of  Appeals  of  New  York,  1912.     207  N.  Y.  147,  100  N.  E.  730,  45  K  R. 
A.  [N.  S.]  860,  Ann.  Cas.  1914C,  196.) 

BarTlETT,  J.®2  *  *  *  j|.  ^as  important,  if  not  essential,  to  the 
case  for  the  prosecution  to  prove  that  the  body  of  the  document  was 
produced  by  the  use  of  the  defendant's  typewriting  machine.  For 
this  purpose  the  district  attorney  was  permitted,  over  the  defendant's 
objection  and  exception,  to  introduce  in  evidence  another  paper  pre- 
pared by  a  witness  who  was  at  the  time  the  defendant's  law  partner 
upon  the  defendant's  typewriter.  The  contents  of  this  paper  were  in 
no  wise  relevant  to  the  issue  on  trial,  and  the  paper  was  r.eceived,  as 
the  learned  county  judge  stated,  not  so  much  as  a  standard  for  the 
comparison  of  handwriting  as  upon  the  principle  that,  where  an  im- 
pression is  made  upon  paper,  wood,  leather,  or  any  other  plastic  ma- 
terial by  an  instrument  or  mechanical  contrivance  having  or  possessing 
a  defect  or  peculiarity,  the  identity  of  the  instrument  may  be  estab- 
lished by  proving  the  identity  of  the  defects  or  peculiarities  which  it 
impresses  on  different  papers. 

Section  961  d  of  the  Code  of  Civil  Procedure,  amended  so  as  to  take 
effect  in  its  present  form  on  February  17,  1909,  provides  as  follows: 

Part  of  opinion  oujitted. 


Sec.  3)  EXAMINATION    AND   COMPARISON    OF   WRITINGS  815 

'"Comparison  of  a  disputed  writing  with  any  writing  proved  to  the 
satisfaction  of  tlie  court  to  be  the  genuine  handwriting  of  any  per- 
son, claimed  on  the  trial  to  have  made  or  executed  the  disputed  in- 
strument, or  writing,  shall  be  permitted  and  submitted  to  the  court 
and  jury  in  like  manner."  Formerly  the  comparison  of  disputed  hand- 
writing with  unquestionable  specimens  was  permitted  only  when  the 
latter  had  been  admitted  in  evidence  for  other  purposes,  as  relevant 
to  the  issue,  or  without  objection.  Miles  v.  Loomis,  75  N.  Y.  288, 
31  Am.  Rep.  470.  The  history  of  subsequent  legislation  on  the  sub- 
ject and  the  interpretation  of  such  legislation  by  the  courts  will  be 
found  fully  narrated  and  explained  in  the  opinion  of  Judge  Werner 
in  People  v.  Molineux,  168  N.  Y.  264,  318,  61  N.  E.  286,  62  L.  R.  A. 
193.  I  think  it  may  well  be  doubted  whether  typewriting  can  be 
deemed  handwriting  within  the  meaning  of  the  existing  statute.  Nev- 
ertheless, I  think  the  law  sanctions  the  reception  of  the  evidence  in 
question,  substantially  on  the  theory  adopted  by  the  trial  judge. 

If  the  impression  of  a  seal  were  in  controversy,  it  would  surely  be 
competent  to  show  by  other  impressions  from  the  same  sealing  instru- 
ment that  the  impression  was  invariably  characterized  by  a  particular 
mark  or  defect.  Impr-essions  made  by  a  shoe,  for  the  sole  .and  very 
purpose  of  comparison,  would  undoubtedly  be  competent  evidence  in 
a  prosecution  for  burglary,  where  it  was  sought  to  identify  the  ac- 
cused by  means  of  his  footprints.  This  evidence  is  quite  analogous. 
Typewritten  specimens  were  similarly  received  for  the  purpose  of 
showing  that  certain  disputed  receipts  could  not  have  been  produced 
by  the  typewriter  on  which  they  were  alleged  to  have  been  prepared, 
in  a  case  tried  before  Vice  Chancellor  Pitney  of  New  Jersey  in  1893. 
Levy  V.  Rust,  49  Atl.  1017,  1025.  There  the  court  was  called  upon  to 
determine  the  character  of  certain  receipts  which  were  alleged  to  be 
forgeries.  To  assist  him  the  vice  chancellor  took  the  testimony  of 
"a  gentleman  who  is  employed  by  the  vendors  of  typewriting  ma- 
chines to  go  about  the  country  and  examine  typewriting  machines  and 
see  whether  they  are  out  of  order,  and  in  that  way  his  eye  becomes 
very  acute  and  quick  to  discover  things  that  will  escape  the  vision  of 
a  casual  observer."  This  witness  pointed  out  three  defects  in  the 
machine  on  which  the  questionable  receipts  must  have  been  written. 
The  period  mark  was  invariably  too  low.  The  letter  "s"  was  "off  its 
feet,"  and  the  "u"  was  placed  too  far  to  the  left.  Specimens  of  type- 
writing done  by  the  machine  on  which  the  receipts  were  said  to  have 
been  written  were  produced  for  comparison,  and  in  these  specimens 
none  of  these  defects  appeared.  Hence  the  vice  chancellor  concluded 
that  they  were  written  on  a  different  and  defective  machine  and  were 
forgeries.    ♦    *    * 

These  several  cases  base  the  rulings  which  have  been  mentioned 
upon  the  assumption  or  proof  that  a  typewriting  machine  may  pos- 
sess an  individuality  which  differentiates  it  from  other  typewriters  and 
which  is  recognizable  through  the  character  of  the  work  which  it  pro- 


816  OPINIONS  AND  CONCLUSIONS  (Ch.  4 

duces.  Inasmuch  as  its  work  affords  the  readiest  means  of  identifica- 
tion, no  valid  reason  is  perceived  why  admitted  or  established  samples 
of  that  work  should  not  be  received  in  evidence  for  purposes  of  com- 
parison with  other  typewritten  matter  alleged  to  have  been  produced 
upon  the  same  machine.  *  *  * 
Reversed  (on  other  grounds). *^^ 

8  3  For  a  collection  of  the  cases  on  this  point,  see  notes  to  principal  case  ii> 
45  L.  R.  A.  (^^  S.)  860  (1912).  .     . 

For  a  collection  of  the  cases  dealing  with  expert  opinion  as  to  typewriting, 
see  Baird  v.  Shaffer,  101  Kan.  585,  168  Pac.  836,  L.  R.  A.  191SD,  638  (1917), 

annotated. ,     ,^r   r. . 

See,  also.  People  v.  Jennings,  252  111.  534,  96  N.  E.  1077,  43  L.  R.  A.  (N.  S.) 
1''06  (1011).  admitting  expert  comparison  of  finger  prints;  and  so  in  State  v. 
Cerciello.  86  N.  J.  Law,  309.  90  Atl.  1112.  52  L.  R.  A.  (N.  S.)  1010  (1914) ;  Peo- 
ple V.  Roach.  215  N.  Y.  592.  109  N.  E.  618.  Ann.  Cas.  1917A.  410  (1915). 


Sec.  1)  CIRCUMSTANTIAL   EVIDENXE  81' 

CHAPTER  V 
CIRCmiSTANTIAL  EVIDENCE  ^ 


SECTION  1.— CHARACTER.* 


REX  V.  STANNARD  et  al. 
(Central  Criminal  Court,  1837.     7  Carr.  &  P.  673.) 

The  prisoners  were  indicted  for  robbery. 

The  prisoner's  counsel  having  called  witnesses  to  character,  C.  Phil- 
lips, for  the  prosecution,  stated,  that  in  the  course  of  the  day  it  had 
been  intimated  to  the  bar  in  another  place,  that  in  future,  when  the 
prisoner's  counsel  called  witnesses  to  character,  the  counsel  for  the 
prosecution  would  have  the  right,  if  he  chose  to  exercise  it,  of  replying 
in  the  case,  although  no  witnesses  to  fact  were  called ;  and  as  this  had 
never  been  the  practice  in  cases  of  misdemeanor,  he  wished  to  hear 
their  lordships'  opinions  on  the  subject. 

Patteson,  J.  I  am  very  sorry  that  this  question  has  been  raised. 
I  was  in  great  hopes  that  the  same  practice  would  have  been  tacitly 
adopted  by  counsel,  in  cases  of  felony  since  the  late  act,  as  has  hither- 
to prevailed  in  cases  of  misdemeanor.  That  practice,  as  far  as  my 
experience  goes,  has  uniformly  been,  that  when  witnesses  have  been 
called,  on  the  part  of  the  accused,  to  character  only,  and  for  no  other 
purpose,  the  counsel  for  the  prosecution  has  not  addressed  the  jury  in 

1  Denio,  C.  J.,  in  People  v.  Kennedy.  32  N.  Y.  141  (isa5):  "The  lo^c  upon 
which  circumstantial  evidence  is  based  is  this:  We  know,  from  our  experi- 
ence, that  certain  things  are  usual  concomitants  of  each  other.  In  seeking 
to  establish  the  existence  of  one,  where  the  direct  proof  is  deficient  or  un- 
certain, we  prove  the  certain  existence  of  the  co-relative  fact,  and  thus  estab- 
lish with  more  or  less  certainty,  according  to  the  nature  of  the  case,  the 
reality  of  the  principal  fact." 

-  Whether  in  c-ertain  tort  actions  the  character  of  the  plaintiff  may  affect 
the  amount  of  damages,  or  whether  the  bad  character  of  the  plaintiff  is  one 
of  the  facts  going  to  make  up  probable  cause  in  actions  for  malicious  prose- 
cution, are  not  questions  belonging  to  the  law  of  evidence,  and  hence  are  not 
treated  here.  If  good  or  bad  character  does  affect  the  amount  of  damages 
recoverable,  or  is  othervvi.se  legally  important,  it  may  be  proved  as  a  matter 
of  cour.se,  and  the  only  problem  in  evidence  is  the  means  of  proof,  whether 
by  specific  acts,  personal  opinion,  or  general  reputation. 

The  evidential  use  of  character  to  discredit  or  support  a  witness  has  al- 
ready been  considered  in  connection  with  the  impeachment  and  corroboration 
of  witnesses.  For  that  purpose  the  logical  relevancy  of  character  seems  never 
to  have  been  doubted. — Ed. 

HiNT.Ev. — 52 


818  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

reply;  but  I  am  not  aware  of  any  case  in  which  the  right  to  do  so  has 
been  decided  one  way  or  the  other.  I  can  easily  understand  and 
lament  the  painful  situation  in  which  counsel  for  the  prisoner  may  be 
placed,  in  exercising  a  discretion,  whether,  for  the  sake  of  proving  the 
previous  character  of  his  client,  and  having  no  evidence  directly  bear- 
ing upon  the  facts  of  the  case,  he  should  run  the  risk  of  an  ingenious 
reply  from  the  opposite  counsel.  However,  if  I  am  driven  to  give  an 
opinion.  I  must  say  that  I  think  that  the  counsel  for  the  prosecution 
has  a  right  to  reply,  where  any  witnesses  are  called  for  the  defence, 
whether  to  facts  or  to  character.  I  cannot  in  principle  make  any  dis- 
tinction between  evidence  of  facts,  and  evidence  of  character:  the 
latter  is  equally  laid  before  the  jury  as  the  former,  as  being  relevant 
to  the  question  of  guilty  or  not  guilty:  the  object  of  laying  it  before  the 
jury  is  to  induce  them  to  believe,  from  the  improbability  that  a  person 
of  good  character  should  have  conducted  himself  as  alleged,  that  there 
is  some  mistake  or  misrepresentation  in  the  evidence  on  the  part  of 
the  prosecution,  and  it  is  strictly  evidence  in"  the  case.  I  am  there- 
fore of  opinion  that  the  counsel  for  the  prosecution  must,  upon  prin- 
ciple, be  at  liberty  to  address  the  jury  in  reply,  where  such  evidence  is 
given.' 


HOPPS  V.  PEOPLE. 
(Supreme  Court  of  Illinois,  1SG3.    31  111.  385,  83  Am.  Dec.  231.) 

William  Hopps  was  indicted  in  the  court  below  for  the  murder  of 
his  wife.  Being  put  upon  his  trial,  the  fact  of  the  killing  was  clear- 
ly established,  and  was  not  controverted  by  the  accused;  but  it  was 
insisted  in  his  behalf,  that  he  was  insane  at  the  time  of  the  commis- 
sion of  the  act  charged,  and  in  reference  to  that  question  voluminous 
proofs  were  made  both  by  the  defense  and  the  prosecution. 

The  trial  below  resulted  in  the  conviction  of  the  prisoner  of  the 
crime  as  charged  in  the  indictment,  and  a  new  trial  being  refused,  he 
brought  the  case  to  this  court  upon  a  writ  of  error.    *     *    * 

Mr.  Justice  BrEEse.'*  *  *  *  He  complains,  first,  that  the  Circuit 
Court  would  not  permit  him  to  give  evidence  of  his  uniform  good 
character  as  a  man  and  a  citizen. 

It  was,  at  one  time,  a  disputed  question,  whether  such  evidence 
could  be  given  in  a  case  where,  as  in  this,  the  homicide  is  not  denied. 
Some  of  the  books  say,  such  evidence,  if  offered,  ought  to  be  restricted 
to  the  trait  of  character  in  issue,  or,  in  other  words,  should  bear  some 
analogy  to  the  nature  of  the  charge.     3  Gr.  Ev.  §  25. 

To  the  same  effect  is  2  Russ.  on  Crimes,  784,  but  yet,  he  says,'  the 
good  character  of  an  accused  party  is  an  ingredient  which  should  al- 

8  Opinion  of  Willlani.s,  J.,  omitted. 

*  SlatCMJicnt  condensed.  Part  of  opinion  of  Breese,  J.,  and 'the  opinions  of 
Caton,  C.  J.,  and  Walkcjr,  J.,  are  ondtted. 


Sec.  1)  CHARACTER  81^^ 

ways  be  submitted  to  the  consideration  of  the  jury,  along  with  the 
other  facts  of  the  case.     Id.  785. 

In  a  case  where  the  defense  is  insanity,  we  cannot  have  a  doubt,  that 
evidence  of  uniform  good  character  as  a  man  and  a  citizen,  is  proper 
for  the  jury  to  consider ;    whether  a  person  whose  character  has  been 
uniformly  good,  has,  in  a  sane  moment,  committed  the  crime  charged. 
It  is  undoubtedly  true,  a  sane  man,   whose  previous  character  has 
been  unexceptionable,  may  commit  an  atrocious  homicide,  no  doubt 
may  exist  of  the  fact,  yet,  under  his  plea  of  insanity,  should  he  not  be 
entitled  to  all  the  benefit  which  may  be  derived  from  the  fact  of  uni- 
form good  character,  as  tending,  slightly,  it  may  be,  to  the  conclu- 
sion that  he  could  not  have  been  sane  at  the  time  the  deed  was  done. 
Generally,  a  person  of  good  character  does  not,  of  a  sudden,  fall  from 
a  high  position  to  the  commission  of  outrageous  crimes;    should  he 
do  so,  would  it  be  an  unnatural  or  forced  inference,  that  he  may  have 
been  affected  with  insanity  at  the  time?     But  be  this  as  it  may,  it 
seems  to  be  now  settled,  that  such  evidence  in  capital  cases,  is  ad- 
missible.    In  the  case  of  the  Commonwealth  v.  Hardy,  2  Mass.  317, 
which  was  a  capital  case.  Parsons,  C.  J.,  said,  a  prisoner  ought  to  be 
permitted  to  give  in  evidence  his  general  character  in  all  cases.     Sew- 
ell  and  Parker,  justices,  said,  they  were  not  prepared  to  admit  that 
testimony  of  general  character  should  be  admitted  in  behalf  of  the 
defendant,   in   all   criminal  prosecutions;    but,   they  were   clearly   of 
opinion,  that  it  might  be  admitted  in  capital  cases  in  favor  of  life. 
The  same  rule  was  stated  in  the  case  of  the  Commonwealth  v.  Webster, 
5  Cush.  325,  52  Am.  Dec.  711.     The  Court  there  say,  it  is  the  privilege 
of  the  accused,  to  put  his  character  in  issue  or  not. 

In  2  Bennett  &  Heard's  Leading  Cases,  159,  and  notes,  the  cases 
are  collected  and  commented  on,  in  which  this  rule  is  recognized. 

In  the  case  of  People  v.  Vane,  12  Wend.  (N.  Y.)  78,  the  court  held, 
that  evidence  of  the  good  character  of  the  defendant  on  the  trial  of 
an  indictment,  is  always  admissible,  though  it  cannot  avail  when  the 
evidence  against  him  is  positive  and  unimpeached ;  but  when  the  evi- 
dence is  circumstantial,  or  comes  from  a  suspected  or  impeached  wit- 
ness, proof  of  good  character  is  important. 

We  think,  at  least  in  view  of  the  defense  relied  on,  the  evidence  of 
the  prisoner's  uniform  correct  bearing,  as  a  man  and  a  citizen,  should 
have  been  made  known  to  the  jury.  A  good  character  is  a  most  pre- 
cious possession,  and  it  ought  to  be  permitted,  in  favor  of  hfe  at 
least,  to  go  to  the  jury.    *    *    * 

Judgment  reversed. 


820  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 


EDGINGTON  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States.  1806.     164  U.  S.  361,  17  Sup.  Ct.  72,  41 

L.  Ed.  467.) 

At  the  March  tenn,  1895,  in  the  district  court  of  the  United  States 
for  the  Southern  district  of  Iowa,  Avington  A.  Edgington  was  tried 
and  found  guilty  of  the  crime  of  making  a  false  deposition,  on  April 
13,  1894,  in  aid  of  a  fraudulent  pension  claim  on  behalf  of  his  mother, 
Jennie  M.  Edgington,  claiming  to  be  the  widow  of  Francis  M.  Edging- 
ton. 

On  April  30,  1895,  judgment  was  pronounced  against  the  defendant 
that  he  pay  a  fine  of  $1,500  and  the  costs,  and  that  he  stand  com- 
mitted to  jail  until  said  fine  and  costs  should  be  paid.  A  writ  of  er- 
ror was  prayed  for  and  allowed. 

Mr.  Justice  Shiras.^  *  *  *  -yy^  ^^^  constrained  to  sustain  the 
assignments  which  complain  of  the  exclusion  of  testimony  offered 
to  show  defendant's  general  reputation  for  truth  and  veracity.  It  is 
not  necessary  to  cite  authorities  to  show  that,  in  criminal  prosecu- 
tions, the  accused  will  be  allowed  to  call  witnesses  to  show  that  his 
character  was  such  as  would  make  it  unlikely  that  he  would  be  guilty 

,  of  the  particular  crime  with  which  he  is  charged.  And  as  here  the 
defendant  was  charged  with  a  species  of  the  crimen  falsi,  the  rejected 
evidence  was  material  and  competent.  This,  indeed,  is  conceded  in 
the  brief  for  the  government;  but  it  is  argued  tliat,  as  the  learned 
judge,  in  overruling  the  offer  of  the  evidence,  observed  that  the  testi- 
mony might  "become  proper  later  on,"  he  was  merely  passing  on  the 
order  of  proof,  his  discretion  in  respect  to  which  is  not  reversible. 

It  is  possible,  as  suggested,  that  the  judge  thought  that  such  evi- 
dence should  not  be  offered  until  it  appeared  that  the  defendant  had 
himself  testified.  But  this  would  show  a  misconception  of  the  reason 
why  the  evidence  was  competent.  It  was  not  intended  to  give-  weight 
to  the  defendant's  personal  testimony  in  the  case,  but  to  establish  a 
general  character  inconsistent  with  guilt  of  the  crime  with  which 
he  stood  charged ;    and  the  evidence  was  admissible,  whether  or  not 

I  the  defendant  himself  testified.  When  testimony,  competent  and  ma- 
terial,  has   been  offered   and  erroneously  rejected,   the  error  is  not 

\  cured  by  a  conjecture  that,  if  offered  at  a  subsequent  period  in  the 

I  trial,  the  evidence  might  have  been  admitted.  It  should  also  be  observ- 
ed, that,  when  a  subsequent  offer  to  the  same  effect  was  made,  the 
judge  rejected  it  without  qualification. 

There  was  likewise  error  in  that  portion  of  the  charge  in  which  the 
judge  instructed  the  jury  as  to  the  effect  that  they  should  give  to  the 
testimony  showing  the  defendant's  good  character. 

6  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  1)  CHARACTER  821 

It  is  proper  to  give  the  judge's  own  language : 

"Some  testimony  has  been  given  you  touching  the  good  character  of 
the  defendant.  When  a  man  is  charged  with  crime,  the  courts  of  the 
United  States  permit  this  question  of  good  character  to  be  introduced 
to  go  to  the  jury.  The  theory,  as  I  view  it,  is  a  wise  one.  If  a  man, 
in  the  community  where  he  hves,  by  his  incoming  and  outgoing  among 
his  neighbors,  has  built  up  in  the  years  of  his  Hfe,  be  they  compara- 
tively few  or  many,  a  character  among  them  for  good  morals,  which 
includes  the  uprightness  and  excellency  of  our  general  citizenship,  it 
is  right  that  the  jury  should  know  that  fact.  It  is  of  value  to  them, 
in  conflicting  cases,  in  determining  points  in  the  case;  and  yet,  gen- 
tlemen, I  have  to  say  to  you  that  evidence  of  good  character  is  no  de- 
fense against  crime  actually  proven.  If  the  defendant  in  this  case  is 
proven  guilty  of  crime  charged,  any  good  character  borne  by  him  in 
his  community  is  no  defense.  It  must  not  change  your  verdict;  for 
the  experience  of  mankind,  of  all  of  us,  teaches  us  that  men  reputed 
to  be  of  good  moral  character  in  a  community — Unfortunately,  some- 
times, we  find  they  are  sadly  different  from  that  which  they  are  re- 
puted to  be,  and  that  they  are  committers  of  crime.  Yet  the  good 
character  goes  to  the  jury  with  special  force  wherever  the  commission 
of  the  crime  is  doubtful.  If  your  mind  hesitates  on  any  point  as  to  the 
guilt  of  this  defendant,  then  you  have  the  right  and  should  consider 
the  testimony  given  as  to  his  good  character,  and  it  becomes,  as  I  have 
suggested,  or  may  be,  of  great  importance  in  the  minds  of  the  jury  in 
the  matters  of  doubt."     *     *     * 

It  is  impossible,  we  think,  to  read  the  charge,  without  perceiving 
that  the  leading  thought  in  the  mind  of  the  learned  judge  was  that 
evidence  of  good  character  could  only  be  considered  if  the  rest  of  the 
evidence  created  a  doubt  of  defendant's  guilt.  He  stated  that  such 
evidence  "is  of  value  in  conflicting  cases,"'  and  that,  if  the  mind  of 
the  jury  "hesitates  on  any  point  as  to  the  guilt  of  the  defendant,  then 
you  have  the  right  and  should  consider  the  testimony  given  as  to  his 
good  character." 

Whatever  may  have  been  said  in  some  of  the  earlier  cases,  to  the 
effect  that  evidence  of  the  good  character  of  the  defendant  is  not  to 
be  considered  unless  the  other  evidence  leaves  the  mind  in  doubt,  the  , 
decided  weight  of  authority  now  is  that  good  character,  when  con- 
sidered in  connection  with  the  other  evidence  in  die  case,  may  gener- 
ate a  reasonable  doubt.  The  circumstances  may  be  such  that  an  es- 
tablished reputation  for  good  character,  if  it  is- relevant  to  the  issue, 
would  alone  create  a  reasonable  doubt,  although,  without  it,  the  other 
evidence  would  be  convincing, 

Jupitz  V.  People,  34  111.  516,  was  a  case  where  the  defendant  was  in- 
dicted for  having  received  goods  knowing  them  to  have  been  stolen, 
and  his  counsel  requested  the  trial  judge  to  instruct  the  jury  that  the 
evidence  of  the  good  character  of  the  defendant  for  honesty  should 


822  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

have  great  weight  in  determining  as  to  his  guilt  or  innocence.  This 
was  qualified  by  the  court  by  the  addition  of  these  words :  "If  the 
jury  believe  there  is  any  doubt  of  his  guilt."  This  was  held  to  be  er- 
ror, and  the  supreme  court  of  Illinois  used  the  following  language : 

"The  instruction,  as  asked,  may  be  objectionable,  on  account  of  the 
epithet  'great' ;  but  as  that  was  not  the  ground  of  the  qualification,  but 
on  the  ground,  as  is  inferable,  that  the  court  did  not  consider  evidence 
of  good  character  of  any  weight  except  in  a  doubtful  case.  The  more 
modern  decisions  go  to  the  extent  that,  in  all  criminal  cases,  whether 
the  case  is  doubful  or  not,  evidence  of  good  character  is  admissible 
on  the  part  of  the  prisoner.  *  *  *  We  can  hardly  imagine  a  case 
where  evidence  of  a  good  character  was  a  more  important  element 
of  defense  than  this,  and  in  the  language  of  the  instruction  was  en- 
titled to  great  weight.  Proof  of  uniform  good  character  should  raise 
a  doubt  of  guilty  knowledge,  and  the  prisoner  would  be  entitled  to 
the  benefit  of  that  doubt.  Proof  of  this  kind  may  sometimes  be  the  only 
mode  by  which  an  innocent  man  can  repel  the  presumption  arising  from 
the  possession  of  stolen  goods.  It  is  not  proof  of  innocence,  although 
it  may  be  sufficient  to  raise  a  doubt  of  guilt.  The  court  seemed  to 
think  it  was  entitled  to  no  weight,  unless,  taking  the  language  used  in 
its  most  favorable  aspect,  there  was  doubt  of  his  guilt.  A  strong 
prima  facie  case  was  made  out  by  the  prosecution,  but  it  was  not 
conclusive.  If  the  court  had  told  the  jury  that  his  good  character 
should  be  taken  into  consideration  by  them,  and  was  entitled  to  much 
weight,  a,  reasonable  doubt  of  the  prisoner's  guilt  might  have  been 
raised,  which  would  have  resulted  in  his  acquittal." 

Similar  conclusions  were  reached  in  Com.  v.  Leonard.  140  Mass, 
473,  4  N.  E.  96".  54  Am.  Rep.  485  ;  Heine  v.  Com.,  91  Pa.  145  ;  Rem- 
sen  v.  People,  43  N.  Y.  6;  People  v.  Garbutt,  17  Mich.  28,  97  Am. 
Dec.  162;   1  Whart.  Cr.  Law,  §  636. 

We  find  no  errors  disclosed  by  the  other  assigimients. 

The  judgment  of  the  court  below  is  reversed,  and  the  cause  remand- 
ed, with  directions  to  set  aside  the  verdict  and  award  a  new  trial. 

Judgment  reversed.® 

Mr.  Justice  Brewer  concurs  in  the  judgment.  Mr.  Justice  Brown 
dissents. 

6  That  the  error  of  the  trial  judge  in  the  principal  case  probably  resulted 
from  a  misundorstanding  of  the  chargos  in  some  of  the  earlier  cases,  when 
judges  were  in  the  habit  of  advising  juries  more  freely  on  matters  of  fact,  see 
State  V.  Henry,  50  N.  C*  G.'^  (1857). 

For  a  further  refinement  to  the  effect  that  "good  character  may  create  a 
doubt  against  positive  evidence,  but  only  when  in  the  judgment  of  the  jury 
the  character  is  so  good  as  to  raise  a  doubt  as  to  the  truthfulness  or  oorrect- 
nes.s  of  the  positive  evidence,"  see  People  v.  Goodman,  2S3  111.  414.  119  N.  E. 
429  (1918),  citing  People  v.  Hughson,  154  N.  Y.  153,  47  N.  E.  1092  (1897). 


Sec.  1)  CHARACTER  823 


HARPER  V.  UNITED  STATES. 

(Circuit  Court  of  Appeals,  Eighth  Circuit,  1909.     170  Fed.  385,  95  C.  C.  A. 

555.) 

RiNER,  District  Judge.^  At  the  October  term  of  the  United  States 
Court  for  the  Northern  District  of  Indian  Territory,  sitting  at  Vinita, 
the  plaintiff  in  error,  hereafter  called  the  defendant,  was  indicted  for 
making  a  false  entry  in  a  report  to  the  Comptroller  of  tlie  Currency, 
showing  the  resources  and  liabilities  of  the  First  National  Bank  of 
Miami,  Ind.  T.     *     *     * 

The  fourth  error  assigned  is  that  the  trial  court  erred  in  not  per- 
mitting W.  P.  Gatewood,  a  witness  for  the  defendant,  to  testify  to 
the  moral  character  of  the  defendant.  The  witness  was  permitted 
to  testify  that  he  had  known  defendant  for  about  six  years ;  that  he 
knew  his  reputation  for  honesty  during  the  time  he  resided  at  Vinita, 
and  that  it  was  good,  but  that  he  did  not  know  his  reputation  for  hon- 
esty during  the  time  he  had  resided  at  Miami.  The  question  which 
the  court  declined  to  permit  him  to  answer  was :  "Are  you  acquainted 
with  his  general  reputation  in  the  neighborhood,  during  the  time  he 
resided  here,  for  morality  and  sobriety?"  Objection  was  made  to 
this  question,  and  the  objection  sustained.  Gatewood  and  three  other 
witnesses  were  allowed  to  testify  to  the  general  reputation  of  the 
defendant,  in  the  neighborhood  in  which  he  lived,  for  truthfulness, 
veracity  and  honesty,  and,  within  the  rule  stated  by  Greenleaf,  vol.  3, 
§  25,  "Evidence,  when  admissible,  ought  to  be  restricted  to  the  trait  of 
character  which  is  in  issue;  or,  as  it  is  elsewhere  expressed,  ought  to 
bear  some  analogy  and  reference  to  the  nature  of  the  charge;  it  being 
obviously  irrelevant  and  absurd,  on  a  charge  of  stealing,  to  inquire 
into  the  prisoner's  loyalty ;  or,  on  a  trial  for  treason,  to  inquire  into 
his  character  for  honesty  in  his  private  dealings" — we  think  the 
court  committed  no  error  in  ruhng  out  the  answer  to  this  ques- 
tion.    *     *     * 

Judgment  affirmed.* 

7  Part  of  opinion  of  Riner,  District  Judge,  the  concun*ing  opinion  of  Adams 
Circuit  Judge,  and  dissenting  opinion  of  Sanborn,  Circuit  Judge,  are  omitted. 

8  And  so  in  Wistand  v.  People.  218  111.  323.  75  N.  E.  891  (1905),  where,  on  a 
prosecution  for  statutory  rape,  the  defendant  sought  to  prove  his  good  char- 
acter for  peace. 


S2i  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

PEOPLE  V.  HINKSMAN. 

(Court  of  Appeals  of  New  York,  190S.     192  N.  Y.  421,  S5  N.  E.  G7G.) 

Werner,  J.*  The  defendant  appeals  from  a  judgment  convicting 
him  of  the  crime  of  murder  in  the  first  degree.  The  charge  set  forth 
in  the  indictment  is  that  on  the  30th  day  of  November,  1905,  the 
defendant  did  feloniously,  with  premeditation  and  deliberation,  shoot 
Samuel  Hinksman  with  a  shotgun,  inflicting  wounds  from  which  the 
victim  died  on  the  following  day.     *     *     * 

It  appears  that  the  defendant  had  been  called  as  a  witness  in  his 
own  behalf.  He  had  stated,  in  some  detail,  the  history  of  his  life,- and 
had  specifically  denied  the  more  serious  of  the  circumstances  calcu- 
lated to  connect  him  with  the  shooting  of  his  father.  Just  at  the  con- 
clusion of  his  direct  examination  his  counsel  had  evidently  asked  him 
if  he  had  ever  been  in  any  trouble;  for,  as  the  narrative  of  the  record 
has  it,  the  defendant  testified:  "I  had  a  little  trouble  once.  I  was 
convicted  of  grand  larceny,  second  degree.  That  was  for  stealing 
something.  That  was  the  only  trouble  I  ever  had  in  my  life,  and  it 
was  three  years  ago.  Sentence  was  suspended  on  me.  I  have  been 
a  good  boy  ever  since."  Upon  the  bit  of  testimony  just  quoted,  and 
after  the  defendant  had  rested  his  case,  the  prosecution  claimed  the 
right  to  give  evidence  as  to  the  defendant's  general  reputation.  The 
defense  objected;  but  the  court  sustained  the  contention  of  the  pros- 
ecution, and  admitted  the  evidence.  Several  of  the  influential  men  of 
that  vicinity  testified  that  the  defendant's  general  reputation  was  bad, 
and  this  evidence  was  dwelt  upon,  as  has  been  stated,  with  much  force 
in  the  address  of  the  district  attorney  to  the  jury. 

The  spur  of  a  strong  imagination  is  hardly  necessary  to  convince  the 
average  person  of  intelligence  that  evidence  of  general  bad  character, 
produced  against  a  defendant  charged  with  the  commission  of  a  crime, 
can  never  be  helpful  to  the  accused,  and,  in  a  case  where  the  oppos- 
ing facts  are  very  evenly  balanced,  or  the  direct  case  against  him  is 
weak,  such  evidence  may  be  the  factor  which  determines  the  result 
against  him.  In  the  very  nature  of  things  must  this  be  true  when 
the  evidence  is  purely  circumstantial.  It  may  be  taken  for  granted, 
therefore,  that  the  evidence  tending  to  establish  the  defendant's  bad 
reputation  was  harmful  to  him,  and  the  only  question  to  be  considered 
is  whether  it  was  competent.  Briefly  stated,  the  contention  of  the 
learned  prosecutor  is  that  the  defendant  made  this  evidence  compe- 
tent by  voluntarily  assuming  the  character  of  a  witness  in  his  own 
behalf.  The  defendant  insists,  however,  that  his  character  could  not 
be  put  in  issue  until  he  did  it  himself ;  that  by  becoming  a  witness 
he  did  not  proffer  for  scrutiny  his  general  character,  but  merely  his 
reputation  for  truthfulness;    and  that  the  very  scant  reference  in  his 

0  Part  of  opinion  of  Werner,  J.,  and  the  dissenting  opinion  of  Gray,  J., 
omitted. 


Sec,  1)  CHARACTER  825 

testimony  to  his  conduct  subsequent  to  his  conviction  of  larceny  and 
prior  to  the  homicide  did  not  open  the  door  to  an  investigation  of  his 
general  character.     Stephen,  in  his  treatise  on  the  Law  of  Evidence, 
says  that  the  word  "character,"  when  used  in  the  sense  in  which  it  is 
here  employed,  means  reputation,  as  distinguished   from  disposition, 
and  that,  of  course,  is  the  general  understanding  of  the  profession. 
The  rule  laid  down  by  that  learned  author  upon  the  subject  under  dis- 
cussion  is   that   "in  criminal   proceedings    the    fact    that   the   person 
accused  has  a  good  character  is  deemed  to  be  relevant,  but  the  fact 
that  he  has  a  bad  character  is  deemed  to  be  irrelevant,^''  unless  it  is  ' 
itself  a  fact  in  issue,  or  unless  evidence  has  been  given  that  he  has  a  * 
good  character,  in  which  case  evidence  that  he  has  a  bad  character  J 
is  admissible."     Stephen's  Digest  of  Ev.  (2d  Ed.)  p.  158. 

This  short,  yet  comprehensive,  statement  embodies  the  rule  as  we 
believe  it  to  have  existed  in  this  state  both  before  and  since  the  law 
has  made  it  competent  for  an  accused  person  to  be  a  witness  in  his 
own  behalf.  Other  learned  writers  on  the  law  of  evidence  are  cred- 
ited, however,  with  having  added  to  that  rule  a  suggestion  which  has 
given  rise  to  the  contention  at  bar.  The  rule  as  stated  in  Elliott  on 
Evidence  (volume  4,  §  2721)  is  that  the  prosecution  cannot  give  evi- 
dence of  a  defendant's  bad  character  "unless  he  has  introduced  evi- 
dence of  good  character,  except  where  he  is  a  witness,  in  which  case 
such  evidence  is  admissible  to  impeach  him,  as  in  the  case  of  other 
witnesses."    *    *    * 

Logically  a  defendant  who  voluntarily  testifies  in  his  own  behalf  oc- 
cupies a  dual  position.  He  is  at  once  a  party  and  a  witness,  and  is 
entitled  to  the  rights  and  privileges  of  each.  As  a  party  he  need  not 
testify  at  all.  If  he  deems  it  prudent  to  remain  silent,  no  presump- 
tion is  to  be  indulged  against  him.  If  he  prefers  to  testify,  his  gen- 
eral character  is  safe. from  attack  until  he  puts  it  in  issue  by  himself 
introducing  evidence  relating  to  it.  But  when  he  assumes  the  char- 
acter of  a  witness  he  exposes  himself  to  the  legitimate  attacks  which 
May  be  made  upon  any  witness.  Other  witnesses  may  be  called  to 
impeach  his   credibility  by   showing  that  his   general  reputation   for 

10  Willes,  J.,  in  Reg.  v.  Rowton,  10  Cox,  25  (1865):  "  »  •  *  It  is  evidence 
strictly  relevant  to  the  issue,  but  such  evidence  is  not  admissible  upon  the 
part  of  the  prosecution  for  the  reasons  stated  by  my  brother  Martin,  because 
if  the  prosecution  were  allowed  to  go  into  such  evidence  we  should  have  the 
whole  life  of  the  prisoner  ripped  up,  and  as  has  been  witnessed  in  the  pro- 
ceedings of  jurisdictions  where  such  evidence  is  admissible  upon  a  charge 
preferred,  you  might  begin  by  showing  that  when  a  boy  at  school  he  had 
robbed  an  orchard  and  so  read  the  rest  of  his  conduct  and  the  whole  of  his 
life ;  and  the  result  would  be  that  a  man  on  his  trial  would  be  overwhelmed 
by  prejudice  instead  of  being  convicted  on  affirmative  evidence,  which  the  law 
of  this  country  requires.  The  prosecution  is  prevented  from  giving  such  evi- 
dence for  reasons  rather  of  policy  and  humanity  than  because  proof  that  the 
prisoner  was  a  bad  character  is  not  relevant  to  the  issue.— it  is  relevant  to 
the"i^siie  but  it  is  expedient  (?)  for  the  sake  of  letting  in  all  the  evidence 
which  might  possibly  throw  light  upon  the  subject:  you  might  arrive  at  jus- 
tice in  one  case  and  you  might  do  injustice  in  ninety-nine." 


826  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

veracity  is  bad,  or  he  may  upon  cross-examination  be  interrogated  as 
to  any  specific  act  or  thing  which  may  affect  his  character  and  tend  to 
show  that  he  is  not  worthy  of  behef.  This  latter  phase  of  the  well- 
known  rule  is  seized  upon  by  the  learned  district  attorney  to  sustain 
the  reception  of  the  evidence  tending  to  establish  the  defendant's  gen- 
eral bad  character.  He  argues  that,  if  a  defendant  who  testifies  in 
his  own  behalf  can  be  subjected  to  a  cross-examination  which  demol- 
ishes his  presumptively  good  character  and  shows  it  to  be  utterly  bad, 
it  is  in  effect  nothing  more  nor  less  than  attacking  his  general  char- 
acter. That  may  be  precisely  the  effect  of  a  cross-examination  which 
demonstrates  that  a  defendant's  character  is  bad.  The  dift"erence  is 
rmore  in  the  method  than  in  the  result.  If  a  man's  bad  character  is 
proven  by  his  own  admissions  of  specified  acts,  a  jury  will  usually 
have  no  difficulty  in  determining  the  extent  to  which  his  credibility  is 
impaired.  But  when  the  conclusions  of  a  jury  depend  entirely  upon 
the  opinions  of  witnesses  who  are  testifying  to  a  defendant's  general 
reputation  based  upon  the  speech  of  others,  and  not  to  any  concrete 
'fact  of  personal  knowledge,  the  method  is,  to  say  the  least,  far  less 
reliable,  although  the  result  in  a  particular  case  may  be  just  the  same. 
Proof  of  general  reputation  by  hearsay  is  one  of  the  exceptions  to 
the  general  rule  that  facts  and  not  conclusions  constitute  legal  evi- 
dence. It  is  one  of  those  unsatisfactory  exceptions  which  is  recog- 
nized as  a  makeshift,  and  is  tolerated  only  because  we  do  not  seem  to 
be  able  to  improve  upon  it.  Much  might  be  written  upon  the  reasons 
for  this  exception,  and  much  more  about  the  considerations  which  have 
led  the  courts  in  some  other  jurisdictions  to  hold  that  a  defendant  who 
testifies  in  a  criminal  action  or  proceeding  against  him  may  be  im- 
peached by  evidence  tending  to  establish  his  general  bad  character. 
It  could  not  be  done,  however,  without  considerable  prolixity,  and  it  is 
doubtful  whether  it  would  be  profitable.  We  shall  content  ourselves, 
therefore,  with  a  few  obsen^ations  upon  the  authorities  ^^  in  this  state 
which  are  relied  upon,  respectively,  by  the  district  attorney  and  the 

counsel   for  the  defendant  in  their  contentions   upon   this  question. 

*    *    * 

We  think  that  evidence  of  general  bad  character,  which  is  nothing 
but  evidence  of  gener.al  reputation,  should  not  be  considered  compe- 
tent to  decide  the  issue  whether  a  defendant  who  testifies  in  his  own 
behalf  is  worthy  of  belief,  any  more  than  evidence  of  a  reputation  for 
untruthfulness  should  be  directly  decisive  of  his  guilt  or  innocence. 
A  man  may  have  the  reputation  of  being  a  liar,  and  yet  scorn  to  steal 
sheep ;  and  by  the  same  rule  one  who  cannot  resist  the  temptation  to 
commit  larceny  may  never  lie  about  it.     It  is  true,  of  course,  that  if 

1 1  In  tbe  omitted  pa.ssage,  the  court  reviowed  People  v.  Welister,  139  N.  Y. 
73,  34  N.  K.  730  (1893) ;  Hrandon  v.  Poortle,  42  X.  Y.  205  (1870) ;  People  v. 
Giblin,  115  N.  Y.  190,  21  N.  JO.  1002.  4  Ix  I{.  A.  757  (1S89);  People  v.  McCor- 
mick.  135  N.  Y.  003,  32  N.  E.  20  (1892) ;  Peoitle  v.  Casey,  72  N.  Y.  393  (1878) ; 
Adams  v.  I'eople,  9  Iluri,  89  (1870);  Burdick  v.  People,  58  P.arb.  51  (1870). 


Sec.  1)  CHARACTER  827 

a  man  is  proven  a  liar  his  statement  that  he  did  not^commit  a  par- 
ticular crime  will  be  much  Jess  likely  to  command  belief  than  it  would 
if  he  were  reputed  to  be  a  truthful  man.  It  may  be  equally  true  that 
proof  of  a  man's  reputation  for  general  depravity  may  involve  his 
credibility ;  but  it  also  involves  much  more.  In  addition  to  under- 
mining his  credit  for  veracity,  it  stamps  him  as  a  generally  bad  man, 
who  would  be  much  more  likely  to  commit  a  particular  crime  than  he 
whose  reputation  is  good.  That  is  precisely  the  evil  which  it  was  de- 
signed to  thwart  with  the  rule  that  a  defendant's  general  reputation 
cannot  be  shown  against  him  until  he  puts  it  in  issue  himself.  For 
these  reasons  we  must  decline  to  follow  the  Cases  of  Burdick  and 
Adams,  above  referred  to,  in  so  far  as  they  favor  the  doctrine  that 
evidence  of  a  defendant's  general  bad  reputation  is  competent  simply 
because  he  is  a  witness  in  his  own  behalf.    *    *    * 

Having  concluded  that  it  was  error  for  the  trial  court  to  admit  the 
evidence  of  the  defendant's  general  bad  character  under  the  circum- 
stances above  stated,  we  have  no  hesitation  in  deciding  that  the  dis- 
trict attorney's  references  to  the  same  were  clearly  unauthorized  and 
very  prejudicial.     *     *     *  « 

Judgment  reversed. 


COMMONWEALTH  v.  MADDOCKS. 
(Supreme  Judicial  Court  of  Massachusetts,  1910.    207  Mass.  152,  93  N.  E.  253.) 

Complaint,  received  and  sworn  to  in  the  District  Court  of  Eastern 
Essex  on  November  26,  1909,  charging  the  defendant  with  keeping 
and  maintaining  a  tenement  in  Gloucester  used  by  him  for  the  illegal 
sale  and  the  illegal  keeping  of  intoxicating  liquors  between  May  1 
and  November  26,  1909. 

At  the  trial  in  the  Superior  Court  before  Raymond,  J.,  it  appeared 
that  the  defendant  was  a  retail  druggist  at  Gloucester,  licensed  as  a 
pharmacist  and  holding  a  certificate  of  fitness,  issued  under  the  stat- 
ute on  the  subject,  authorizing  him  to  sell  intoxicating  liquors  on 
physicians'  prescriptions.  The  premises  consisted  of  a  store  and  a  cel- 
lar underneath,  the  store  being  an  ordinary  drug  store  and  equipped 
as  such.     *     *     * 

During  the  trial  of  the  case  the  defendant  introduced  the  evidence 
of  several  witnesses  who  testified  that  the  reputation  of  the  defendant 
in  the  community  as  to  his  general  character  was  good.  John  Kar- 
cher,  one  of  the  witnesses  who  so  testified,  was  asked  upon  cross-ex- 
amination by  the  district  attorney  as  to  the  reputation  of  the  defend- 
ant in  the  community  in  regard  to  the  sale  of  intoxicating  liquors. 
To  this  question  the  defendant  objected.  The  judge  overruled  the  ob- 
jection and  the  defendant  excepted.  The  witness  then  answered,  "I 
don't  know." 


828  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

The  commonwealth  then  called  to  the  stand  the  county  treasurer, 
David  I.  Robinson  of  Gloucester,  and  asked  him  the  following-  ques- 
tion :  "Do  you  know  what  is  the  reputation  of  the  defendant  in  the 
community  as  to  his  being  a  law-abiding  person  in  relation  to  the  liq- 
uor law?"  To  this  question  the  defendant  objected.  The  judge  over- 
ruled the  objection  and  the  defendant  excepted.  The  witness  then 
answered,  "I  do."  The  district  attorney  then  asked,  "What  is  it?" 
To  this  question  the  witness  answered,  "It  is  bad."  To  this  question 
and  answer  the  defendant  also  objected.  The  judge  overruled  the 
objection  and  the  defendant  excepted.     *     *     * 

Sheldon,  J.^^  *  *  *  We  cannot  say  that  after  the  defendant 
had  put  his  general  reputation  in  issue,  the  commonwealth  might  not 
show  in  reply  that  his  reputation  as  to  being  a  law-abiding  person  in 
relation  to  the  liquor  law  was  bad,  although  we  intimate  no  opinion 
as  to  the  particular  question  which  was  excepted  to.  The  introduc- 
tion of  such  evidence  would  of  course  call  for  great  care  on  the  part 
of  the  judge  to  see  that  the  jury  should  not  use  it  as  evidence  of  guilt, 
but  should  treat  it  merely  as  meeting  and  nulHfying  (so  far  as  it  might 
havef  any  effect)  the  evidence  of  the  defendant's  good  reputation.  But 
it  was  not  incompetent.  It  was  so  held  in  State  v.  Knapp,  45  N.  H. 
148,  157;  Balkum  v.  State,  115  Ala.  117,  22  South.  532.  67  Am.  St. 
Rep.  19,  and  State  v.  Thornhill,  174  AIo.  364,  74  S.  W.  832.  See  the 
discussion  in  1  Wigmore  on  Ev.  §  59  et  seq.  The  testimony  excluded 
in  Commonwealth  v.  Nagle,  157  Mass.  555,  32  N.  E.  861,  was  as  to 
the  defendant's  habits  and  course  of  action,  not  as  to  his  reputation 
itself.     *     *     * 

Exceptions  su.stained  (on  other  points).^ ^ 


GREER  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1918.     245  U.  S.  559,  38  Sup.  Ct.  209, 

62  L.  Ed.  469.) 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  Court. 

The  petitioner  was  tried  for  introducing  whiskey  from  without  the 
State  into  that  part  of  Oklahoma  that  formerly  was  within  the  Indian 
Territory.  He  was  convicted  and  sentenced  to  fine  and  imprison- 
ment. Material  error  at  the  trial  is  alleged  because  the  Court  re- 
fused to  instruct  the  jury  that  the  defendant  was  presumed  to  be  a 
person  of  good  character,  and  that  the  supposed  presumption  should 
be  considered  as  evidence  in  favor  of  the  accused,  with  some  further 
amplifications  not  necessary  to  be  repeated.  The  court  did  instruct 
the  jury  that  the  defendant  was  presumed  to  be  innocent  of  the  charge 

12  statement  condensed  and  part  of  opinion  omitted. 

13  On  the  general  question  of  the  right  of  the  prosecution  to  rebut  evidence 
of  good  character,  see  Ifog.  v.  Rowton,  10  Cox,  Cr.  Cas.  25  (1SG5). 


Sec.  1)  cnARACTEB  829 

until  his  guilt  was  established  beyond  a  reasonable  doubt,  and  that  the 
presumption  followed  him  throughout  the  trial  until  so  overcome. 
The  Circuit  Court  of  Appeals  sustained  the  Court  below.  240  Fed. 
320,  153  C.  C.  A.  246.  This  judgment  was  in  accordance  with  a  care- 
fully reasoned  earlier  decision  in  the  same  circuit.  Price  v.  United 
States,  218  Fed.  149,  132  C.  C.  A.  1,  L.  R.  A.  1915D,  1070,  with  an 
acute  statement  in  United  States  v.  Smith  (D.  C.)  217  Fed.  839,  and 
with  numerous  state  cases  and  text  books.  But  as  other  Circuit 
Courts  of  Appeal  had  taken  a  different  view,  Mullen  v.  United  States, 
106  Fed.  892,  46  C.  C.  A.  22 ;  Garst  v.  United  States,  180  Fed.  339, 
344^  345,  103  C.  C.  A.  469,  also  taken  by  other  cases  and  text  books, 
it  becomes  necessary  for  this  Court  to  settle  the  doubt. 

Obviously  the  character  of  the  defendant  was  a  matter  of  fact, 
which,  if  investigated,  might  turn  out  either  way.  It  is  not  established 
as  matter  of  law  that  all  persons  indicted  are  men  of  good  character. 
If  it  were  a  fact  regarded  as  necessarily  material  to  the  main  issues  it 
would  be  itself  issuable,. and  the  Government  would  be  entitled  to  put 
in  evidence  whether  the  prisoner  did  so  or  not.  As  the  Government 
cannot  put  in  evidence  except  to  answer  evidence  introduced  by  the 
defence  the  natural  inference  is  that  the  prisoner  is  allowed  to  try  to 
prove  a  good  character  for  what  it  m.ay  be  worth,  but  that  the  choice 
whether  to  raise  that  issue  rests  with  him.  The  rule  that  if  he  prefers 
not  to  go  into  the  matter  the  Governm.ent  cannot  argue  from  it  would 
be  meaningless  if  there  were  a  presumption  in  his  favor  that  could  not 
be  attacked.  For  the  failure  to  put  on  witnesses,  instead  of  suggest- 
ing unfavorable  comment,  would  only  show  the  astuteness  of  the  pris- 
oner's counsel.  The  meaning  must  be  that  character  is  not  an  issue 
in  the  case  unless  the  prisoner  chooses  to  make  it  one ;  otherwise  he 
would  be  foolish  to  open  the  door  to  contradiction  by  going  into  evi- 
dence when  without  it  good  character  would  be  incontrovertibly  pre- 
sumed.   Addison  V.  People,  193  111.  405,  419,  62  N.  E.  235. 

Our  reasoning  is  confirmed  by  the  fact  that  the  right  to  introduce 
evidence  of  good  character  seems  formerly  to  have  been  regarded  as 
a  favor  to  prisoners,  McNally,  Evidence,  320,  which  sufficiently  im- 
plies that  good  character  was  not  presumed.  In  reason  it  should  not 
be.  A  presumption  upoYi  a  matter  of  fact,  when  it  is  not  merely  a  dis- 
guise for  some  other  principle,  means  that  common  experience  shows 
the  fact  to  be  so  generally  true  that  courts  may  notice  the  truth. 
Whatever  the  scope  of  the  presumption  that  a  man  is  innocent  of  the 
specific  crime  charged,  it  cannot  be  said  that  by  common  experience 
the  character  of  most  people  indicted  by  a  grand  jury  is  good. 

It  is  argued  that  the  Court  was  bound  by  the  rules  of  evidence  as 
they  stood  in  1789.  That  those  rules  would  not  be  conclusive  is  suf- 
ficiently shown  by  Rosen  v.  United  States  (January  7,  1918)  245  U.  S. 
467,  38  Sup.  Ct.  148,  62  L.  Ed.  406.  But  it  is  safe  to  believe  that  the 
supposed  presumption  is  of  later  date,  of  American  origin,  and  comes 


830  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

from  overlooking  the  distinction  between  this  and  the  presumption  of 
innocence  and  from  other  causes  not  necessary  to  detail. 

Judgrnent  affirmed. 

Mr.  Justice  jMcKenna  dissents. 


STATE  V.  POTTER. 

(Supreme  Court  of  Kansas,  1S74.    13  Kan.  414.) 

Brewer,  J.^*  The  appellant  was  convicted  in  the  district  court  of 
Atchison  county  of  the  crime  of  murder  in  the  second  degree,  and 
sentenced  to  the  penitentiary  for  ten  years.  From  this  he  has  appeal- 
ed to  this  court,  and  alleges  numerous  errors  in  the  proceedings  of 
tliat  court.  And,  first,  he  complains  that  that  court  erred  in  overruling 
a  motion  to  quash  the  information.  We  do  not  think  the  objections 
made  to  the  information  are  well  founded,  and  hence  see  no  error  in 
the  rulings  on  the  motion  to  quash.  Again,  he  insists  that  the  court 
erred  in  allowing  the  state  to  introduce  evidence  of  the  character  of 
the  deceased  as  a  quiet  and  peaceable  man.  It  appears  that  the  de- 
ceased was  killed  in  an  affray;  that  this  was  the  second  quarrel  upon 
the  same  afternoon  between  the  deceased  and  defendant,  others  par- 
ticipating. The  first  quarrel  took  place  shortly  after  the  parties  left 
Atchison  to  go  to  their  respective  homes,  each  in  his  own  wagon,  and 
with  two  companions.  No  serious  injury  was  done  to  either  of  the 
parties  at  this  time.  At  its  close  the  deceased  drove  ahead  with  his 
wagon,  and  the  parties  lost  sight  of  each  other.  After  driving  some 
miles,  the  deceased  stopped  beside  a  field  where  one  of  his  sons  was  at 
work,  and  while  there  tlie  other  wagon,  with  the  defendant,  came  along. 
The  quarrel  was  resumed,  and  in  it  the  deceased  was  struck  on  tlie 
head  and  elsewhere  with  a  piece  of  a  rail  or  club,  and  so  injured  that 
he  died  shortly  thereafter. 

On  the  trial,  and  before  closing  their  ca.se,  the  prosecution  was 
permitted,  o7er  objection,  to  ask  witnesses,  who  had  testified  that 
they  knew  the  deceased,  this  question:  "State  if  you  knew  his  gen- 
eral reputation  for  being  a  peaceable,  quiet,  and  law-abiding  citizen;" 
and  the  witnesses  testified  that  he  was  a  peaceable,  quiet,  and  law- 
abiding  man.  No  attack  was  made  by  defendant  at  any  time  during 
the  trial  on  the  character  of  the  deceased,  and  no  attempt  to  show  that 
he  was  a  quarrelsome  or  turbulent  man.  The  question,  then,  is  fairly 
presented  whether  the  prosecution,  on  a  trial  for  murder,  may,  in  tlie 
first  instance,  and  as  a  part  of  their  case,  show  the  character  and  repu- 
tation of  the  deceased.  We  do  not  understand  counsel  for  the  state  as 
claiming  that  such  testimony  is  admissible  in  all  cases,  but  only  in  cases 
where  there  is  a  doubt  as  to  whether  the  killing  was  done  in  self- 
defense,  and  where  such  testimony  may  serve  to  explain  the  conduct  of 

1*  Statement  and  part  of  opinion  omitted. 


Sec.  1)  CHARACTER  831 

the  deceased,  and  is  therefore  fairly  a  part  of  the  res  gestae.  In  such 
cases  it  is  said  that  the  authorities  hold  that  the  defendant  may  show 
the  bad  character  and  reputation  of  the  deceased  as  a  turbulent,  quar- 
relsome man.  See,  among  other  authorities,  Franklin  v.  State,  29 
Ala.  14;  State  v.  Keene,  50  Mo.  357;  Wise  v.  State,  2  Kan.  *429, 
85  Am.  Dec.  595;  People  v.  Murray,  10  Cal.  310.  And  if  the  defend- 
ant may  show  that  the  deceased  was  a  known  quarrelsome,  dangerous 
man,  why  may  not  the  state  show  that  he  was  a  known  peaceable, 
quiet  citizen  ?  The  argument  is  not  good.  The  books  are  full  of  par- 
allel cases.  The  accused  may,  in  some  cases,  show  his  own  good  char- 
acter. The  state  can  never,  in  the  first  instance,  show  his  bad  char- 
acter. A  party  can  never  offer  evidence  to  support  a  witness'  credi- 
bility until  it  is  attacked.  The  reasons  for  these  rules  are  obvious. 
Such  testimony  tends  to  distract  the  minds  of  the  jury  from  the  prin- 
cipal question,  and  should  only  be  admitted  when  absolutely  essential 
\to  tlie  discovery  of  the  truth.  Again,  the  law  presumes  that  a  wit- 
ness is  honest,;tlaat  a  defendant  has  a  good  character,  and  that  a  party 
killed  was  a  quiet  and  peaceable  citizen,  except  so  far  as  the  contrary 
appears  from  the  testimony  in  the  case;  and  this  presumption  ren- 
ders it  unnecessary  to  offer  any  evidence  in  support  thereof.  No  au- 
thorities have  been  cited  sustaining  the  admission  of  such  testimony, 
and  the  following  are  in  point  against  it :  Ben  v.  State,  37  Ala.  103 ; 
Chase  v.  State,  46  Miss.  707;  Pound  v.  State,  43  Ga.  128.  For  the 
same  reasons  the  court  erred  in  permitting  the  state  to  offer  evidence 
of  the  character  and  reputation  of  Polk  Keeley,  a  son  of  the  deceased, 
who  took  part  in  the  last  affray.  *  *  * 
Judgment  reversed.^ ^ 


HARRISON  V.  HARRISON. 
(Supreme  Gourt  of  Vermont,  1871,    43  Vt.  417.) 

RedFiEIvD,  J.^°  The  case  shows  that  the  defendant's  father  was 
the  owner  of  the  freehold  on  which  was  situate  the  aqueduct.  The 
father  "had  forbidden  the  plaintiff's  entering  on  the  land  where  it 
was,"  and  "had  directed  the  defendant  to  watch  the  aqueduct  and 
see  that  no  one  interfered  with  it."  The  defendant  was  a  minor  son, 
in  the  service  of  hi^  father,  on  the  premises.  The  defendant  went  to 
the  boundary  of  the  land  where  the  aqueduct  was,  and  found  the  plain- 
tiff about  to  enter  upon  the  land,  on  his  way  to  the  aqueduct,  and 
about  221/2  feet  from  it.  Defendant  forbid  the  plaintiff's  going  upon 
the  land,  but  he  persisted  and  sprang  over  the  fence,  and  approached 
the  defendant  in  a  threatening  manner,  and  the  defendant  thereupon 

15  And  so  in  State  v.  Reed.  250  Mo.  379,  157  S.  W.  316  (1913),  where  a  num- 
ber of  the  cases  are  collected. 

16  Statement  and  part  of  opinion  omitted. 


832  CIRCmiSTANTIAL   EVIDENCE  (Cll.  5 

struck  him  several  blows,  which  he  claimed  were  "in  necessaiy  de- 
fense of  himself,  the  land,  and  the  aqueduct."     *     *     * 

The  defendant  offered  to  prove  that  "plaintiff'  was  reputed  to  be, 
and  was  in  fact,  a  quarrelsome  man,  with  a  violent  and  uncontrollable 
temper,  and  this  was  known  to  the  defendant  at  the  time ;"  which  was 
excluded  by  the  court.  The  defendant  must  be  judged  and  justified  or 
condemned,  in  the  light  of  the  circumstances  that  surrounded  him ; 
not  by  the  secret  motive  or  intent  of  the  plaintiff,  but  by  the  apii'arent 
purpose ;  not  by  the  actual,  but  apparent  danger.  If  a  man  presents  a 
pistol  to  another  and  threatens  his  life,  the  assailed  party  is  not 
required  to  wait  till  he  is  dead,  to  test  the  certainty  that  the  man  in- 
tended to  kill  him,  but  he  would  be  justified  in  disabling  his  assailant 
at  once,  though  it  should  finally  prove  that  the  pistol  was  unloaded  and 
murder  not  intended.  So  if  the  assailant  is  known  to  the  assailed  to 
be  a  practiced  pugilist  and  a  man  of  violence,  the  kind  and  degree  of 
resistance  must  be  measured,  or  at  least  modified,  by  the  apparent 
danger  with  which  the  party  is  threatened.  And  we  think  that,  when 
the  "plaintiff  sprang  over  the  fence  and  went  toward  the  defendant 
in  a  threatening  manner,"  the  degree  of  force,  whether  it  be  reason- 
able or  unreasonable,  which  defendant  might  employ,  would  depend 
measurably  upon  the  known  character,  in  that  respect,  of  the  plaintiff; 
whether  he  be  a  "man  of  war  from  his  youth,"  or  of  peace ;  whether  he 
had  the  temper,  the  will  and  ability,  to  inflict  sudden  and  great  bodily 
injury,  and  the  danger  was  imminent,  or  whether  he  be  known  to  the 
defendant  as  a  man  of  mild  temper  and  a  stranger  to  violence.  We 
think  the  evidence  should  have  been  received,  and  that  the  apparent  i 
danger  which  threatened  the  defendant  would  be  somewhat  affected 
by  it,  and  the  degree  of  force  which  defendant  might  lawfully  use 
should  be  measured  or  modified  by  it. 

The  judgment  of  the  county  court  is  reversed,  and  the  cause  re- 
manded.^^ 

17  And  so  in  McQiiiffgan  v.  T.ndd,  79  Vt  90,  64  Atl.  503,  14  L.  R.  A.  (N.  S.) 
689  (1906)  annotated. 

Compare  Davenport  v.  Silvey,  205  Mo.  543,  178  S.  W.  168,  L.  R.  A.  1916A, 
1240  (1915),  apparently  sanctlonins:  the  use  of  plaintiff's  bad  character  for 
violence  on  the  issue  of  self-defense,  both  to  show  the  reasonableness  of  de- 
fendant's apprehension,  and  the  probable  aggression  by  plaintiff. 

For  the  use  of  general  reputation  to  prove  notice  or  knowledge  of  a  fact, 
such  as  the  incompetency  of  an  employ<5,  ,see  Monahan  v.  City  of  Worcester, 
150  Mass.  439.  23  N.  E.  228,  15  Am.  St.  Rep.  226  (1890) ;  Park  v.  New  York 
Cent.  &  H.  R.  R.  Co.,  155  N.  Y.  215,  49  N.  E.  674,  63  Am.  St.  Rep.  603  (1892) ; 
Baltimore  &  O.  R.  Co.  v.  Henthorne,  73  Fed.  634,  19  C.  C.  A.  623  (1896). 


Sec.  1)  CHARACTER  833 

WOODS  V.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1874.     55  N.  Y.  515,  14  Ara.  Rep.  309.) 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  First  Judi- 
cial Department,  affirming  judgment  of  the  Court  of  General  Ses- 
sions of  the  Peace  in  and  for  the  city  and  county  of  New  York,  en- 
tered upon  a  verdict  convicting  plaintiff  in  error  of  the  crime  of 
rape.     *    *     * 

GrovEr,  J.^^  Upon  the  trial  the  prisoner  offered  to  prove  by  seven 
witnesses  that  the  complainant  was  in  the  habit  of  receiving  men  there 
for  the  purpose  of  promiscuous  intercourse,  and  for  liquor  especially. 
This  evidence  was  objected  to  by  the  prosecution  and  rejected  by  the 
court,  to  which  an  exception  was  taken  by  the  counsel  for  the  prisoner. 
The  evidence  previously  given  shows  that  the  place  intended  by  the 
offer  where  she  was  in  the  habit  of  receiving  men  for  the  purpose 
specified  was  where  she  dwelt,  known  as  "The  Ranch,"  and  that  the 
liquor  especially  was  intended  to  include  the  practice  of  the  men  so 
going  there  of  taking  liquor  with  them,  of  which  the  complainant  par- 
took to  great  excess  during  such  visits. 

Upon  the  assumption  that  the  plaintiff  in  error  had  intercourse  with 
the  complainant,  as  to  which  the  testimony  was  conflicting,  the  further 
issue  was  whether  he  ravished  her  by  force,  or  whether  she  assented 
to  such  intercourse.  Upon  this  issue  all  the  authorities  concur  in  hold- 
ing that  evidence  showing  that  the  character  of  the  prosecutrix  for 
chastity  was  bad  is  competent,  and  this  for  the  reason  that  it  is  more 
probable  that  an  unchaste  woman  assented  to  such  intercourse  than 
one  of  strict  virtue.  The  evidence  is  received  upon  this  ground,  and 
not  for  the  purpose  of  impeaching  the  general  credibility  of  the  wit- 
ness. Evidence  showing  that  the  prosecutrix  has  on  a  previous  oc- 
casion had  connection  with  the  accused  is  competent,  and  this  for  the 
reason  that  having  done  this  shows  a  probability  that  she  did  not  re- 
sist but  consented  to  that  charged  in  the  indictment.  In  Rex  v.  Bar- 
ker, 14  Eng.  Com.  Law,  467,  it  was  held  that  the  prosecutrix  might 
be  asked,  with  a  view  to  contradict  her,  whether  she  was  not  on  a 
specified  day  after  the  alleged  offense  walking  in  High  street,  Ox- 
ford, looking  out  for  men,  and  the  further  question  whether  upon  an- 
other specified  day  after  the  alleged  offense  she  was  not  walking  in 
High  street  with  a  woman  reputed  to  be  a  common  prostitute.  This 
evidence  was  competent,  not  for  the  purpose  of  impeaching  the  gen- 
eral credibility  of  the  witness,  but  proper  for  the  consideration  of  the 
jury  upon  the  question  whether  she  assented  to  the  intercourse  with 
the  prisoner. 

Under  these  authorities  it  is  entirely  clear  that  the  evidence  offered 
by  the  accused  was  competent.     The  number  of  witnesses  by  whom 

18  statement  condensed. 
HiNT.Ev.— 53 


834  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

he  proposed  to  prove  the  fact  was  immaterial.  It  was  competent  for 
him  to  prove,  by  any  one  knowing  the  fact,  that  the  prosecutrix  was  in 
the  habit  of  receiving  men  at  her  dwelling  for  promiscuous  intercourse 
with  them,  and  the  weight  of  such  testimony  was  in  no  respect  im- 
paired by  the  further  fact  that  the  men  so  received  took  liquor  with 
them  on  these  occasions,  of  which  they  and  she  partook  to  great  ex- 
cess. The  testimony  offered,  if  true,  would  have  shown  the  com- 
plainant to  be  a  common  prostitute ;  proof  more  satisfactory  than 
that  of  a  bad  general  reputation  for  chastity.  The  trial  court,  as  well 
as  the  General  Term,  regarded  the  offer  as  nothing  more  than  that 
of  proof  of  some  particular  acts  of  lewdness.  But  it  was  much  more. 
It  was  an  offer  to  show  by  direct  evidence  not  only  this,  but  that  the 
complainant  was  a  common  prostitute  and  in  the  habit  of  plying  her 
vocation  at  the  place  where  she  dwelt.  Whether  evidence  of  particu- 
lar acts  of  criminality  by  the  prosecutrix  is  competent  is  a  question 
upon  which  the  authorities  differ,  but  one  not  necessary  to  deter- 
mine in  this  case.  In  People  v.  Abbot,  19  Wend.  192,  such  proof  was 
held  to  be  admissible.  In  People  v.  Jackson,  3  Parker's  Cr.  R.  397, 
it  was  held  incompetent.  The  authorities  are  all  cited  and  ably  ex- 
amined in  the  opinions  in  these  cases  by  Cowen,  J.,  in  the  former,  and 
by  S.  B.  Strong,  J.,  in  the  latter.  See  also  Roscoe  Crim.  Ev.  810. 
When  a  determination  of  this  question  by  this  court  shall  be  neces- 
sary' to  a  disposition  of  the  case  before  it,  it  will  be  considered  and 
decided. 

The  judgment  appealed  from  must  be  reversed  and  a  new  trial  or- 
dered. 

All  concur. 

Judgment  reversed.^' 


PEOPLE  v.  RODAWALD. 
(Court  of  Appeals  of  New  York,  1904.     177  N.  Y.  408,  70  N.  E.  1.) 

Vann,  J.2°  The  homicide  which  is  the  subject  of  this  appeal  was 
committed  in  April,  1903.  The  defendant  was  indicted  in  May,  con- 
victed in  June,  and  appealed  to  this  court  in  July  of  the  same 
year.     *     *     * 

According  to  the  evidence  for  the  defendant,  although  he  may  have 
armed  himself  without  adequate  cause,  he  had  given  up  the  contro- 
versy over  the  wood,  and  had  started  for  home,  when  he  was  attacked* 
by  the  deceased  with  a  dangerous  weapon,  and  the  revolver  was  fired 
in  lawful  defense  of  his  person,  or  went  off  accidentally.     A  fearful 

10  Sorae  of  the  courts  appear  to  admit  such  evidence  to  discredit  the  prose- 
cutipK  witness,  as  well  as  to  prove  consent.  O'Blenis  v.  State,  47  N.  J.  Law, 
27U  (18H.J). 

20  Part  of  opinion  of  Vann,  J.,  and  the  dissenting  opinion  of  O'Brien,  J., 
ouiilted. 


Sec.  1)  CHARACTER  835 

mistake  may  have  been  made  by  the  jury,  yet  Justice  cannot  be  ad- 
ministered without  running  that  risk  in  almost  every  murder  case  that 
is  tried.     *     *     * 

The  defendant  offered  in  evidence  certified  copies  of  the  following 
records:  A  judgment  rendered  by  a  court  of  special  sessions  held 
in  Montgomery  county  on  the  14th  of  January,  1889,  convicting  the 
deceased  of  petit  larceny  upon  his  plea  of  guilty,  and  sentencing  him 
to  the  State  Industrial  School  at  the  city  of  Rochester.  A  judgment 
of  the  county  court  of  Cattaraur^us  county  convicting  the  deceased, 
also  upon  a  plea  of  guilty,  of  assault  in  the  first  degree,  and  sen- 
tencing him  to  imprisonment  in  State  Prison  for  four  years.  *  *  * 
No  offer  Avas  made  to  show  that  the  defendant  had  heard  that  the 
deceased  had  been  convicted  of  any  of  these  offenses.  All  this  evi- 
dence was  excluded  upon  the  objection  that  it  was  not  the  proper  meth- 
od of  proving  the  character  of  the  deceased.    *    *    * 

The  general  character  of  the  deceased  was  immaterial,  for  the 
worst  man  has  the  right  to  live,  the  same  as  the  best,  and  no  one  may 
attack  another  because  his  general  reputation  is  bad.  The  law  pro- 
tects every  one  from  unlawful  violence,  regardless  of  his  character. 
Upon  a  trial  for  murder,  however,  the  accused,  after  giving  evidence 
tending  to  show  that  he  acted  in  self-defense,  may  prove  that  the  gen- 
eral reputation  of  the  deceased  was  that  of  a  quarrelsome,  vindictive, 
or  violent  man,  and  that  such  reputation  had  come  to  his  knowledge 
prior  to  the  homicide.  People  v.  Gaimari,  176  N.  Y.  84,  95,  68  N.  E. 
112;  People  v.  Lamb,  *41  N.  Y.  360,  366;  Abbott  v.  People,  86  N.  Y. 
460 ;  Eggler  v.  People,  56  N.  Y.  642 ;  Wharton's  Criminal  Law  [2d 
Ed.]  §  606;  Wharton's  Criminal  Evidence  [9th  Ed.]  §  69;  Under- 
bill's Criminal  Evidence,  §  324.  Such  evidence  is  not  received  to  show 
that  the  deceased  was  the  aggressor,  for,  if  competent  for  that  pur- 
pose, similar  evidence  could  be  given  as  to  the  reputation  of  the  de- 
fendant, as  bearing  on  the  probability  that  he  was  the  aggressor.  It 
is  competent  "only  in  cases  where  the  killing  took  place  under  circum- 
stances that  afforded  the  slayer  reasonable  grounds  to  believe  himself 
in  peril,  and  then  solely  for  the  purpose  of  illustrating  to  the  jury  the 
motive  which  actuated  him."  People  v.  Lamb,  *41  N.  Y.  376.  Fear 
founded  on  fact  tends  to  rebut  the  presumption  of  malice. 

The  character  of  the  deceased  with  reference  to  violence,  when 
known  to  the  accused,  enables  him  to  judge  of  the  danger,  and  aids  the 
jury  in  deciding  whether  he  acted  in  good  faith,  and  upon  the  hon- 
est belief  that  his  life  was  in  peril.  It  shows  the  state  of  his  mind 
as  to  the  necessity  of  defending  himself.  It  bears  upon  the  question 
whether,  in  the  language  of  the  Penal  Code,  "there  is  reasonable 
ground  to  apprehend  a  design  on  the  part  of  the  person  slain  *  *  * 
to  do  some  great  personal  injury  to  the  slayer  *  *  *  and  there  is 
imminent  danger  of  such  design  being  accomplished."  Section  205. 
When  self-defense  is  an  issue,  threats  of  the  deceased,  even  if  un- 
known to  the  defendant,  are  admissible,  as  they  tend  to  show  the  state 


836  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

of  mind  of  the  deceased,  and  that  he  was  the  aggressor.  Stokes  v. 
People,  53  N.  Y.  164,  174,  13  Am.  Rep.  492;  People  v.  Taylor,  177 
N.  Y.  237,  69  N.  E.  534.  Evidence  of  general  reputation  for  violence, 
however,  is  received,  not  to  show  the  state  of  mind  of  the  deceased, 
but  of  the  accused — not  to  show  who  was  in  fact  the  aggressor,  but 
whether  the  defendant  had  reasonable  ground  to  believe  that  he  was 
in  danger  of  great  personal  injury.  Hence  it  is  obvious  that,  what- 
ever the  reputation  of  the  deceased  for  violence  may  be,  it  can  have 
no  bearing  on  what  the  defendant  apprehended,  unless  he  knew  it.  If 
he  knew  that  the  deceased  was  reputed  to  be  violent,  it  might  raise  in 
his  mind  a  fear  of  danger,  but  not  otherwise.  We  think  the  evidence 
of  previous  convictions  was  incompetent,  because  the  defendant  knew 
nothing  about  them,  or  about  the  nature  of  the  offenses,  so  far  as  ap- 
pears. 

The  evidence,  moreover,  was  incompetent  for  another  reason.  The 
offer  was  not  to  prove  the  general  reputation  of  the  deceased  for 
violence,  but  to  show  specific  acts  of  which  he  had  been  guilty,  not 
toward  the  defendant,  or  to  his  knowledge,  but  toward  third  persons, 
or  their  property.  The  rule  is  well  settled  that  this  is  improper,  not 
only  because  character  is  never  established  by  proof  of  individual  acts, 
but  because  each  specific  act  shown  would  create  a  new  issue.  Peo- 
ple v.  Gaimari,  176  N.  Y.  84,  95,  68  N.  E.  112;  People  v.  Druse,  103 
N.  Y.  655,  8  N.  E.  733 ;  Thomas  v.  People,  67  N.  Y.  218,  225 ;  Eggler 
v.  People,  56  N.  Y.  642 ;  People  v.  Lamb,  *41  N.  Y.  360,  366.    *    *    * 

Judgment  affirmed.-^ 


PEOPLE  V.  LAMAR. 

(Supreme  Court  of  California,  1906.    148  Cal.  564,  83  Pac.  993.; 

LoRiGAN,  J."  The  justices  of  the  District  Court  of  Appeal  for  the 
Second  District,  before  whom  this  appeal  was  originally  pending,  be- 
ing unable  to  agree  on  a  judgment  therein,  the  matter  has  been  trans- 
ferred to  this  court  for  disposition.  The  defendant  was  prosecuted 
for  murder,  convicted  of  manslaughter,  and  sentenced  to  imprison- 
ment in  the  state  prison  for  a  term  of  10  years. .  Upon  the  trial  the  kill- 
ing by  defendant  was  admitted,  and  he  sought  to  justify  it  on  the 
ground  that  it  was  done  in  necessary  self-defense.     *     *     * 

Neither  can  we  accord  with  the  further  contention  of  respondent 
that  upon  no  principle  of  law  was  the  evidence  admissible.  On  the 
contrary,  under  the  circumstances  of  the  case  as  presented  to  the  jury, 
we  think  that  the  offer  to  show  that  the  general  reputation  of  deceased 
was  that  of  a  quarrelsome,  violent,  dangerous  man  when  intoxicated 

21  See,  also,  State  v.  Barrett,  240  Mo.  101,  144  S.  W.  485  (1012),  approving 
an  Instruction  limiting  tlie  l):id  cliaractor  of  the  deceased  to  questions  of  rea- 
sonable apprehension  on  the  part  of  the  defendant. 

2  2  I'QrL  of  opinion  omitted. 


Sec.  1)  CHARACTER  837 

was  both  proper  and  pertinent.  We  say,  under  the  circumstances  of 
the  case,  because  it  is  undoubtedly  true  that,  as  an  abstract  proposition, 
the  good  or  bad  character  of  the  deceased  cannot  be  taken  into  consid- 
eration as  an  element  influencing  the  jury  in  determining  the  guilt  of  a 
defendant.  All  men,  independent  of  their  character  or  reputation,  are 
under  the  equal  protection  of  the  law,  and  it  in  no  degree  excuses  or 
palliates  the  taking  of  human  life  that  the  person  slain  was  of  bad 
character  or  reputation;  the  offense  is  as  great  whether  the  life  ma- 
liciously taken  be  that  of  a  man  of  bad  or  of  good  character.  But, 
while  the  general  rule  is  that  evidence  of  the  bad  reputation  of  de- 
ceased for  peace  and  quiet  cannot  be  given  in  evidence,  still  this  rule 
has  its  exceptions  applicable  to  cases  where  the  facts  and  circumstances 
surrounding  tliem  are  peculiar.  Such  an  exception  applies  in  cases  of 
homicide  where  the  plea  of  self-defense  is  interposed,  and  the  evidence 
before  the  jury  leaves  itin  doubt  whether  the  deceased  was  the  aggres- 
sor, or  where  the  circumstances  attending  the  homicide  render  it  doubt- 
ful or  equivocal  whether  the  defendant  was  justified  in  believing  himself 
in  imminent  danger  at  the  hands  of  deceased.  The  conflicting  evidence 
in  the  case  at  bar  brought  the  case  within  the  exception  stated,  as 
presenting  a  situation  where  the  sufficiency  of  the  plea  of  self-defense, 
made  by  the  defendant,  in  the  essential  elements  necessary  to  constitute 
it,  was  enveloped  in  doubt. 

It  was  early  laid  down  as  the  rule  in  this  state,  that  under  such 
circumstances,  evidence  of  the  reputation  of  the  deceased  for  violence 
is  admissible.  In  People  v.  Murray,  10  Cal.  310,  this  court  says :  "The 
other  point  is,  the  exclusion  of  evidence  of  the  character  of  the  de- 
ceased for  turbulence,  recklessness,  and  violence.  The  rule  is  well 
settled  tliat  the  reputation  of  the  deceased  cannot  be  given  in  evi- 
dence, unless,  at  the  least,  the  circumstances  of  the  case  raise  a  doubt 
in  regard  to  the  question  whether  the  prisoner  acted  in  self-defense. 
It  is  no  excuse  for  a  murder  that  the  person  murdered  was  a  bad  man ; 
but  it  has  been  held  that  the  reputation  of  the  deceased  may  some- 
times be  given  in  proof  to  show  that  the  defendant  was  justified  in 
believing  himself  in  danger,  when  the  circumstances  of  the  contest  are 
equivocal."  The  case  of  People  v.  Anderson,  39  Cal.  704,  also  con- 
firms this  doctrine.  These  cases  lay  down  the  broad  rule  that  in  all 
cases  of  homicide,  where  tlie  other  evidence  introduced  raises  a  doubt 
whether  defendant  acted  in  self-defense,  evidence  of  the  reputation 
of  the  deceased  is  admissible,  and  this  rule  applies  as  to  every  essen- 
tial issue  in  the  case  upon  which  that  plea  is  founded.  It  is  always  a 
vital  issue  before  the  jury,  when  such  a  plea  is  interposed,  as  to  who 
was  the  aggressor  in  the  contest.  In  the  case  at  bar  this  issue,  under 
the  evidence,  was  involved  in  doubt,  and  any  fact  which  would,  under 
such  circumstances,  serve  to  illustrate  who  was  the  assailant  in  the 
encounter,  where  the  death  of  one  of  the  parties  ensued,  would  be  ad- 
missible. In  such  equivocal  condition  of  the  evidence  the  reputation 
of  the  deceased  as  a  violent,  turbulent,  dangerous  man  would  be  a  le- 


838 


CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 


gitimate  subject  of  inquiry,  illustrating  the  animus  with  which  he  en- 
countered tlie  defendant.  It  would  be  a  circumstance  immediately 
connected  with  the  quarrel  tending  to  illustrate  the  true  intent  or  mo- 
tive which  characterized  the  conduct  of  deceased  therein,  to  be  takxn 
into  consideration  by  the  jury,  in  connection  with  the  other  facts  and 
circumstances  in  the  case,  in  determining  who  was  the  aggressor  in  the 
fatal  contest. 

It  is  the  rule  in  this  state  that  threats  of  hostile  intention  made  by  a 
deceased,  whether  communicated  or  uncommunicated,  are  admissible 
evidence  for  the  said  purpose  when  the  evidence  is  equivocal.  People 
V.  Scoggins,  37  Cal.  686;  People  v.  Travis,  56  Cal.  251;  People  v. 
Tamkin,  62  Cal.  468;  People  v.  Thomson,  92  Cal.  506,  28  Pac.  589. 
The  philosophy  which  supports  this  rule  as  to  the  admissibility  of  evi- 
dence of  such  threats,  where  it  is  otherwise  in  doubt  from  the  evidence 
who  was  the  assailant,  is  that  it  is  more  probable  that  one  who  has 
made  threats  of  hostile  intention  towards  another  would,  when  op- 
portunity permits,  attempt  to  carry  such  threats  into  execution  and 
become  the  assailant,  than  would  one  who  has  made  no  such  threats, 
or  declared  no  such  intention.  So,  too,  with  reference  to  the  admis- 
sibility of  evidence  of  the  reputation  of  deceased  as  being  a  violent, 
turbulent,  dangerous  man,  such  proof,  when  the  evidence  as  to  who  was 
the  assailant  is  in  doubt,  for  a  similar  philosophic  reason  should  be 
permitted ;  it  being  more  probable  that  one  bearing  such  a  reputation 
would  precipitate  a  deadly  contest  than  would  one  having  no  such 
reputation.  Hence  we  think  tlie  rule  should  be  that  whenever  the  cir- 
cumstances of  a  case  permit  of  the  admission  of  evidence  of  threats 
made  by  the  deceased  against  the  defendant,  either  communicated  or 
uncommunicated,  evidence  of  the  reputation  of  the  deceased  as  be- 
ing a  violent,  quarrelsome,  dangerous  man,  either  known  or  unknown 
to  the  defendant,  is  equally  admissible,  the  consideration  of  tlie  jury 
to  be  limited  by  proper  instructions  of  the  court,  where  the  reputation 
is  unknown  to  defendant,  to  the  same  extent  that  the  law  limits  the 
consideration  by  them  of  uncommunicated  tlireats — to  the  question 
solely  as  to  who  was  the  assailant  in  the  fatal  encounter.  The  rule  as 
to  such  limitation  when  applied  to  uncommunicated  threats  is  declared 
in  People  v.  Scoggins,  Zl  Cal.  686.     *     *     * 

Judgment  reversed. 


Sec.  1)  CHAEACTEE  839 

STOW  V.  CONVERSE. 

(Supreme  Court  of  Errors  of  Conuecticut,  1820.    3  Conn.  325,  8  Am.  Dec.  189.) 

This  was  an  action  on  the  case  for  the  publication  of  a  libel  im- 
puting misconduct  to  the  plaintiff  in  his  office  of  tax  collector.  The 
defendant  attempted  to  justify  the  imputation  as  true. 

The  plaintiff,  in  order  to  rebut  the  proof  introduced  on  the  part  of 
the  defendant  to  justify  those  parts  of  the  publication  relating  to  the 
plaintiff's  conduct  as  collector  and  bank  director,  oft'ered  proof  that  the 
plaintiff  had  ever  sustained  the  character  of  an  honest  man ;  to  which 
die  defendant  objected;  but  tlie  judge  decided,  that  it  was  admis- 
sible, and  permitted  it  to  go  to  the  jury. 

The  jury  having  returned  a  verdict  for  the  plaintiff,  the  defendant 
moved  for  a  new  trial,  on  the  ground  that  the  several  questions  with  re- 
gard to  the  admission  of  evidence  were  erroneously  decided,  and  that 
the  charge  was  incorrect.     This  motion  the  judge  reserved.^^ 

HosMER,  C.  J.     *     *     *    There  remains  to  be  considered  two  ob- 
jections, the  order  of  which  I  shall  invert.    To  rebut  the  proof  intro- 
duced on  the  part  of  the  defendant,  adduced  to  establish  the  truth  of 
his  charges  against  the  plaintiff's  conduct  as  collector  of  die  revenue, 
and  bank  director,  evidence  was  admitted  on  the  part  of  the  plaintiff, 
to  show  that  he  had  ever  sustained  the  character  of  an  honest  man. 
The  matter  in  issue  here  was  conduct,  not  character.     The  charge  i 
on  the  plaintiff  was  that  of  having  exacted  money  in  violation  of  his 
official  duty ;    and  to  this  point  alone  should  the  testimony  have  been 
received.     There  is  no  pretext  for  the  assertion,  that  such  evidence 
was  ever  before  admitted.    The  decisions  in  Westminster-Hall,  in  the 
neighboring  states,  and  in  our  own  state,  all  harmonize  on  this  sub- 
ject.   "In  ordinary  cases,  where  the  defendant's  character  is  not  calledj 
in  question,  otherwise  than  by  charging  him  with  fraud,  or  misconduct,  \ 
it  is  not  admissible  to  produce  any  proof  to  support  or  impeach  his 
character."    Swift's  Ev.  140.     And  as  the  plaintiff  derives  no  support 
from  adjudged  cases,  as  httle  is  derivable  from  principle.     It  is  not 
only  in  contravention  of  the  fundamental  rule,  that  evidence  shall  be 
confined  to  the  issue,  to  admit  such  testimony ;  but  it  would  be  infinite- 
ly dangerous  to' the  administration  of  justice.     Instead  of  meeting  a 
charge  of  misconduct,  by  testimony  evincive  of  not  having  miscon- 
ducted, general  character  would  become  the  principle  evidence  in  most 
cases;   and  he  who  could  tlirong  the  court  with  witnesses  to  establish 
his  reputation  in  general,  would  shelter  himself  from  the  wrongs  he 
had  perpetrated.    In  criminal  cases,  by  way  of  exception,  the  prisoner » 
is  permitted  to  adduce  his  general  character,  in  opposition  to  a  specific  \ 
charge.    But  the  rule  has  not  been,  and  ought  not  to  be,  extended  fur-  1 
tlier. 

atement  of  facts  condensed  and  part  of  opinion  omitted. 


S40  CIRCUMSTANTIAL   EVIDENCE  (Cll.  5 

Had  the  plaintiff  offered  general  character  in  evidence,  on  the  points 
on  which  tlie  charges  were  made  against  him,  the  long  practice  of  our 
courts  would  have  sanctioned  the  admission  of  such  testimony  to  en- 
hance damages ;  but  it  would  not  have  been  received  for  any  other 
purpose.     *     *     * 

New  trial  granted.-* 


HARRIS  V.  NEAL. 

(Supreme  Court  of  Micliigan,  1908.     153  Mich.  57,  116  N.  W.  535.) 

Carpenter,  J.^'  Plaintiff  alleges  that  she  was  assaulted  and  raped 
by  defendant.  She  brought  this  suit  to  recover  compensation.  Her 
testimony  supported  her  claim.  Defendant  denied  having  had  any 
intercourse  with  plaintiff,  and  he  introduced  testimony  tending  to 
prove  an  alibi.  The  issue  was  submitted  to  a  jury,  who  rendered  a 
verdict  in  plaintift''s  favor.  Defendant  seeks  a  reversal.  Defendant 
was  permitted  to  introduce  testimony  tending  to  prove  that  plaintiff 
had  a  bad  reputation  for  chastity.  The  trial  court  held  that  this  testi- 
mony could  be  used  only  for  the  purpose  of  mitigating  damages.  De- 
fendant contends  that  this  was  error;  that  the  testimony  was  "ma- 
terial as  bearing  upon  the  probability  of  plaintiff's  testimony."  In  the 
interest  of  clearness,  we  think  it  proper  for  us  to  distinguish  the  ques- 
tion raised  by  defendant's  contention  from  certain  other  questions 
which  often  arise.  The  question  is  different  from  the  one  which 
arises  when  a  female  witness  upon  cross-examination,  for  the  purpose 
of  affecting  her  credibility,  is  asked  questions  imputing  lack  of  chas- 
tity. While  the  law  in  such  cases  is  not  thoroughly  settled,  this  much 
may  be  safely  stated:  That  the  trial  court  has  authority  to  exclude 
such  testimony  (Knickerbocker  v.  Worthing,  138  Mich.  224,  101  N.  W. 
540),  and  that  the  answers  of  the  witness  are  conclusive. 

The  question  before  us  is  also  to  be  distinguished  from  the  question 
which  arises  when  it  is  sought  to  impair  the  credibility  of  a  witness 
by  proof  of  reputation.  In  such  a  case  the  proof  of  reputation  is  con- 
fined to  reputation  for  veracity.  Leonard  v.  Pope,  27  Mich.  145 : 
People  V.  Abbott,  97  Mich.  488,  56  N.  W.  862,  37  Am.  St.  Rep.  360. 
The  principles  governing  the  admissibility  of  testimony  in  the  two 
classes  of  cases  above  mentioned  have  no  application  to  the  question 
before  us,  and,  if  they  had,  they  would  not  sustain  defendant's  conten- 
tion.   The  rule  invoked  by  defendant's  counsel  is  a  different  rule.    He 

2*  And  so  in  McKane  v.  Howard,  202  N.  Y.  181,  95  N.  E.  642,  Ann.  Cas 
19121),  9G0  (1911),  where  in  an  action  for  breach  of  promise  of  marriage  the 
plaintiff  sought  to  prove  her  good  character  to  rebut  the  defense  of  immoral 
conduct. 

Compare  Provi.s  v.  lioed,  5  Bingham,  435  (1829),  where  the  court  admitted 
evidence  of  the  good  character  of  u  decea.sed  attesting  witness  to  rebut  an 
imputation  of  fraud  on  his  i)art. 

26  Part  of  opinion  omitted. 


Seel)  CHARACTER  841 

invokes  the  rule  applied  by  this  court  in  People  v.  Ryno,  148  Mich. 
137,  111  N.  W.  740.  That  was  a  criminal  case  wherein  respondent 
was  convicted  of  rape.  There  we  held  that  "the  bad  reputation  of  a 
prosecuting  witness  above  the  age  of  consent  for  chastity  prior  to 
the  date  of  the  ofTense  charged"  was  admissible  as  tending  to  prove 
that  the  intercourse  may  have  been  had  by  consent,  and  we  reversed 
the  judgment  because  this  rule  was  violated  by  the  trial  court.  The 
rule  laid  down  in  People  v.  Ryno  would  be  applicable  if  the  case  at 
bar  were  a  criminal  case.  It,  however,  is  not  a  criminal  case.  It  is  a 
civil  case,  and  this  court  has  held  that  that  rule  is  inapplicable  to 
civil  cases.  Adams  v.  Elsefifer,  132  Mich.  100,  92  N.  W.  772;  Knick- 
erbocker V.  Worthing,  supra.  Adams  v.  Elseffer  was  a  suit  brought  by 
the  employer  Adams  against  his  employe  Elseffer  to  recover  moneys 
alleged  to  have  been  misappropriated.  As  bearing  upon  the  probability 
of  innocence,  defendant  was  permitted  to  introduce  proof  of  good 
character.  This  court  held  such  testimony  inadmissible,  saying :  "The 
correct  rule  according  to  the  great  weight  of  authority  is  that  in  civil 
actions  the  character  of  a  party  to  the  action  may  become  the  subject 
of  proof  in  case,  and  only  in  case,  it  is  involved  in  the  issue.  And  we 
think  the  character  is  involved  in  the  issue  only  in  the  cases  in  which 
either  the  right  of  recovery  or  the  extent  of  recovery  is  affected  by 
the  character  of  either  the  plaintiff  or  the  defendant."  In  Knicker- 
bocker V.  Worthing  we  applied  the  same  principles,  and  there  we  held 
that  defendant,  who  in  a  civil  case  was  charged  with  committing  adul- 
tery, could  not  introduce  evidence  of  his  good  character  for  chastity. 

It  may  be  said  that  those  cases  are  to  be  distinguished  from  this  be- 
cause there  the  question  related  to  the  proof  of  cliaracter ;  here  to  the 
proof  of  reputation.  This  distinction  is  not  tenable.  The  ordinary 
way  of  proving  character,  indeed,  according  to  the  weight  of  authority 
(Wigmore  on  Evidence,  §  1983 ;  People  v.  McLean,  71  Mich.  309,  38 
N.  W.  917,  15  Am.  St.  Rep.  263)  the  only  way  of  proving  character, 
is  to  prove  reputation.  And  the  language  of  our  opinion  in  Adams  v. 
Elseffer  very  clearly  indicates  that  proof  of  reputation  as  well  as  proof 
of  character  is  inadmissible.  Indeed,  1  think  it  may  be  said  that  the 
only  sound  argument  which  could  be  advanced  for  admitting  testimony 
of  reputation  in  such  cases  is  that  reputation  furnishes  evidence  of 
character,  and  therefore  the  decision  that  proof  of  character  is  inad- 
missible is  also  a  decision  that  proof  of  reputation  is  inadmissible. 
We  conclude  that  proof  of  reputation  was  not  admissible  as  bearing 
upon  the  probability  of  plaintiff's  testimony,  and  it  follows  that,  though 
admitted  for  another  purpose,  it  could  not  be  legitimately  used  for  that  j 
purpose.    The  complaint  under  consideration  discloses  no  error.  *  *  ** 

Judgment  affirmed. ^^ 

2  6  And  so  in  a  civil  action  for  assault  the  defendant's  good  character  for 
peace  is  not  admissible.  Vawter  v.  Hultz,  112  Mo.  633,  20  S.  W.  689  (1S92) ; 
Conith  V.  Jones,  77  Vt.  441,  60  Atl.  814  (1005). 

But  see  Hein  v.  Iloldridge,  78  Minn.  468,  81  N.  W.  522  (1900),  making  an 


842  CIRCUMSTANTIAL   EVIDENCE  (Cll.  5 

CHASE  V.  MAINE  CENT.  R.  CO. 

(Supreme  Judicial  Court  of  Maine,  1885.     77  Me.  62,  52  Am.  Rep.  744.) 

Peters,  C.  J."  The  intestate's  sleigh  collided  with  a  train  at  a 
railroad  crossing.  He  thereby  received  an  injury  and  very  soon  aft- 
erwards died.  He  never  was  conscious  enough  after  the  injury  to 
tell  how  the  accident  happened.  No  one  was  with  him  at  the  time. 
No  one  saw  him  at  the  moment  of  the  collision.  As  evidence  that  he 
could  not  have  been  guilty  of  any  negligence  which  contributed  to 
the  accident,  witnesses  who  had  been  his  neighbors  for  some  time 
were  permitted  to  testify  to  their  opinion  of  his  general  character  for 
carefulness.  We  think  this  was  overstepping  the  limit  allowed  to 
collateral  evidence  in  this  State.  We  dare  not  abide  by  it.  Our  be- 
lief is  that  such  a  rule  would  be  fraught  with  much  more  evil  than 
good. 

It  was  said  in  Eaton  v.  Telegraph  Co.,  68  Me.  63,  67,  that  "the 
best  authorities  clearly  sustain  the  doctrine  that  the  fact  of  a  person 
having  once  or  many  times  in  his  Hfe  done  a  particular  act  in  a  par- 
ticular way,  does  not  prove  that  he  has  done  the  same  thing  in  the 
same  way  upon  another  and  different  occasion."  See  cases  there 
cited.  If  in  civil  cases  a  person's  character  proves  carefulness  in  one 
instance,  why  not  in  all  instances  ?  Where  and  how  can  a  true  line 
of  distinction  be  drawn?  If  by  such  proof  a  plaintiff  can  be  shown  to 
have  been  careful  in  one  case,  why  not  by  the  same  mode  of  proof 
show  that  a  person  acted  carefully  or  carelessly  in  any  case— in  all 
cases?  In  many  litigations,  under  such  a  test,  there  would  arise  a 
wager  of  character  which  would  as  unfairly  settle  the  dispute  as  did 
formerly  the  wager  of  battle.  If  the  intestate's  general  character  for 
care  be  in  issue,  why  not  that  of  the  engineer  and  of  every  man  con- 
cerned in  the  management  of  the  train?  If  a  man  who  is  customarily 
careful  were  always  so,  there  would  be  reason  for  admitting  the  evi- 
dence. But  the  issue  is,  whether  the  intestate  was  careful  in  this  par- 
ticular instance,— a  fact  to  be,  either  directly  or  circumstantially,  af- 
firmatively proved.  The  objection  to  such  a  method  of  proof  is  aug- 
mented by  the  fact  that  the  testimony  consisted  of  merely  the  opinions 
of  neighbors, — one  generality  proving  another.  But  upon  what  tests 
or  what  definition  of  care  are  their  opinions  grounded?  The  ques- 
tion was  not  whether  the  intestate  managed  his  farm,  or  his  shop,  or 

e-xcfption  in  favor  of  the  defendant'.s  character  for  chastity  In  an  action 
again.st  him  for  tlje  seduction  of  tlie  phiintill's  dauf^htor. 

See,  also,  Rasmusson  v.  North  Coast  Fire  Ins.  Co.,  83  Wash.  .%9,  145  Pac. 
GIO,  L.  K.  A.  1915C,  1179  (1915),  making  an  exception  where  the  action  in- 
volve.s  a  char^'e  of  fraud  against  a  person  since  deceased.  Contra:  Great 
Western  Life  Ins.  Co.  v.  Sparks,  .'iS  Okl.  :i!»5.  132  Pac.  1092,  49  L.  R.  A.  (N. 
S.)  721  (1913)  annotated.  See,  also,  Wilson  Lumber  &  Milling  Co.  v.  Atklu- 
Bon,  l<i2  N.  C.  298,  78  S.  E.  212,  49  L.  R.  A.  (N.  S.)  733  (1913). 

27  Statemcut  and  part  of  opinion  omitted. 


Sec.  1)  CHARACTER  843 

his  horses,  carefully,  but  whether  he  used  due  care  in  attempting  to 
cross  a  railroad  track  at  the  very  moment  when  a  regular  train  was 
due  at  the  crossing.  The  law  imperatively  demands  that  a  traveler 
look  and  listen  before  crossing  if  there  is  any  opportunity  to  do  so. 
What  did  these  farmer  witnesses  know  about  the  intestate's  habitual 
care  in  that  respect.  It  is  not  a  ground  for  the  admission  of  this  evi- 
dence that  the  plaintiff  can  produce  no  other.  It  is  neither  of  pri- 
marv  or  secondary  importance, — it  is  not  evidence  at  all.  1  Grcenl. 
Ev.  '§  84. 

The  question  is  not  a  new  one  in  this  court.  The  sole  question 
considered  in  the  case  of  Scott  v.  Hale,  16  Me.  326,  was,  whether  sim- 
ilar evidence  was  admissible.  The  defendant  there  was  sued  for  dam- 
ages for  the  loss  of  a  building  by  fire,  the  allegation  being  that  the 
fire  was  occasioned  by  the  negligence  of  the  defendant.  In  that  case 
the  same  arguments  were  presented  as  here.  The  evidence  received 
in  that  case  came  nearer  the  point  at  issue  than  the  evidence  here.  At 
the  trial  the  court  permitted  witnesses  to  testify  that  the  defendant 
was  very  careful  wnth  fire,  and  that  they  never  discovered  any  care- 
lessness in  him  about  taking  care  of  his  fires  during  the  time  they 
were  at  his  house  just  before  the  event  coipplained  of.  It  was  held 
that  the  evidence  was  inadmissible,  and  the  verdict  was  set  aside. 
The  same  rule  has  been  maintained  in  subsequent  cases.  Lawrence 
V.  Mt.  Vernon,  35  Me.  100;  Dunham  v.  Racklif^f,  71  Me.  345.  The 
case  of  Morris  v.  East  Haven,  41  Conn.  252,  cited  by  the  defendant,  is 
an  especiallv  pertinent  and  sustaining  decision.  See  Baldwin  v.  Rail- 
road, 4  Gray  (Mass.)  333.     *     *     * 

Exceptions  sustained. 


ILLINOIS  CENT.  R.  CO.  v.  PRICKETT. 

(Supreme  Court  of  Illinois,  1904.     210  111.  140,  71  N.  E.  435.) 

BoGGS,  J.-^  A  judgment  in  the  sum  of  $4,000  in  favor  of  the  ap- 
pellee administratrix,  entered  in  the  circuit  court  of  Marion  county 
against  the  appellant  company,  was  af^rmed  by  the  Appellate  Court 
for  the  Fourth  District  on  appeal,  and  this  judgment  is  before  us  for 
review  by  the  further  appeal  of  the  appellant  company. 

Thomas  J.  Prickett,  appellee's  intestate,  was  a  locomotive  engineer 
in  the  employ  of  the  appellant  company.  On  the  morning  of  the  17th 
day  of  May,  1900,  he  left  Centralia,  going  south,  on  locomotive  en- 
gine No.  915,  which  was  drawing  a  passenger  train.  When  approach- 
ing the  station  at  Du  Bois,  about  20  miles  south  of  Centralia,  with 
slackening  speed  preparatory  to  stopping  at  such  station,  the  boiler  of 
the  locomotive  engine  suddenly  exploded  with  great  violence,  causing 
the  death  of  the  engineer,  Prickett,  and  of  the  fireman  of  the  locomo- 

2  8  Part  of  opinion  omitted. 


S44  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

tive,  and  injuring  a  section  hand  who  was  standing  by  the  side  of  the 
track. 

In  proper  order,  the  alleged  errors  of  the  court  in  its  rulings  as  to 
the  admission  and  exclusion  of  evidence  present  themselves  for  con- 
sideration. 

The  court  allowed  testimony  to  be  produced  to  show  the  deceased 
had  the  reputation  of  a  careful  and  competent  engineer  and  of  a  sober 
man.  Whether  the  explosion  was  occasioned  by  any  lack  of  ordinary 
care  on  the  part  of  the  deceased  was  at  issue.  It  was  incumbent  on 
the  plaintifT  to  maintain  the  negative  of  that  contention.  That  the 
decedent  exercised  ordinary  care  was  susceptible  of  circumstantial 
proof ;  that  is,  it  might  be  inferred  from  facts  and  circumstances  ap- 
pearing in  the  proof.  Chicago,  Burlington  &  Quincy  Railroad  Co. 
V.  Gunderson,  174  111.  495,  51  N.  E.  708;  Chicago  &  Eastern  Illinois 
Railroad  Co.  v.  Beaver,  199  111.  34,  65  N.  E.  144.  No  one  other  than 
the  fireman  was  in  the  cab  of  the  engine,  or  so  situated  as  to  be  able 
to  see  the  acts  and  conduct  of  the  deceased  engineer.  The  fireman 
was  also  killed  by  the  explosion.  The  exploding  engine  was  seen  by 
other  witnesses,  but  they  could  not  see  what  the  deceased  did  at  the 
time  when  and  immediately  before  the  explosion  occurred.  Such  be- 
ing the  fact,  we  think  the  court  properly  regarded  the  evidence  as  to 
the  general  reputation  of  the  deceased  as  a  careful  and  competent  en- 
gineer and  a  sober  man  to  be  admissible  as  testimony  tending  to  es- 
tablish that  he  exerci'^ed  ordinary  care  on  the  occasion  under  investi- 
gation. Illinois  Central  Railroad  Co.  v.  Nowicki,  148  111.  29,  35  N. 
E.  358;  Chicago,  Burlington  &  Quincy  Railroad  Co.  v.  Gunderson, 
supra.     *     *     * 

Judgment  affirmed.^' 


SECTION  2.— CONDUCT 


REX  v.  BALL. 
(Court  of  Crown  Cases  Reserved,  1807.     Russ.  &  R.  132.) 

The  prisoner  was  tried  before  Mr.  Justice  Heath,  at  the  Lewes 
summer  assizes,  in  the  year  1807,  on  an  indictment  charging  him  in  the 
first  count  with  forging  a  Bank  of  England  promissory  note  for  the 
payment  of  £5.,  with  an  intent  to  defraud  the  Governor  and  Company 
of  the  Bank  of  England.  And  on  another  count  for  uttering  the  same, 
&c.«° 

20  Soe  Southern  Kan.  Ry.  Co.  v.  Robhlns,  43  Knn.  145,  23  Pac.  113  (ISDO), 
limiting  the  use  of  such  evidence  to  cases  where  uo  eyewitnesses  were  avail- 
uhlc. 

»o  I'urt  of  opinion  omitted. 


Sec.  2)  CONDUCT  845 

The  prisoner  uttered  the  note  in  question  on  the  11th  of  Jvinc,  1807. 
The  note  was  forged  with  a  camel-hair  pencil. 

The  counsel  for  the  prosecution  offered  to  prove  that  the  prisoner 
had  uttered  another  forged  note,  in  the  same  manner,  by  the  same 
hand,  and  with  the  same  materials,  on  the  20th  day  of  March  preced- 
ing; and  that  two  ten  pound  notes  and  thirteen  one  pound  notes  of 
the  same  fabrication  had  been  found  on  the  files  of  the  Company,  on 
tlie  back  of  which  there  was  the  prisoner's  hand-writing,  which  was 
evidence  of  their  having  been  in  his  possession ;  but  it  did  not  ap- 
pear when  the  Company  received  them. 

The  learned  judge  told  the  counsel  for  the  prosecution  who  insisted 
that  such  evidence  had  been  admitted  in  a  similar  case,  that  he  would 
receive  it  subject  to  the  opinion  of  the  judges,  if  they  chose  to  risk  it; 
but  if  the  judges  should  be  of  opinion  that  the  evidence  was  inadmissi- 
ble, it  would  probably  operate  as  an  acquittal.  After  some  consulta- 
tion, the  counsel  for  the  prosecution  tendered  the  evidence,  which  was 
received  and  the  prisoner  found  guilty. 

In  Michaelmas  term,  14th  of  November,  1807,  all  the  judges  (ex- 
cept Rooke,  J.)  met,  and  the  majority  were  of  opinion,  that  the  evi- 
dence was  admissible,  subject  however  to  observations  as  to  the 
weight  of  it,  which  would  be  more  or  less  considerable,  according  to 
the  number  of  the  other  notes;  the  distance  of  time  at  which  they 
were  put  off,  and  the  situation  of  life  of  the  prisoner,  so  as  to  make  it 
more  or  less  probable  that  so  many  notes  should  pass  through  his 
hands  in  the  course  of  business. 

Chambre,  J.,  thought  the  evidence  wholly  inadmissible  as  being  evi- 
dence of  facts  wholly  distinct  from  the  transaction  which  formed 
the  subject  of  the  indictment,  and  which  the  prisoner  could  not  be 
prepared  to  answer  or  explain.^ ^     *     *     * 


REX  V.  YOKE. 
(Court  of  Crown  Cases  Reserved,  1823.     Russ.  &  R.  531.) 

The  indictment  in  this  case  charged  the  defendant  with  assault  on 
Thomas  Pearce  with  intent  to  kill.  Other  counts  charged  assault  with 
intent  to  maim.^^ 

*  *  *  Thomas  Pearce  proved,  that  on  the  3d  July  last,  he  was 
gamekeeper  to  Lord  Glastonbury,  for  the  manor  of  Compton  Dun- 
den,  in  the  county  of  Somerset.  On  that  day  he  went  to  the  said 
manor;  he  was  on  horseback,  but  left  his  horse  in  some  furze  be- 
cause he  saw  a  man  with  a  gun;  he  went  to  the  man  who  was  the 
prisoner,  and  asked  him  what  he  was  about,  and  told  him  he  was  do- 

31  For  a  collection  of  the  modern  cases  of  forgery,  see  People  v.  Marrin, 
205  N.  Y.  275,  98  N.  E.  474,  43  L.  R.  A.  (N.  S.)  754  (1912),  annotated. 
8  2  The  statement  has  been  condensed. 


846  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

ing  a  wrong  thing,  and  giving  him  a  great  deal  of  trouble ;  and  asked 
him  why  he  did  so.  Pearce  had  known  the  prisoner  for  several 
years.  He  then  asked  him  if  he  had  taken  out  a  certificate,  and 
being  answered  that  he  had  not,  he  asked  him  why  he  went  about  so ; 
upon  which  the  prisoner  said,  "You  can  pardon  me,  can't  you  ? " 
Pearce  told  him  he  could  not ;  upon  which  the  prisoner  said  he  would 
go  anywhere  with  him.  Pearce  then  proposed  that  the  prisoner 
should  go  down  to  Mr.  Ryal,  Lord  Gastonbury's  steward,  and  said 
that  if  Mr.  Ryal  would  pardon  him,  he  should  have  no  objection;  and 
the  prisoner  assented  to  go  with  him.  Pearce  observed  that  the  ram- 
rod of  the  prisoner's  gun  was  broken  short  off  in  the  middle.  They 
walked  along  together,  until  they  came  near  to  the  horse  which  was 
about  sixty  yards  off,  when  Pearce  went  on  before  him  towards  the 
horse,  and  when  he  was  at  a  short  distance  from  the  prisoner,  the 
prisoner  fired  at  his  back,  but  said  nothing.  Pearce  attempted  to  turn 
round  and  saw  the  prisoner  running,  and  attempted  to  run  after  him, 
but  his  back  seemed  to  be  broken,  and  he  could  not  get  on  at  all. 
Pearce  then  turned  back  to  the  horse,  and  after  getting  upon  it,  was 
making  his  way  home  to  a  place  called  Butley,  about  two  miles  off, 
and  had  got  about  half  a  mile  on  his  road,  at  a  place  where  there  was 
a  hedge  on  each  side,  when  he  saw  prisoner  again  in  the  lowest  part 
of  one  of  the  hedges,  and  the  moment  he  looked  round  at  him,  the 
prisoner  again  fired  his  gun,  the  discharge  from  which  beat  out  one 
of  Pearce's  eyes  and  several  of  his  teeth,  but  did  not  cause  him  to  fall 
from  his  horse.  Between  the  first  and  second  firing  was  about  a  quar- 
ter of  an  hour ;  and  when  the  prisoner  fired  the  last  time,  he  was  not 
at  a  greater  distance  from  Pearce  than  three  or  four  yards. 

In  the  course  of  the  trial  it  was  suggested  that  the  prosecution 
ought  not  to  give  evidence  of  two  distinct  felonies.  But  the  learned 
judge  thought  it  unavoidable  in  this  case;  as  it  seemed  to  him,  to  be  one 
continued  transaction  in  the  prosecution  of  the  general  malicious  in- 
tent of  the  prisoner.  Upon  another  ground  also  the  learned  judge 
thought  such  evidence  proper.  The  counsel  for  the  prisoner,  by  his 
cross  examination  of  Pearce,  had  endeavored  to  show  that  the  gun 
might  have  gone  off  the  first  time  by  accident :  and  although  the 
learned  judge  was  satisfied  that  this  was  not  the  case,  he  thought  the 
second  firing  was  evidence  to  show  that  the  first,  which  had  preceded 
it  only  one  quarter  of  an  hour,  was  wilful,  and  to  remove  the  doubt, 
if  any  existed,  in  the  minds  of  the  jury.    *    *    * 

The  jury  found  the  prisoner  guilty. 

The  learned  judge  passed  sentence  upon  him,  but  respited  the  exe- 
cution in  order  that  he  might  request  the  opinion  of  the  learned  judges, 
as  to  the  propriety  of  the  conviction. 

In  Michaelmas  term,  1823,  the  judges  considered  this  case,  and 
were  of  opinion  that  the  evidence  was  properly  received,  and  the  pris- 
oner rightly  convicted. 


Sec.  2)  CONDUCT 


847 


STATE  V.  ADAMS. 

(Supreme  Court  of  Kansas,  1878.    20  Kan.  311.) 

Bri^wEr,  J.''  Defendant  was  convicted  in  the  district  court  of 
Franklin  county  of  the  crime  of  burglary,  and  from  such  conviction 
has  appealed  to  this  court.  Many  errors  are  alleged,  some  of  which 
present  questions  of  importance  and  difficulty,  while  others  have  al- 
ready been  settled,  or  require  but  a  passing  notice.     *     *     * 

Error  is  alleged  in  the  admission  of  testimony,  in  this,  that  evi- 
dence was  admitted  which  simply  tended  to  show  defendant  guilty  of 
another  ofifense,  and  in  no  manner  tended  to  connect  him  with  the 
crime  charged.    The  rule  of  law  applicable  to  questions  of  this  kind 
is  well  settled.     It  is  clear,  that  the  commission  of  one  offense  cannot 
be  proven  on  the  trial  of  a  party  for  another,  merely  for  the  purpose 
of  inducing  the  jury  to  believe  that  he  is  guilty  of  the  latter,  because 
he  committed  the  former.     You  cannot  prejudice  a  defendant  before  a 
jury  by  proof  of  general  bad  character,  or  particular  acts  of  crime 
other  than  the  one  for  which  he  is  being  tried.     And  on  the  other 
hand,  it  is  equally  clear,  that  whatever  testimony  tends  directly  to 
show  the  defendant  guilty  of  the  crime  charged,  is  competent,  although 
it  also  tends  to  show  him  guilty  of  another  and  distinct  offense.    State 
V.  Folwell,  14  Kan.  105.     A  party  cannot,  by  multiplying  his  crimes, 
diminish  the  volume  of  competent  testimony  against  him.    A  man  may 
commit  half  a  dozen  distinct  crimes,  and  the  same  facts,  or  some  of 
them,  may  tend  directly  to  prove  his  guilt  of  all ;  and  on  the  trial  for 
any  one  of  such  crimes  it  is  no  objection  to  the  competency  of  such 
facts,  as  testimony,  that  they  also  tend  to  prove  his  guilt  of  the  others. 
By  this  rule,  whatever  is  done  in  preparation  for  a  crime,  or  in  con- 
cealing  the  fruits,  is  competent,  although  in  such  preparation  or  con- 
cealment is  committed  another  and  distinct  offense.     And  wherever 
there  is  testimony  showing  a  conspiracy  to  commit  a  crime,  evidence 
of  acts  done  intermediate  the  conspiracy  and  the  crime,  in  preparation 
of  means  for   such   crime,   is   competent,   and  that   notwithstanding 
through  some  outside  intervention  the  means  so  prepared  are  not  ac- 
tually used,  but  the  crime  is  otherwise  accomplished. 

Within  the  scope  of  these  rules  comes  the  testimony  objected  to  in 
the  case  at  bar.  The  facts  are  these :  The  charge  was  burglary,  in 
breaking  into  a  store.  The  information  was  against  four  parties. 
One  was  called  as  a  witness  by  the  state,  and,  admitting  himself  to  be 
an  accomplice,  testified  that  all  four  were  engaged  in  the  burglary ; 
that  they  all  met,  two  nights  prior  thereto  and  arranged  for  commit- 
ting the  crime,  and  fixed  the  time  at  which  it  should  be  committed ; 
thai  defendant  then  said  that  a  bar  of  iron  and  a  pair  of  pinchers  was 
all  that  was  needed,  and  he  would  get  them ;  that  at  the  time  appoint- 

8  3  Statement  and  part  of  oi*iuiou  omitted. 


848  CIRCUMSTANTIAL   EVIDENCE  (Cll.  5 

ed  all  met,  and  defendant  had  with  him  the  bar  of  iron  and  the  pinch- 
ers. Other  witnesses  testified  that  on  the  day  before  the  burglary  they 
saw  this  defendant,  and  one  of  the  other  parties  charged  witli  the 
crime,  sitting  together  in  a  store  engaged  in  conversation  for  a  long 
time.  And  then  a  witness  was  permitted  to  testify  that  he  saw  this  de- 
fendant coming  out  of  the  same  store,  after  such  conversation,  with  a 
carpenter's  brace,  which  he  hid  behind  some  coffin  boxes,  and  which, 
after  his  departure,  was  taken  and  returned  to  the  owner.  This  last  is 
the  testimony  objected  to.  As  detailed  by  the  witnesses  it  establishes 
an  independent  crime,  that  of  larceny.  As  such,  say  counsel,  it  is  in- 
competent. Nor  is  it  competent  as  evidence  of  preparation,  for  the 
brace  was  not  an  instrument  intended  to  be  used,  or  in  fact  used  in  the 
burglary.  To  this  we  reply,  that  the  state,  having  offered  evidence  of 
a  conspiracy  and  agreement  between  the  parties  to  commit  the  crime, 
might  properly  show  any  conduct  or  acts  of  either  thereafter  tending 
to  sustain  the  evidence  of  the  agreement,  and  indicating  preparation 
to  accomplish  the  crime,  or  remove  the  fruits. 

It  is  not  essential  that  the  state  establish  beyond  peradventure  that 
the  acts  or  conduct  were  based  upon  the  conspiracy,  or  in  reference  to 
the  crime ;  it  is  enough  that  they  harmonize  with  and  tend  to  con- 
firm the  charge  of  the  conspiracy,  and  are  reasonably  indicative  of 
preparation  for  the  crime.  If  no  act  or  conduct  of  the  defendant 
could  be  shown,  unless  the  motive  therefor,  or  the  connection  between 
it  and  the  crime,  were  made  undisputably  clear,  the  range  of  inquiry 
would  be  limited  and  narrow.  It  is  enough  that  the  act  has  an  appar- 
ent or  probable  connection  with  the  crime;  and  then  the  motive  of 
the  defendant,  and  the  weight  of  it  as  testimony,  are  to  be  considered 
by  the  jury.  The  fact  that  defendant  and  another  of  the  four  impli- 
cated in  the  conspiracy  were  engaged  for  a  long  time  in  private  con- 
versation the  noon  prior  to  the  burglary,  may  of  itself,  when  the  na- 
ture and  substance  of  their  conversation  is  unknown,  prove  nothing; 
yet  it  is  a  circumstance  harmonizing  with  the  alleged  conspiracy,  and 
proper  for  the  consideration  of  the  jury  in  determining  whether  there 
was,  as  charged,  such  a  conspiracy.  So,  while  the  testimony  of  the 
accomplice  is,  that  a  bar  of  iron  and  pinchers  were  to  be  and  were  the 
instruments  of  the  crime,  may  not  the  state  show  that  defendant  was 
engaged  between  the  conspiracy  and  the  crime  in  procuring  other  in- 
struments therefor?  That  a  brace  and  bit  might  be  very  serviceable 
in  forcing  an  entrance  through  a  door,  cannot  be  doubted ;  that  the 
brace  stolen  by  defendant  was  not  used  in  the  burglary,  was  prevented 
by  the  act  of  one  who  witnessed  its  larceny ;  that  it  was  intended  to 
be  so  used,  is  not  affirmatively  shown.     Rut  inasmuch  as  it  was  an 

•  instrument  one  intending  burglary  might  naturally  seek  to  obtain,  as 
it  was  taken  intermediate  the  conspiracy  and  the  crime,  and  immedi- 
ately after  a  long  interview  between  two  of  the  conspirators,  the  tak- 
ing and  concealment  of  it  was  a  circumstance  which  might  fairly  be 

I  presented  to  the  jury  for  their  consideratidn. 


Sec.  2)  CONDUCT  849 

Suppose,  that  instead  of  stealing  a  brace,  the  defendant  had  on 
that  day  gone  many  miles  away  and  brought  his  own  brace  thence  to 
a  place  whence  it  could  easily  be  obtained  on  the  coming  night  for  the 
contemplated  burglary,  and  that  then,  without  the  knowledge  of  de- 
fendant, it  was  taken  away  by  some  third  party:  could  not  this  cir- 
cumstance be  shown,  and  that,  notwithstanding  the  testimony  of  the 
accomplice  as  to  what  was  agreed  to  be  and  what  was  in  fact  used? 
Would  not  the  act  be  one  tending  to  show  preparation — a  preparation 
made  fruitless  by  the  unexpected  act  of  another?  Could  it  not  be 
shown  that  one  charged  with  homicide,  immediately  prior  thereto, 
was  providing  himself  with  several  weapons,  though  only  one  was  in 
fact  used  ?  and  if  so,  does  the  manner  in  which  he  so  provides  himself 
afifect  the  competency  of  the  testimony?  If  one  weapon  he  stole,  one 
he  borrowed,  and  one  (his  own)  he  simply  put  in  order,  would  proof 
as  to  the  first  be  incompetent,  while  evidence  as  to  the  others  was  ad- 
missible? and  must  it  be  af^rmatively  shown  that  each  weapon  was 
procured  with  reference  to  the  homicide,  before  evidence  concerning 
its  procurement  is  competent?  or  are  the  facts  concerning  all  to  be 
put  in  evidence,  leaving  their  weight  to  be  determined  by  the  jury? 
This  we  think  must  be  laid  down  as  the  true  rule :  that  where  there , 
is  evidence  of  a  conspiracy  to  commit  a  crime,  and  of  its  subsequent!  k-j)* 
commission,  the  state  may  in  support  and  corroboration  thereof  show- 
any  act  or  conduct  of  the  alleged  conspirators  intermediate  the  con- 
spiracy and  the  crime,  which  apparently  recognizes  the  existence  of, 
the  conspiracy,  or  reasonably  indicates  preparation  to  commit  the 
crime,  or  preserve  its  fruits;  and  this,  notwithstanding  such  special 
act  of  preparation  was  not  the  one  discussed  and  agreed  upon  by  the 
conspirators,  and  is  rendered  actually  fruitless  and  unavailing  by  the, 
unexpected  interference  of  third  parties,  and  also  involves  the  com-^ 
mission  of  another  and  distinct  crime.     State  v.  Cowell,  12  Nev.  337 ; 

Hester  v.  Commonwealth,  Sup.  Ct.  of  Penn.,  6  Cent.  Law  J.  395. 
*     *     * 

Judgment  affirmed. 


MAKIN  et  ux.  v.  ATTORNEY  GENERAL  FOR  NEW  SOUTH 

WALES. 

(Privy  Council,  1893.     L.  R.  [1894]  A.  C.  57.) 

The  Lord  Chancellor.'*  The  appellants  in  this  case  were  tried 
and  found  guilty  at  the  Sydney  Gaol  Delivery  held  at  Darlinghurst 
of  the  murder  of  the  infant  child  of  one  Amber  Murray.  The  learn- 
ed judge  before  whom  the  case  was  tried  deferred  passing  sentence 

•  *  Statement  and  part  of  opinion  omitted. 
HiNT.Ev. — 54 


850  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

until  after  the  argument  of  the  special  case  which  he  stated  for  the 
opinion  of  the  Supreme  Court  of  New  South  Wales. 

The  points  reserved  by  the  learned  judge  were:  First,  that  his 
honour  was  wrong  in  admitting  evidence  of  the  finding  of  other 
bodies  than  the  body  of  the  child  alleged  to  be  Horace  Amber  Mur- 
ray.    *     *     * 

Special  leave  was  granted  to  appeal  to  this  Board  from  the  judg- 
ment of  the  Supreme  Court  of  New  South  Wales,  some  of  the  ques- 
tions raised  being  of  grave  and  general  importance. 

At  the  close  of  the  argument  before  their  Lordships  they  intimated 
that  they  would  advise  Her  Majesty  that  the  appeal  should  be  dis- 
missed, and  that  they  would  state  their  reasons  for  this  advice  on  a 
future  occasion. 

There  can  be  no  doubt,  in  their  Lordships'  opinion,  that  there  was 
ample  evidence  to  go  to  the  jury  that  the  infant  was  murdered.  In- 
deed, that  point  was  scarcely  contested  in  the  argument  of  the  learned 
counsel  for  the  appellants.  The  question  which  their  Lordships 
had  to  determine  was  the  admissibility  of  the  evidence  relating  to 
the  finding  of  other  bodies,  and  to  the  fact  that  other  children  had 
been  entrusted  to  the  appellants. 

In  their  Lordships'  opinion  the  principles  which  must  govern  the 
decision  of  the  case  are  clear,  though  the  application  of  them  is  by 
no  means  free  from  difficulty.  It  is  undoubtedly  not  competent  for 
the  prosecution  to  adduce  evidence  tending  to  shew  that  the  accused 
has  been  guilty  of  criminal  acts  otlier  than  those  covered  by  the  in- 
dictment, for  the  purpose  of  leading  to  the  conclusion  that  the  ac- 
cused is  a  person  likely  from  his  criminal  conduct  or  character  to 
have  committed  the  offence  for  which  he  is  being  tried.  On  the  other 
hand,  the  mere  fact  that  the  evidence  adduced  tends  to  shew  the 
commission  of  other  crimes  does  not  render  it  inadmissible  if  it  be 
relevant  to  an  issue  before  the  jury,  and  it  may  be  so  relevant  if  it 
bears  upon  the  question  whether  the  acts  alleged  to  constitute  the 
crime  charged  in  the  indictment  were  designed  or  accidental,  or  to 
rebut  a  defence  which  would  otherwise  be  open  to  the  accused.  The 
statement  of  these  general  principles  is  easy,  but  it  is  obvious  that  it 
may  often  be  very  difficult  to  draw  the  line  and  to  decide  whether 
a  particular  piece  of  evidence  is  on  the  one  side  or  the  other. 

The  principles  which  their  Lordships  have  indicated  appear  to  be 
on  the  whole  consistent  with  the  current  of  authority  bearing  on  the 
point,  though  it  cannot  be  denied  that  the  decisions  have  not  always 
been  completely  in  accord. 

The  leading  authority  relied  on  by  the  Crown  was  the  case  of  Reg. 
V.  Gcering,  18  L.  J.  (N.  S.)  M.  C.  215,  wliere  on  tlie  trial  of  a  pris- 
oner for  the  murder  of  her  husband  by  administering  arsenic  evi- 
dence was  tendered  with  the  view  of  shewing  that  two  sons  of  the 
prisoner  who  had  formed  part  of  the  same  family,  and  for  whom  as 
well  as   for  her  husband   tiie  prisoner  had  cooked  their   food,   had 


Sec.  2)  CONDUCT  851 

died  of  poison,  the  symptoms  in  all  these  cases  being  the  same.  The 
evidence  was  admitted  by  Pollock,  C.  B.,  who  tried  the  case ;  he  held 
that  it  was  admissible,  inasmuch  as  its  tendency  was  to  prove  that 
the  death  of  the  husband  was  occasioned  by  arsenic,  and  was  rele- 
vant to  tlie  question  whether  such  taking  was  accidental  or  not.  The 
Chief  Baron  refused  to  reserve  the  point  for  the  consideration  of 
the  judges,  intimating  that  Alderson,  B.,  and  Talfourd,  J.,  concurred 
with  him  in  his  opinion. 

This  authority  has  been  followed  in  several  subsequent  cases.  And 
in  the  case  of  Reg.  v.  Dossett,  2  C.  &  K.  306,  which  was  tried  a  few 
years  previously,  the  same  view  was  acted  upon  by  Maule,  J.,  on  a 
trial  for  arson,  where  it  appeared  that  a  rick  of  wheat-straw  was 
set  on  fire  by  the  prisoner  having  fired  a  gun  near  to  it.  Evidence 
was  admitted  to  shew  that  the  rick  had  been  on  fire  the  previous 
day,  and  that  the  prisoner  was  then  close  to  it  with  a  gun  in  his  hand. 
Maule,  J.,  said:  "Although  the  evidence  offered  may  be  proof  of 
another  felony,  that  circumstance  does  not  render  it  inadmissible,  if 
the  evidence  be  otherwise  receivable.  In  many  cases  it  is  an  im- 
portant question  whether  a  thing  was  done  accidentally  or  wiilful- 
jy »     *     *     * 

The  learned  counsel  for  the  appellants  placed  much  reliance  on  the 
case  of  Reg.  v.  Oddy,  2  Den.  C.  C.  265,^'  the  only  one  which  has  been 
considered  by  the  Court  for  Crown  Cases  Reserved.  It  was  there  held 
that  on  the  trial  of  an  indictment  containing  counts  for  stealing,  and 
for  receiving  the  property  knowing  it  to  be  stolen,  evidence  of  the 
possession  by  the  prisoner  of  other  property  stolen  some  time  before 
from  other  persons  was  not  admissible  upon  the  count  for  receiving 
with  guilty  knowledge,  in  respect  of  which  alone  it  had  been  admitted 
by  the  recorder.  Lord  Campbell  said  that  in  his  opinion  there  was 
no  more  ground  for  admitting  the  evidence  under  the  third  count 
(for  receiving)  than  under  the  first  or  second  (for  stealing).  Under 
the  two  latter,  it  would  have  been  evidence  of  the  prisoner  being  a 
bad  man,  and  likely  to  commit  the  offence  there  charged.  So  under 
the  third  count  the  evidence  would  only  shew  the  prisoner  to  be  a  bad 
man;  it  would  not  be  direct  evidence  of  the  particular  fact  in  issue. 
Aldersen,  B.,  in  his  judgment  said  that  the  evidence  merely  went  to 
shew  tliat  the  prisoner  was  in  possession  of  other  property  which 
had  been  stolen  in  the  previous  December,  and  not  that  he  had  re- 
ceived such  property  knowing  it  to  be  stolen;  that  the  mere  posses- 
sion of  stolen  property  was  evidence  prima  facie,  not  of  receiving,  but 
of  stealing,  and  to  admit  such  evidence  in  the  case  before  him  would 
be  to  allow  a  prosecutor,  in  order  to  make  out  that  a  prisoner  had 
received  property  with  a  guilty  knowledge  which  had  been  stolen  in 
March,  to  shew  that  tlie  prisoner  had  in  the  December  previously 

3  6  See  People  v.  Lindley,  2S2  111.  377,  118  N.  E.  719  (1918),  as  to  when  other 
offenses  are  admissible  on  a  charge  of  receiving  stolen  property. 


852  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

Stolen  some  other  property  from  another  place,  and  belonging  to 
other  persons.  In  otlier  words,  they  were  asked  to  say  that  in  order 
to  shew  that  the  prisoner  had  committed  one  felony,  the  prosecutor 
might  prove  that  he  committed  a  totally  different  felony  some  time 
before. 

Their  Lordships  do  not  think  that  the  judgments  in  Reg.  v.  Oddy, 
2  Den.  C.  C.  265,  at  all  conflict  with  the  judgment  in  Reg.  v.  Geer- 
ing,  18  L.  J.  (N.  S.)  M.  C.  215,  and  the  other  cases  referred  to. 

Their  Lordships  do  not  think  it  necessary  to  enter  upon  a  detailed 
examination  of  the  evidence  in  the  present  case.  The  prisoners  had 
alleged  that  they  had  received  only  one  child  to  nurse ;  that  they  had 
received  10s.  a  week  whilst  it  was  under  their  care,  and  that  after  a 
few  weeks  it  was  given  back  to  the  parents.  When  the  infant  with 
whose  murder  the  appellants  were  charged  was  received  from  the 
mother  she  stated  that  she  had  a  child  for  them  to  adopt.  Mrs. 
Makin  said  that  she  would  take  the  child,  and  Makin  said  that  they 
would  bring  it  up  as  their  own  and  educate  it,  and  that  he  would 
take  it  because  Mrs.  Makin  had  lost  a  child  of  her  own  two  years 
old.  Makin  said  that  he  did  not  want  any  clothing;  they  had  plenty 
of  their  own.  The  mother  said  that  she  did  not  mind  his  getting  i3. 
premium  so  long  as  he  took  care  of  the  child.  The  representation 
was  that  the  prisoners  were  willing  to  take  the  child  on  payment  of 
the  small  sum  of  £3.,  inasmuch  as  they  desired  to  adopt  it  as  their 
own. 

'  Under  these  circumstances  their  Lordships  cannot  see  that  it  was 
irrelevant  to  the  issue  to  be  tried  by  the  jury  that  several  other  in- 
fants had  been  received  from  their  mothers  on  like  representations, 
;  and  upon  payment  of  a  sum  inadequate  for  the  support  of  the  child 
for  more  than  a  very  limited  period,  or  that  the  bodies  of  infants  had 
been  found  buried  in  a  similar  manner  in  the  gardens  of  several  hous- 
es occupied  by  the  prisoners. 

In  addition  to  the  question  whether  the  evidence  objected  to  in  the 
present  case  was  admissible  the  learned  judge  (as  has  been  stated) 
reserved  for  the  opinion  of  the  Supreme  Court  the  further  questions, 
whether,  if  not  admissible,  the  prisoners  were  rightly  convicted;  and 
even  if  inadmissible,  whether  there  was  evidence  sufficient  to  sustain 
the  conviction. 

These  questions,  and  the  point  of  law  raised  by  them,  were  fully 
argued  before  their  Lordships,  and  although  their  Lordships  having 
arrived  at  the  conclusion  that  the  evidence  was  admissible  it  became 
unnecessary  for  the  determination  of  the  appeal  to  decide  them,  their 
Lordships  think  it  right  to  state  the  opinion  which  they  formed  upon 
the  important  question  of  law  involved.^'     ♦     ♦     * 

'  8«See  State  v.  Hyde,  2.34  Mo.  220,  l.'JO  S.  W.  310,  Ann.  Cas.  ini2D,  191 
(1911),  tliiit  evidence  of  uuotber  Louiieide  uiigUt  be  received  to  show  the  de- 
fendant's ujotive. 


Sec.  2)  CONDUCT  853 

THE  KING  V.  FISHER. 

(Court  of  Criminal  Appeal,  1909.     L.  R.  [1910]  1  K.  B.  149.) 

The  judgment  of  the  Court  (Lord  Alverstone,  C.  J.,  and  Channell 
and  Lord  Coleridge,  JJ.)  was  delivered  by 

Channell,  J.'^  In  this  case  the  appellant  was  charged  on  an  in- 
dictment containing  three  counts,  all  of  which  practically  related  to 
the  same  transaction.  The  appellant  obtained  on  June  4,  1909,  a 
pony  and  cart  from  the  owner,  saying  he  wanted  it  for  his  invalid  wife, 
and  that  he  would  take  it  on  a  week's  trial;  he  agreed  to  pay  £2. 
for  the  use  of  the  pony  and  cart  for  a  week  if  he  did  not  keep  it',  and  as 
some  sort  of  security  for  the  price  he  gave  a  bill  of  exchange  for 
£25.  That  was  the  transaction,  and  it  was  proved  that  his  wife  was 
not  an  invalid  and  that  the  whole  story  was  false,  and  that  a  refer- 
ence which  he  had  given  to  a  bank  was  a  useless  reference  because  he 
had  kept  the  account  at  the  bank  in  a  different  name,  and,  moreover, 
the  account  had  been  closed  some  time  before.  The  substance  of  the 
case  for  the  prosecution  was  that  this  was  a  fraudulent  transaction. 
In  the  circumstances  I  should  have  thought  that  the  evidence  was 
amply  sufficient  to  enable  the  prosecution  ta  ask  the  jury  to  convict 
the  appellant,  but  the  prosecution  proceeded  to  call  witnesses  to  speak 
to  other  cases  in  which  the  appellant  was  alleged  to  have  obtained 
goods  by  false  pretenses.  In  one  of  those  cases  the  circumstances  were 
very  similar  to  those  of  the  present  case,  but,  as  the  jury  were  not  satis- 
fied that  the  appellant  was  the  man  concerned  in  that  case,  it  has  no 
bearing  on  the  present  question;  otherwise  I  should  have  been  in- 
chned  to  think  that  the  evidence  as  to  that  case  was  material  and  ad- 
missible. The  other  cases  of  which  evidence  was  given  were  cases 
where  the  appellant  had  obtained  provender  by  falsely  representing 
in  substance  that  he  was  carrying  on  a  business  and  was  therefore  in  a 
position  to  pay  for  goods  supplied  to  him.  The  question  is  whether 
this  evidence  was  admissible  on  the  authority  of  the  cases  in  which  it 
has  been  held  that  evidence  is  admissible  to  prove  that  the  prisoner 
has  committed  other  offenses  besides  the  one  charged  in  the  indictment. 

The  question  is  one  which  has  frequently  come  before  this  court  and 
before  judges  at  the  assizes,  and  it  is  one  tliat  is  not  always  easy  to  de- 
cide.   The  principle  is  clear,  however,  and  if  the  principle  is  attended 
to  I  think  it  will  usually  be  found  that  the  difficulty  of  applying  it  to  a 
particular  case  will  disappear.     The  principle  is  that  the  prosecution! 
are  not  allowed  to  prove  that  a  prisoner  has  committed  the  oft'ence  I 
with  which  he  is  charged  by  giving  evidence  that  he  is  a  person  of  / 
bad  character  and  one  who  is  in  the  habit  of  committing  crimes,  for 
that  is  equivalent  to  asking  the  jury  to  say  that  because  the  prisoner 
has  committed  other  offenses  he  must  therefore  be  guilty  of  the  par- 
ticular offence  for  which  he  is  being  tried.     But  if  the  evidence  of  other  ^ 

8  7  Statement  omitted. 


8oi  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5- 

'  offences  does  go  to  prove  that  he  did  commit  tlie  offence  charged,  it 
is  admissible  because  it  is  relevant  to  the  issue,  and  it  is  admissible 
not  because,  but  notwithstanding  that,  it  proves  that  the  prisoner  has 

I  committed  another  offence.  For  example,  on  a  charge  of  embezzle- 
ment, if  the  defence  is  tliat  the  failure  to  account  for  the  money  is 
due  to  a  mistake  on  the  part  of  the  prisoner,  evidence  is  admissible  to 
prove  other  instances  of  the  same  kind,  because  tliat  evidence  tends 
to  prove  that  in  the  particular  case  the  prisoner  had  not  made  a  mis- 
take. Another  instance  is  where  a  person  obtains  goods  by  paying  for 
them  with  a  cheque  which  is  subsequently  dishonoured,  in  which  case 
evidence  is  admissible  to  prove  other  cases  in  which  the  prisoner  has 
obtained  goods  by  cheques  which  were  dishonoured.    In  other  words, 

I  whenever  it  can  be  shewn  that  the  case  involves  a  question  as  to 
there  having  been  some  mistake  or  as  to  the  existence  of  a  system  of 
fraud,  it  is  open  to  the  prosecution  to  give  evidence  of  other  instances 
of  tlie  same  kind  of  transaction,  notwithstanding  that  tlie  evidence 
goes  to  prove  the  commission  of  other  oft'ences,  in  order  to  negative  the 
suggestion  of  mistake  or  in  order  to  shew  the  existence  of  a  syste- 
matic course  of  fraud. 

Applying  these  principles  to  this  case,  the  charge  here  is  that  the 
prisoner  obtained  the  pony  and  cart  from  the  prosecutor  by  making 
certain  statements.  The  falsity  of  those  statements  is  not  proved  by 
giving  evidence  that  in  other  cases  the  prisoner  made  other  false  state- 
ment, though  it  does  tend  to  shew  that  the  prisoner  was  a  swindler. 
But  there  is  no  rule  of  law  that  swindling  is,  as  regards  proof,  differ- 
ent from  any  other  offence,  and  if  a  man  is  charged  with  swindling 
in  a  particular  manner,  his  guilt  cannot  be  proved  by  shewing  that  he 
has  also  swindled  in  some  other  manner.  We  are  of  opinion  that  the 
evidence  as  to  the  other  cases  was  inadmissible  in  this  case,  because  it 
was  not  relevant  to  prove  that  he  had  committed  the  particular  fraud 
for  which  he  was  being  charged,  in  that  it  only  amounted  to  a  sug- 
gestion that  he  was  of  a  generally  fraudulent  disposition.  On  the 
other  hand,  if  all  the  cases  had  been  frauds  of  a  similar  character,  shew- 

l  ing  a  systematic  course  of  swindling  by  the  same  method,  then  the 

(•evidence  would  have  been  admissible. 

In  the  circumstances  of  this  case  we  cannot  come  to  any  other  con- 
clusion but  that  the  jury  may  have  been  iniluenced  by  the  evidence  of 
the  other  cases,  and,  therefore,  although  tliere  was  sufficient  evidence 
to  convict  the  prisoner  without  the  evidence  as  to  the  other  cases,  in 
accordance  with  the  rule  laid  down  in  this  Court,  tlie  conviction  can- 
not stand. 

Appeal  allowed.*' 

88  Compare  Kor.  v.  Francis,  L.  Tt.  2  C.  C.  12S  (1874),  where  on  a  charge  of 
fraudulently  ohtainiiiK  property  hy  uiean.s  of  a  pledge  of  imitation  jewelry  it 
wa.s  hold  proper  to  iidiiiit  proof  of  other  jittempts  to  pledge  similar  jewelry. 
For  a  collection  of  the  cases  on  fraud  and  false  i)rctenses,  see  People  v.  Ber- 
covltz,  1G:j  Cal.  (XiQ,  12G  Pac.  479,  43  L.  li.  A.  (N.  S.)  6G7  (1912),  annotated. 


Sec.  2)  CONDUCT  855 

PEOPLE  V.  KATZ. 

(Court  of  Appeals  of  New  York,  1913.    209  N.  Y.  311,  103  N.  E.  305,  Ann.  Cas. 

1915A,  501.) 

Werner,  J.^^  The  defendant  appeals*  from  a  judgment  of  the  Ap- 
pellate Division  in  the  First  Department  affirming  a  judgment  enter- 
ed upon  a  verdict  at  Trial  Term,  convicting  him  of  the  crime  of  grand 
larceny  in  the  first  degree.  The  case  is  one  of  unusual  interest,  both 
in  respect  of  the  novel  scheme  or  method  by  means  of  w^hich  the 
crime  is  said  to  have  been  perpetrated,  and  the  number,  variety,  and 
importance  of  the  questions  which  v^e  are  asked  to  decide.  More 
than  300  exceptions  were  taken  by  defendant's  counsel  to  the  rulings 
of  the  trial  court,  but  many  of  these  may  be  assigned  to  groups  re- 
lating to  different  classes  of  testimony  to  which  separate  objections 
were  repeated  as  the  respective  witnesses  were  examined.  These 
groups  of  exceptions  will,  of  course  be  considered  collectively;  but 
even  this  resort  to  economy  of  space  and  time  can  only  measurably 
foreshorten  this  discussion,  because  a  careful  and  comprehensive  state- 
ment of  the  facts  *°  is  no  less  essential  than  a  thorough  discussion  of 
the  questions  of  law  involved.    *    *    * 

It  is  contended  that  the  trial  court  erred  in  receiving;  evidence  tend- 
ing to  prove  that  the  defendant  had  previously  been  concerned  in  an 
attempt  to  commit  another  and  similar  crime,  and  this  contention  is 
based  upon  the  testimony  of  one  Schwed  which  was  received  under  ob- 
jection and  exception.    *     *    * 

It  is  the  law  that  ordinarily  a  man  cannot  be  convicted  of  one  crime 
by  proof  that  he  was  guilty  of  another,  Coleman  v.  People,  55  N.  Y. 
81 ;  People  v.  Sharp,  107  N.  Y.  427,  14  N.  E.  319,  1  Am.  St.  Rep. 
851 ;  People  v.  Molineux,  168  N.  Y.  264,  61  N.  E.  286,  62  L.  R.  A. 
193;  People  v.  Governale,  193  N.  Y.  581,  86  N.  E.  554.  There  are 
various  recognized  exceptions  to  this  rule,  however,  and  one  of  tliem  ,^ 

is  that  when  guilty  knowledge,  quite  commonly  called  intent,  is  an  es- 
sential ingredient  of  the  crime  charged,  evidence  is  admissible  of 
similar  crimes  or  acts  committed  or  attempted  at  or  about  the  same 
time  by  the  person  charged.  The  reasons  for  the  rule  and  the  excep- 
tion are  equally  simple  and  obvious.  The  general  rule  is  rooted  in 
the  principle  that  a  man  may  not  be  convicted  of  one  crime  simply 
because  he  may  be  shown  guilty  of  another  when  there  is  no  connec- 
tion between  the  two.  Simple  proof  showing  that  A.  shot  B.  at  one 
time  and  place  throws  no  light  upon  the  charge  that  A.  poisoned  C 
at  another  time  and  place.     In  either  of  these  cases  guilty  knowledge 

8  9  Part  of  opinion  omitted. 

40  In  the  oiiiitted  passages  the  opinion  sets  out  in  detail  a  complicated  se- 
ries of  transactions  by  which  the  defendant  and  several  others  associated 
with  him  obtained  possession  of  a  large  amount  of  mining  stoclj:  belonging  to 
the  prosecuting  witness,  Heinze.  These  facts  are  too  extensive  to  be  printed 
in  full. 


S56  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

or  intent  is  inferable  from  the  nature  and  surroundings  of  each  act, 
and  each  must  be  judged  on  its  own  circumstances. 

Quite  another  principle  is  to  be  invoked,  however,  when  guilt  can- 
not be  predicated  upon  the  mere  commission  of  the  act  charged  as  a 
crime.'  In  such  a  case  the  general  rule  gives  way  to  the  exception 
under  which  guilty  knowledge  of  a  defendant  may  be  proved  by  evi- 
dence of  'his  complicity  in  similar  offenses  under  such  circumstances 
as  to  support  the  inference  that  the  act  charged  was  not  innocently 
or  inadvertently  committed.  Familiar  illustrations  of  this  exception 
to  the  general  rule  are  to  be  found  in  cases  of  uttering  counterfeit 
money,  in  forgery,  in  obtaining  money  under  false  pretenses,  and  in 
receiving  stolen  property.  Commonwealth  v.  Jackson,  132  Mass.  16; 
Commonwealth  v.  Bigelow,  8  Mete.  (Mass.)  235 ;  Commonwealth  v. 
Stone,  4  Mete.  (Mass.)  43 ;  Helm's  Case,  1  City  H.  Rec.  46 ;  Smith's 
Case,  1  City  H.  Rec.  49;  Commonwealth  v.  Johnson,  133  Pa.  293, 
19  Atl.  402;  Coleman  v.  People,  58  N.  Y.  555;  Copperman  v.  People, 
56  N.  Y.  591 ;  People  v.  McClure,  148  N.  Y.  95,  42  N.  E.  523 ;  Com- 
monwealth V.  Russell,  156  Mass.  196,  30  N.  E.  763;  People  v.  Ever- 
hardt,  104  N.  Y.  591,  11  N.  E.  62;  People  v.  Dolan,  186  N.  Y.  4, 
78  N.  E.  569,  116  Am.  St.  Rep.  521,  9  Ann.  Cas.  453;  People  v. 
Neff,  191  N.  Y.  210,  83  N.  E.  970;  People  v.  Marrin,  205  N.  Y.  275, 
98  N.  E.  474,  43  L.  R.  A.  (N.  S.)  754. 

The  application  to  the  case  at  bar  of  the  principle  upon  which  these 
cases  were  decided  can  be  simply  illustrated  in  the  light  of  a  few 
undisputed  facts.  If  the  evidence  had  tended  to  show  that  the  de- 
fendant had  been  guilty  of  a  simple  common-law  larceny,  by  a  physical 
trespass  and  a  felonious  asportation  of  the  property,  it  would  be  true 
that  evidence  of  other  similar  larcenies  would  have  been  inadmissible. 
The  reason  is  obvious.  In  such  a  case  the  guilty  knowledge  or  in- 
tent is  proved  by  the  act  itself,  and  it  would  add  nothing  to  the  proof 
of  guilt  to  show  that  on  other  occasions  the  defendant  had  committed 
other  similar  larcenies.  That  is  not  the  case  at  bar.  Here  the  larceny 
was  committed  by  means  of  a  conspiracy  which  required  a  number  of 
actors  to  carry  out  the  involved  and  ingenious  plot,  and  it  is  quite 
possible  that  an  innocent  man,  who  had  inadvertently  and  unfortu- 
nately made  a  busmess  connection  with  one  or  more  of  the  conspira- 
tors, might  have  been  drawn  into  the  meshes  of  the  scheme  without 
any  criminal  knowledge  or  purpose  on  his  part.  That  is  precisely  the 
position  which  the  defendant  claims  to  have  occupied  in  this  transac- 
tion. Although  confessedly  a  participant  in  certain  phases  of  the 
scheme,  he  asked  the  jury  to  believe  that  his  connection  with  it  was 
free  from  criminality,  and  his  story  was  such  that  if  the  jury  had  found 
for  him  the  verdict  could  not  have  been  questioned  for  lack  of  evi- 
dence to  support  it.  His  narration  of  the  affair,  while  strongly  in- 
dicative of  guilt,  was  not  incompatible  with  innocence,  and  therefore 
the  real  issue  was  whether  he  was  a  guiltless  scapegoat  or  a  guilty 
conspirator.     That  is  exactly  the  typical  case  in  which  evidence  of 


Sec.  2)  CONDUCT  857 

other  similar  offenses  may  be  proven.  The  talk  with  Schwed  about 
the  $15,000  loan  was  practically  identical,  in  point  of  time,  with  the 
transaction  in  the  case  at  bar,  and  it  related  to  a  loan  upon  the  Heinze 
mining  stocks.  The  scheme  suggested  was  in  all  its  essentials  the 
same  as  this,  and  the  conversation  about  it  led  to  a  meeting  of  some  of 
the  very  persons  who  now  figure  among  the  conspirators  before  the 
court.  The  fact  that  the  first  scheme  was  not  carried  to  a  successful 
conclusion  does  not  affect  the  admissibility  of  the  evidence.  It  was 
just  as  competent  and  cogent  for  the  purpose  of  proving  the  defend- 
ant's state  of  mind  as  it  would  have  been  if  the  thing  had  actually 
been  accomplished.  We  conclude  therefore  that  the  evidence  of 
Schwed  was  competent.  *  *  * 
Judgment  affirmed. 


STATE  V.  HILL. 

(Supreme  Court  of  Missouri,  1918.    273  Mo.  329,  201  S.  W.  58.) 

Walker,  P.  J.*^  The  appellant  and  one  Marshall  Dumas  were 
charged  in  an  information  filed  by  the  prosecuting  attorney  of  Ray 
county  with  murder  in  the  first  degree.  A  severance  was  granted,  and 
at  the  February  term,  1917,  of  the  circuit  court  of  said  county,  appel- 
lant was  tried,  and  the  jury  failing  to  agree,  the  case  was  continued 
until  the  May  term,  1917.  Upon  a  trial  at  this  term  appellant  was  con- 
victed as  charged,  and  her  punishment  assessed  at  life  imprisonment  in 
the  penitentiary.    From  this  judgment  she  appeals.     *     *     * 

III.  The  admission  of  testimony  tending  to  show  an  attempted  poi- 
soning *-  of  the  deceased  by  appellant  several  months  before  the  homi- 
cide is  urged  as  error.  The  burden  of  this  objection  is  that  no  connec- 
tion was  shown  between  this  attempt  and  the  crime  for  which  appel- 
lant was  being  tried.  This  complaint  falls  short  of  raising  a  tenable 
objection  to  the  admission  of  the  testimony.  There  was  no  pretense  on 
the  part  of  the  state  that  the  attempted  crime  was  a  part  of  the  one 
committed.  It  was  in  no  sense  the  purpose  of  the  introduction  of  this 
testimony  to  establish  the  crime,  but  to  show  the  intent  with  v/hich  it 
was  committed.  On  this  ground  testimony  of  this  character,  with 
the  modification  we  will  hereafter  refer  to,  is  held  to  be  admissible. 

White,  Commissioner,  in  State  v.  Patterson,  271  Mo.  99,  109,  196  S. 
W.  3,  has  recently  with  painstaking  care,  reviewed  and  compiled  the 
numerous  Missouri  cases  on  this  subject,  beginning  with  a  learned  opin- 
ion by  Philips,  Commissioner  (State  v.  Myers,  82  Mo.  558,  52  Am.  Rep. 
389),  which  for  many  years  has  been  the  leading  case  on  the  subject. 
The  rule  deduced  from  these  cases  is  that  where  the  act  constituting 
the  crime  speaks  for  itself  as  showing  the  intent,  or  where  the  criminal 


*i  Part  of  opinion  omitted. 

♦2  The  actual   killing   in   this  case  was   accomplished  by   cutting   the  de- 
ceased's throat. 


858  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

intent  is  presumed  from  the  act  itself,  such  evidence  is  not  admissible ; 
but  where  different  inferences  may  be  drawn  regarding  the  intent  with 
which  the  criminal  act  was  done,  and  tlie  circumstances  of  the  act  may- 
be susceptible  of  an  interpretation  indicating  innocence,  then  such  evi- 
dence is  admissible.  Here  the  appellant  was  absent  at  the  time  of  the 
homicide.  Its  actual  commission  was  admitted  by  the  witness  Alonzo 
Jones.  He  and  the  appellant's  paramour,  Dumas,  alone  testify  to  her 
having  provoked  the  crime  by  offering  an  incentive  for  its  commission. 
She  assails  the  truth  of  this  testimony.  Clothed  as  she  is  with  a  pre- 
sumption of  innocence,  different  inferences  may  be  drawn  as  to  the  in- 
tent with  which  the  crime  was  committed.  H  evidence  existed  sus- 
ceptible of  an  interpretation  indicative  of  her  innocence,  she  would 
have  been  entitled  to  its  admission ;  on  the  other  hand,  if  facts  existed 
of  the  attempted  commission  by  her  of  a  former  act  against  the  de- 
ceased of  a  kindred  nature  to  the  one  with  which  she  was  charged, 
taken  in  connection  with  the  facts  and  circumstances  of  her  life  and 
that  of  the  deceased,  all  of  which  were  in  evidence,  then  the  testimony 
was  properly  admitted.  It  is  true  that  this  evidence  is  based  primarily 
upon  the  testimony  of  the  witness  Dumas,  but  the  evidence  of  the 
former  crime  was  not  confined  to  her  alleged  statement.  Confined  to 
Dumas,  its  credibiHty  might  be  open  to  serious  question,  but  not  its 
admissibility.  Dumas'  testimony,  however,  is  corroborated  by  that  of 
the  doctor  who  stated  that  he  had  treated  the  deceased  for  strychnine 
poisoning  at  about  the  time  the  appellant  stated  she  had  made  the  at- 
tempt. The  character  of  this  testimony,  therefore,  as  tending  to 
show  an  intent  to  commit  tlie  crime  for  which  she  was  on  trial,  is  suf- 
ficiently established  to  authorize  its  admission.  *  *  * 
Judgment  affirmed. 


STATE  V.  WALDRON. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1912.     71  W.  Va.  1,  75  S.  E. 

558.) 

Miller,  J.*'  On  an  indictment  for  the  murder  of  Ben  Tate  de- 
fendant was  acquitted  of  murder  in  the  first  degree,  but  found  guilty 
of  murder  in  the  second  degree,  and  the  judgment  below  was  that  he 
be  confined  in  the  penitentiary  for  the  period  of  ten  years. 

The   homicide,   admitted,  occurred  on   the  night  of   January  , 

1910,  a  Sunday  night,  in  a  brothel  in  Keystone,  McDowell  County. 
Defendant  was  a  deputy  United  States  Marshal,  who  at  the  request 
of  White,  town  sergeant,  had  gone  with  him  to  this  house  to  make 
an  arrest  for  alleged  ilHcit  sales  of  intoxicating  liquors.  While  wait- 
ing the  return  of  White  from  the  Mayor's  office  with  warrants,  de- 
fendant, who  before  White  left  to  secure  the  warrants,  had  been  in- 

*8  Part  of  opinion  of  Miller,  J.,  and  dissenting  opinion  of  Williams,  J., 
omitted. 


Sec.  2)  CONDUCT  859 

vited  on  the  outside  of  the  house  by  Tate  and  his  companion  Gilles- 
pie, patrons  of  the  house,  and  had  declined,  was  on  their  coming  out 
of  the  room  of  the  mistress  of  this  house,  enticed  by  them  into  an 
adjoining  room,  where,  almost  instantly,  the  door  being  shut  by  one 
of  them,  the  difficulty  occurred,  resulting  not  only  in  the  death  of 
Tate,  but  of  Gillespie  also,  from  pistol  shots  fired  by  defendant. 

Defendant  was  the  only  living  witness  as  to  what  actually  toolc 
place  in  the  room  where  the  homicide  occurred.  He  admitted  the 
killing,  but  on  his  trial  relied  on  self  defense. 

The  controversy  here  is  reduced  to  a  few  questions  relating  to  the 
rejection  of  certain  evidence  proposed  by  the  prisoner,  and  to  the 
giving  and  rejecting  of  certain  instructions  to  the  jury.     *     *     * 

In  connection  with  this  testimony  and  as  further  tending  to  show 
Tate  and  Gillespie  wefe  the  aggressors,  and  establish  his  theory  of 
self  defense,  the  prisoner  proposed,  but  was  not  permitted  to  prove, 
by  two  witnesses,  Baxter  and  Hermanson,  that  but  a  few  moments 
before  the  homicide,  both  Tate  and  Gillespie,  in  connection  with  two 
or  three  other  men,  were  in  a  violent  state  of  mind  towards  Herman- 
son;  that  but  a  few  moments  before  White  and  Waldron  entered 
the  house  Tate  and  Gillespie,  as  Baxter  thought  from  their  actions, 
acting  under  the  influence  of  liquor,  jumped  on  Hermanson,  in  aid 
of  their  lewd  mistresses,  and  without  other  cause,  beat  him,  while 
Hermanson  was  there  waiting  for  two  other  women  to  come  down 
stairs  and  pay  him  some  money  he  claimed  they  owed  him. 

The  attorney  general  and  associate  counsel  justify  the  action  of 
the  court  in  excluding  this  evidence,  not  on  the  ground  that  it  might 
not  have  influenced  the  verdict  of  the  jury,  but  on  the  grounds,  (a) 
that  evidence  of  a  single  act  of  violence  is  not  admissible  to  establish 
the  turbulent  and  violent  character  of  deceased;  (b)  that  the  con- 
duct of  Tate  and  Gillespie  towards  Hermanson  was  unknown  to  Wal- 
dron, and  if  for  no  other  was  inadmissible  for  this  reason;  and,  (c) 
because  the  conduct  of  Tate  and  Gillespie  constituted  no  part  of  the 
res  gestas,  had  no  bearing  upon  or  connection  with  the  homicide,  that 
there  was  no  causal  or  even  explanatory  relation  between  that  recent 
occurrence  and  the  homicide. 

In  homicide  cases,  where  the  general  character  of  the  deceased  for 
turbulence  and  violence  is  involved,  the  general  rule,  establised  by 
the  weight  of  authority,  no  doubt  is,  that  evidence  of  isolated  facts 
or  specific  acts  forming  no  part  of  the  res  gestae,  and  in  no  way  con- 
nected with  defendant,  will  not  be  received  in  evidence.  21  Cyc.  910, 
and  cases  cited  in  notes.  But  when  self  defense  is  relied  on,  and 
where  as  in  this  case,  there  is  evidence  tending  to  show  the  deceased 
was  the  aggressor,  the  dangerous  character  of  deceased  may  be  shown 
by  the  facts  and  circumstances  attending  the  homicide,  and  so  con- 
nected with  it  as  to  constitute  a  part  of  the  res  gestae.  21  Cyc.  909; 
1  Wigmore  on  Ev.,  section  363;  State  v.  Morrison,  49  W.  Va.  210, 
218,  38  S.  E.  481 ;   Harrison  v.  Com.,  79  Va.  374,  52  Am.  Rep.  634. 


860  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

Moreover,  Mr.  Wigmore,  1  Wigmore  on  Ev.,  section  198,  citing  nu- 
merous cases  says:  "When  the  turbulent  character  of  the  deceased, 
in  a  prosecution  for  homicide,  is  relevant  (under  the  principle  of  ,§ 
63,  ante),  there  is  no  substantial  reason  against  evidencing  the  char- 
acter by  particular  instances  of  violent  or  quarrelsome  conduct.  Such 
instances  may  be  very  significant ;  their  number  can  be  controlled  by 
the  trial  Court's  discretion;  and  the  prohibitory  considerations  ap- 
plicable to  an  accused's  character,  (ante,  §  194)  have  here  little  or 
no  force."  And  whether  in  such  cases  as  the  one  at  bar  there  is 
necessity  of  showing  defendant's  knowledge  of  deceased's  charac- 
ter, this  writer,  in  section  63,  referred  to,  says :  "The  reason  for 
the  hesitation,  once  observable  in  many  Courts,  in  recognizing  this 
sort  of  evidence,  and  the  source  of  much  confusion  upon  the  sub- 
ject, was  the  frequent  failure  to  distinguish  this  use  of  the  deceased's 
character  from  another  use,  perfectly  well-settled,  but  subject  to  a 
peculiar  limitation  not  here  necessary, — the  use  of  communicated 
character  to  show  the  fact  and  the  reasonableness  of  the  defendant's 
apprehension  of  violence.     *     *     * 

■  We  agree  with  this  writer  that  reason,  if  not  the  weight  of  judicial 
decision,  favors  the  admissibility  in  evidence  of  such  facts,  when  the 
question  is  the  knowledge  or  belief  of  the  defendant  in  the  danger- 
ous character  of  deceased,  and  the  necessity  for  acting  in  self  de- 
fense. And  on  parity  of  reasoning  where  self  defense  is  relied  on 
and  there  is  some  evidence  that  deceased  was  the  aggressor,  and  the 
question  is  what  the  deceased  probably  did  do,  his  quo  animo,  as 
evidenced  by  his  recent  acts  of  turbulence  even  towards  a  third  per- 
son, so  connected  in  time,  place  and  circumstance  with  the  homicide, 
as  to  likely  characterize  the  deceased's  conduct  towards  the  defend- 
ant ought,  on  the  principles  stated  by  this  writer  in  said  section  63, 
to  be  received  in  evidence,  for  the  question  then  is  what  deceased 
probably  did,  not  what  defendant  probably  thought  deceased  was  go- 
ing to  do.  *  *  * 
Judgment  reversed.*'* 


HOLLINGHAM  v.  HEAD. 
(Court  of  Common  Pleas,  1858.    4  C.  B.  [N.  S.]  388.) 

This  was  an  action  for  the  price  of  a  quantity  of  artificial  manure 
sold  by  the  plaintiff  to  the  defendant. 

At  the  trial  before  Williams,  J.,  at  the  last  Assizes  for  Sussex,  it 
appeared  that  the  plaintifi',  who  represented  himself  to  be  the  agent  of 
a  company  styled  the  Sussex  Manure  Company,  was  in  the  habit  of 

**  See  State  v.  Bailey,  190  Mo.  257,  88  S.  W.  7.33  (1905),  where  in  order  to 
rebut  self-defense  it  was  held  proper  for  the  pro.secutlon  to  prove  that  defend- 
ant assaulled  another  nonunion  man  during  the  earlier  part  of  the  same 
evening. 


Sec.  2)  '  CONDUCT  8G1 

travelling  about  to  the  different  market  towns  to  sell  an  article  called 
Rival  Guano ;  that  he  met  with  the  defendant,  who  was  the  occupier 
of  a  farm  in  the  county  of  Sussex,  adjacent  to  a  farm  which  had  form- 
erly been  in  the  occupation  of  the  plaintiff,  and  prevailed  upon  him  to 
purchase  a  quantity  of  this  guano;  and  that  it  turned  out  to  be  alto- 
gether worthless. 

The  defence  set  up  was,  that  the  article  had  been  purchased  by  the 
plaintiff'  subject  to  a  condition  that  it  was  not  to  be  paid  for  unless  it 
proved  equal  to  Peruvian  guano :  and  it  was  proposed,  on  cross-exam- 
ination, to  ask  the  plaintiff  whether  he  had  not  made  contracts  with 
other  persons  for  the  sale  of  his  Rival  Guano  upon  the  terms  that  the 
purchasers  should  not  pay  for  it  unless  it  turned  out  to  be  equal  to 
Peruvian  guano. 

The  learned  judge  permitted  the  question  to  be  put,  for  the  purpose 
of  testing  the  plaintiff's  credit. 

The  defendant's  counsel  then  proposed  to  call  witnesses  to  prove  that 
the  plaintiff  had  made  contracts  with  other  persons  for  the  sale  of  his 
guano  upon  the  terms  suggested. 

The  learned  judge  ruled  that  this  evidence  was  not  admissible,  as 
not  being  relevant  to  the  issue,  and  res  inter  alios  acta. 

A  verdict  having  been  found  for  the  plaintiff, 

Montagu  Chambers  now  moved  for  a  new  trial,  on  the  ground  of 
the  improper  rejection  of  evidence,  and  also  that  the  verdict  was 
against  evidence. 

WiLLES,  J.*^  I  am  of  opinion  that  there  ought  to  be  no  rule  in  this 
case.  The  question  is,  whether,  in  an  action  for  goods  sold  and  de- 
livered, it  is  competent  to  the  defendant  to  set  up  by  way  of  defence 
that  the  plaintiff  has  entered  into  contracts  with  third  persons  in  a  par- 
ticular form,  with  the  view  of  thereby  inducing  the  jury  to  come  to  the 
conclusion  that  the  contract  sued  upon  was  not  as  represented  by  the 
plaintiff.  I  am  clearly  of  opinion  that  it  was  not  competent  to  the  de- 
fendant to  do  so.  The  case  put  forward  on  the  part  of  the  plaintiff', 
was,  that  the  defendant  bought  of  him  a  quantity  of  a  certain  article 
called  "Rival  Guano,"  at  a  given  price  per  ton.  The  defendant,  on 
the  other  hand,  insists  that  it  was  one  of  the  terms  of  the  contract  that 
he  was  not  to  pay  for  the  article  unless  it  turned  out  to  be  equal  to 
Peruvian  guano.  The  plaintiff,  having  given  evidence  in  support  of 
his  case,  was  asked  on  cross-examination  by  the  defendant's  counsel 
whether  he  had  not  entered  into  contracts  for  the  sale  of  his  ijuano  to 
other  persons  upon  the  terms  suggested,  viz.,  to  be  paid  for  only  on 
condition  that  it  proved  equal  to  Peruvian  guano.  That  question  was 
disallowed  as  not  being  competent  evidence  for  tlie  purpose  of  establish- 
ing that  the  contract  was  made  subject  to  that  condition.  And  I  un- 
derstand that  my  Brother  Williams  also  rejected  similar  evidence  in 
chief,  which  was  offered  on  the  part  of  the  defendant.    I  am  of  opin- 

*8  Opinions  of  Byles  and  Williams,  J  J.,  omitted. 


862  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

ion  that  the  evidence  was  properly  disallowed,  as  not  being  relevant  to 
the  issue.  It  is  not  easy  in  all  cases  to  draw  the  line,  and  to  define  witli 
accuracy  where  probability  ceases  and  speculation  begins :  but  we  are 
bound  to  lay  down  the  rule  to  tlie  best  of  our  ability.  No  doubt,  the 
rule  as  to  confining  the  evidence  to  that  which  is  relevant  and  pertinent 
to  the  issue,  is  one  of  great  importance,  not  only  as  regards  the  particu- 
lar case,  but  also  with  reference  to  saving  the  time  of  the  court,  and 
preventing  the  minds  of  the  jury  from  being  drawn  away  from  the  real 
point  they  have  to  decide.  This  rule  is  nowhere  more  clearly  laid 
down  than  in  the  very  able  treatise  by  Mr.  Best  upon  the  Principles 
of  Evidence,  2d  edit.  319.  "Of  all  rules  of  evidence,"  he  says,  "the 
most  universal  and  most  obvious  is  tliis, — that  the  evidence  adduced 
should  be  alike  directed  and  confined  to  the  matters  which  are  in  dis- 
pute, or  form  the  subject  of  investigation.  Its  theoretical  propriety 
can  never  be  matter  of  doubt,  whatever  difficulties  may  arise  in  its  ap- 
plication. The  tribunal  is  created  to  determine  matters  in  dispute  be- 
tween contending  parties,  or  which  otherwise  require  proof ;  and  any- 
thing which  is  neither  directly  nor  indirectly  relevant  to  those  matters 
ought  at  once  to  be  put  aside,  as  beyond  the  jurisdiction  of  the  tribunal, 
as  tending  to  distract  its  attention  and  to  waste  its  time."  And  the 
same  learned  author,  in  another  part  of  his  book,  says, — p.  14, — 
"There  is  a  strong  and  marked  difference  as  to  the  effect  of  evidence  in 
civil  and  criminal  proceedings.  In  the  former,  a  mere  preponderance 
of  probability,  due  regard  being  had  to  the  burden  of  proof,  is  suffi- 
cient basis  of  decision ;  but,  in  the  latter,  especially  when  the  oft'ence 
charged  amounts  to  treason  or  felony,  a  much  higher  degree  of  assur- 
ance is  required."  Now,  it  appears  to  me  that  the  evidence  proposed  to 
be  given  in  this  case,  if  admitted,  would  not  have  shown  that  it  was 
more  probable  that  the  contract  was  subject  to  the  condition  insisted 
upon  by  the  defendant. 

The  question  may  be  put  thus, — Does  the  fact  of  a  person  having 
once  or  many  times  in  his  life  done  a  particular  act  in  a  particular  way 
make  it  more  probable  that  he  has  done  the  same  thing  in  the  same 
way  upon  anotlier  and  different  occasion?  To  admit  such  speculative 
evidence  would  I  think  be  fraught  with  great  danger.  Where,  indeed, 
the  question  is  one  of  guilty  knowledge, — as  in  case  of  a  charge  of 
uttering  base  coin  or  forged  notes, — such  evidence  is  received  as  tend- 
ing to  establish  a  necessary  ingredient  in  the  crime.  But  I  am  not 
aware. of  any  other  instance.  If  such  evidence  were  held  admissible,  it 
would  be  difficult  to  say  that  the  defendant  might  not  in  any  case  where 
the  question  was  whether  or  not  there  had  been  a  sale  of  goods  on 
credit,  call  witnesses  to  prove  that  the  plaintiff  had  dealt  with  other 
persons  upon  a  certain  credit ;  or,  in  an  action  for  an  assault,  that  the 
plaintiff  might  not  give  evidence  of  former  assaults  committed  by  the 
defendant  upon  other  persons,  or  upon  other  persons  of  a  particular 
class,  for  the  purpose  of  showing  that  he  was  a  quarrelsome  individual, 
and  therefore  that  it  was  highly  probable  that  the  particular  charge  of 


Sec,  2)  CONDUCT  803 

assault  was  well  founded.  The  extent  to  which  this  sort  of  thing  might 
be  carried  is  inconceivable.  The  only  ground  upon  which  it  could  at 
all  be  suggested  that  such  an  inquiry  could  be  permitted  on  cross- 
examination,  would  be,  that  it  was  a  means  of  testing  the  credit  *"  of 
the  witness  or  the  accuracy  of  his  memory.  But  I  doubt  even  that : 
and  tliat  does  not  appear  to  have  been  tlie  way  in  which  it  was  put. 
As  to  the  cases  referred  to, — Egerton's  Case,  R.  &  R.  C.  C.  375,  is 
altogether  distinguishable.  There,  the  prisoner  was  charged  with  hav- 
ing extorted  money  from  the  prosecutor  by  means  of  a  threat  to  charge 
him  with  a  certain  offence :  and  the  prosecutor  was  allowed  to  give 
evidence  of  another  ineffectual  attempt  by  t-he  prisoner  to  obtain  money 
from  him  by  similar  threats, — in  order  to  show  the  intention  of  the 
prisoner  in  making  the  demand.  The  evidence  there  was  admissible 
because  it  was  all  part  of  one  persecution  of  the  prosecutor;  it  was 
relevant  to  the  matter  in  issue,  as  showing  the  nature  and  character 
of  the  transaction  in  question.  In  Llewellyn  v.  Winkworth,  13  M.  & 
W.  598,  which  was  an  action  against  the  defendant  as  acceptor  of  a  bill 
of  exchange  accepted  in  his  name  by  another  person,  evidence  having 
been  given  of  a  general  authority  in  that  person  to  accept  bills  in  the 
defendant's  name,  an  admission  by  the  defendant  of  liability  upon  an- 
other bill  so  accepted  was  held  to  be  good  confirmatory  evidence. 
There,  too,  the  evidence  was  relevant  to  the  issue.  For  these  reasons, 
I  am  of  opinion  that  there  is  no  pretence  for  granting  a  rule  on  the 
ground  of  misdirection  or  tlie  improper  rejection  of  evidence.  As  to 
the  other  branch  of  the  motion, — for  a  new  trial  on  the  ground  that 
the  verdict  was  against  the  evidence, — if  the  learned  judge  who  tried 
the  cause  had  expressed  himself  dissatisfied  with  the  verdict,  I  should 
probably  have  thought  a  rule  might  be  granted:  but,  as  he  has  not 
so  expressed  himself,  tliere  will  be  no  rule. 
Rule  refused. 


MILLER  v.  HACKLEY. 

(Supreme  Court  of  New  York,  1810.    5  Johns.  375,  4  Am.  Dec.  372.) 

Van  Ness,  ].*''  By  an  agreement  of  counsel,  the  motion  on  the 
part  of  the  defendant,  for  a  new  trial  and  in  arrest  of  judgment,  came 
on  together.  This  suit  is  to  charge  the  defendant,  as  indorser  of  a  bill, 
drawn  in  New  York,  on  Baltimore  for  250  dollars,  and  of  two  bills 
drawn  in  New  York,  on  Charleston,  the  one  for  310  dollars,  and  the 
other  for  315  dollars. 

With  respect  to  the  first  bill,  I  do  not  perceive  any  objection  to  the 
right  of  recovery.  The  bill,  when  presented  for  acceptance,  was  re- 
fused, and  due  notice  given  to  the  defendant.     The  evidence  to  this 

46  That  it  is  not  error  to  exclude  such  a  questiou  on  cross-examination,  see 
Spenceley  v.  De  Willott,  7  East,  108  (1805). 
*"!  Statement  and  part  of  opinion  omitted. 


364  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

point  consisted  of  the  deposition  of  a  notary,  who  stated  that  he  pre- 
sented the  bill  for  acceptance,  and  protested  it  for  non-acceptance. 
That  it  was  his  usual  practice,  as  notary,  on  the  evening  of  the  day  of 
the  protest,  and  in  all  cases  of  protest,  to  give  notice,  in  writing,  to 
the  indorsers  residing  at  a  distance,  by  putting  such  notice  in  the  post- 
office,  directed  to  tlie  party,  at  his  place  of  residence ;  and  he  had  no 
doubt  notice  in  this  case  was  duly  given,  though,  at  that  distance  of 
time,  he  could  not  recollect  positively;  and  that  it  was  possible  he 
might  have  given  the  notice  to  the  holder  to  be  forwarded. 

This  evidence  was  certainly  sufficient,  in  the  first  instance,  to  sup- 
port the  averment  of  due  notice,  and  there  being  nothing  to  affect  it, 
it  will  support  the  verdict.*^     *     *     * 


MEIGHEN  v.  BANIC 
(Supreme  Court  of  Pennsylvania,  1855.    25  Pa.  288.) 

Knox,  ].*^  *  *  *  The  action  was  against  the  bank,  upon  a  cer- 
tificate of  deposit,  purporting  to  have  been  given  by  the  cashier  to  the 
plaintiff  on  the  19th  of  March,  1853 ;  and  the  defence  was  that  no 
deposit  had  been  made  on  that  day,  but  that  it  was  really  made  on 
the  19th  of  March,  1852,  and  had  been  paid  out  on  the  plaintiff's 
check,  and  that  the  date  of  the  year  was  a  mistake. 

After  the  cashier  had  sworn  positively  that  the  plaintiff  had  made 
no  deposit  in  the  bank  on  the  19th  of  March,  1853 ;  and  that  he  had 
no  doubt  the  certificate,  upon  which  the  suit  was  brought,  was  the 
one  he  gave  to  the  plaintiff  on  the  19th  of  March,  1852,  and,  had 
given,  as  a  reason,  that  he  stated  so  from  the  books ;  and  from  his 
recollection,  he  was  permitted,  under  objection,  to  add  as  follows, 
viz.,  "it  is  tlie  invariable  custom  of  the  bank  to  balance  and  settle  the 
books  every  evening.  There  was  no  transaction  of  the  kind  in  March, 
1853.  If  he  (Meighen)  had  made  a  deposit  on  that  day,  I  would  have 
entered  the  deposit  in  the  daily  receipts ;  and  this  is  one  reason  for  my 
belief  that  he  made  no  such  deposit.  If  he  had  made  such  a  deposit, 
it  would  have  been  such  a  coincidence  as  would  not  have  escaped  my 
mind ;  besides,  he  owed  no  note  of  this  kind  at  the  time,  and  that,  if 
there  had  been  any  discrepancy  in  the  books,  I  would  have  heard  of  it. 
It  is  our  custom  to  endorse  such  drafts  before  sending  them  away." 
Upon  the  reception  of  his  evidence,  the  second,  third,  fourth,  and 
fifth  errors  are  assigned.  It  is  unnecessary  to  notice  the  assignments 
separately  and  in  detail,  as  they  are  all  involved  in  the  question  wheth- 
er the  above  stated  evidence  was  properly  received  or  not.  The  al- 
legation of  the  plaintiff  in  error  is,  that  the  witness  was  illegally  per- 

*«  See  cases  under   Regular  Entries,   where  tliLs  sort  of  eviflence  is  con- 
Htantly  used. 

<«  Statement  and  part  of  opinion  omitted. 


Sec.  2)  CONDUCT  8G5 

mitted  to  prove  the  custom  of  the  bank  in  settling  its  books,  and  en- 
dorsing drafts,  and  to  speak  of  the  contents  of  the  book,  and  to  ex- 
press his  beUef  with  his  reasons  for  it,  that  no  deposit  had  been  made 
on  the  19th  of  March,  1853.  It  is  important  to  remember  that  the 
witness  had  ah'eady  stated,  without  objection,  that  no  deposit  was 
made  by  Meighen  on  the  19th  of  March,  1853,  and  that  the  evidence 
which  is  alleged  to  have  been  improperly  received,  was  given  merely 
as  corroborative,  or,  rather,  as  explanatory  of  his  previous  assertion. 
Where  a  witness  has  stated  a  fact,  or  given  an  opinion,  he  may  be 
asked,  either  in  chief  or  on  cross-examination,  how  he  knows  the 
fact,  or  upon  what  grounds  his  opinion  is  founded;  and  there  is  no 
error  in  permitting  him  to  answer  as  to  his  knowledge  of  facts,  or  to 
give  his  reasons  for  opinions  expressed.  If  it  should  appear  that 
either  the  one  or  the  other  were  based  upon  grounds  which  were  legal- 
ly inadmissible,  it  would  clearly  be  the  duty  of  the  Court  to  instruct 
the  jury  to  disregard  the  testimony.  But  surely  there  was  no  error 
in  permitting  the  witness  to  give  "the  reason  for  the  faith  that  was 
in  him;"  and  it  seems  to  us  that  the  reasons  which  he  gave  entirely 
justified  his  statement,''"  that  no  deposit  had  been  made  in  March, 
1853,  but  that  the  certificate  was  really  given  in  March,  1852. 

Had  the  evidence  of  the  usage  and  custom  of  the  bank,  in  settling 
books  and  endorsing  drafts,  been  ofifered  of  itself  to  disprove  the  lia- 
bility of  the  corporation,  upon  the  certificate  in  question,  it  might 
have  been  liable  to  the  objection  that  it  was  the  act  of  the  party  in 
whose  behalf  it  was  offered,  and  therefore  not  competent;  but,  as 
we  have  already  observed,  it  was  given  merely  as  one  of  the  reasons 
wliich  induced  the  conclusion  of  the  cashier  that  the  certificate  of 

50  Gray,  J.,  in  Gardam  v.  Batterson,  198  N.  T.  175,  91  N.  E.  371,  139  Am. 
St.  Rep.  806.  19  Ann.  Gas.  649  (1910):  "»  *  *  The  defendant  testified  to 
the  paper  writings  being  copies  of  original  letters  written  by  Beadnell ;  that 
the  originals  were  addressed  to  the  plaintiff,  sealed,  stamped,  and  put  in  a 
box  or  tray,  'on  my  desk  to  be  mailed  in  the  post  office,  the  same  as  I  always 
do  with  every  letter  going  from  my  office.  *  ♦  *  They  were  put  in  there 
for  the  purpose  of  being  mailed  by  somebody  in  my  employ.  I  am  head  of  a 
big  insurance  company  down  there.  The  letters  are  taken  from  that  tray 
periodically  through  the  day  *  *  *  by  the  clerk  whose  duty  it  was  to 
gather  up  the  mail  and  post  it.  That  was  the  way  that  all  the  mail  that 
emanated  from  my  office  always  went  through  the  post.  That  was  the  regu- 
lar course  of  business  in  my  office  every  day.'  *  *  *  it  was  essential,  in 
this  case,  to  the  admissibility  of  the  copies,  that  the  testimony  of  the  defend- 
ant as  to  the  sending  of  the  letters  should  have  been  sup'plemented  by  the 
further  evidence  of  the  clerk,  or  other  employg,  whose  duty  it  w-as  to  post 
letters,  that  in  the  regular  course  of  business  he  had  invariably  collected  the 
letters  upon  the  defendant's  desk  and  had  posted  them.  However  strong  the 
convictions  and  the  statements  of  the  defendant  as  to  the  usual  mailing  of  the 
letters  placed  on  his  desk,  there  was  the  gap  in  the  proof,  created  by  the  fail- 
ure to  show  that  regular  practice,  or  custom,  of  carrying  them  to  the  post, 
by  some  one  charged  with  that  duty,  from  which  a  presumption  would  natu- 
rally arise  of  these  letters  having  been  posted.  I  think  that  the  trial  court 
committed  no  error  in  excluding  the  copies  of  letters  offered  by  the  defend- 
ant." 

HiNT.Ev. — 55 


S66  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

deposit  was  erroneously  dated,  and  for  tfiis  purpose  it  was  plainly 
admissible.  In  Schoneman  v.  Fegley,  14  Pa.  376,  the  witness  said, 
"he  did  not  know  whether  he  gave  a  receipt  for  a  note  or  not;"  and 
it  was  held  that  the  question,  whether  he  usually  gave  receipts  for 
notes,  was  properly  ruled  out.  This  is  by  no  means  an  authority 
against  the  decision  of  the  Court  in  the  case  now  in  hand.  If  the 
witness  in  Schoneman  v.  Fegley  had  stated  that  he  did  give  a  receipt 
for  the  note  in  question,  and  had  been  refused  permission  to  give,  as 
one  of  the  reasons  for  believing  that  he  had  given  a  receipt,  his  in- 
variable practice  to  give  such  receipts,  the  case  would  have  been  in 
point  here ;  but  it  is  not  now. 

We  see  no  objection  to  the  reception  of  the  deposition  of  IMr.  Pen- 
nock,  the  teller,  as  to  the  entries  in  the  books  of  the  bank  made  in 
his  handwriting.  The  books  would  not  have  been  evidence,  unsup- 
ported by  the  oath  of  the  party  making  the  entries ;  but,  in  connexion 
with  the  oath  of  the  teller,  they  were  evidence  in  accordance  with 
the  decision  of  this  Court,  in  the  case  of  Bank  v.  Boraef,  1  Rawle, 
152. 

Judgment  affirmed. 


STATE  V.  MANCHESTER  &  L.  R.  R. 

(Supreme  Judicial  Court  of  New  Hampshire,  1873.     52  N.  H.  528.) 

Indictment  for  negligently  running  over  and  kilUng  Benjamin 
Woodbury  at  a  public  crossing.  , 

The  accident  occurred  on  the  passage  of  the  up  train,  on  the  morn- 
ing of  December  17,  1870;  and  it  appeared  that  the  same  engineer  and 
fireman,  who  had  charge  of  the  locomotive  on  that  occasion,  had 
driven  the  same  morning  up  train  for  the  year  preceding.  Subject  to 
the  defendants'  exception,  the  State  was  permitted  to  prove  that,  dur- 
ing the  preceding  year,  the  same  train  sometimes  passed  the  crossing 
where  the  accident  happened  without  sounding  the  whistle  or  ringing 
the  bell,  and  were  permitted  to  argue  upon  said  testimony,  in  connec- 
tion with  other  evidence,  for  the  purpose  of  showing  that  the  engi- 
neer and  fireman  of  the  defendants  did  not,  on  the  occasion  of  the  ac- 
cident, seasonably  sound  the  whistle  and  ring  the  bell.     *     *     * 

Sargent,  C.  J.'^^  *  *  *  The  first  question  raised  by  the  case  is 
as  to  the  admissibility  of  the  testimony  as  to  the  same  train,  run  by 
the  same  engineer  and  fireman,  having  sometimes  passed  the  same 
crossing  where  the  accident  happened,  during  the  preceding  year, 
without  sounding  the  whistle  or  ringing  the  bell,  as  tending  to  show 
that  the  same  men  would  be  more  likely  to  have  neglected  the  per- 
formance of  these  duties  upon  the  occasion  in  question.  The  regula- 
tions required  that  upon  each  occasion  when  this  crossing  was  passed 

«i  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  2)  CONDUCT  8G7 


the  bell  should  be  rung-  and  the  whistle  sounded.  There  was  direct 
evidence  on  one  side  that  neither  of  these  signals  was  given  upon  the 
occasion  of  the  accident,  while  there  was  just  as  direct  evidence  upon 
the  other  side  that  both  these  signals  were  properly  given.  Here  was 
a  direct  conflict  in  the  evidence.  Which  shall  the  jury  believe?  Had 
this  duty  been  invariably  performed  according  to  requirement,  or  had 
these  servants  of  the  road  grown  careless  and  negligent  in  regard  to 
it  ?  Would  their  conduct  on  former  occasions  have  any  bearing  upon 
the  probabilities  of  the  case?  Would  they  be  more  likely  to  neglect 
their  duty  on  this  occasion  if  they  had  frequently  neglected  it  before, 
and  with  impunity,  than  they  would  if  they  had  always  scrupulously 
observed  it? 

Negligence  is  said  to  consist  in  the  omitting  to  do  something  that 
a  reasonable  man  would  do,  or  the  doing  something  that  a  reasonable 
man  would  not  do,  in  either  case  causing  unintentionally,  mischief  to 
a  third  party.  1  Hilliard  on  Torts  (2d  Ed.)  131.  It  would  seem  to 
be  axiomatic,  that  a  man  is  more  likely  to  do  or  not  to  do  a  thing,  or 
to  do  it  or  not  to  do  it  in  a  particular  way,  as  he  is  in  the  habit  of  do- 
ing or  not  doing  it.  But  this  must  be  understood  of  acts  which  are 
done,  or  omitted  to  be  done,  without  any  particular  intent  or  purpose 
to  injure  any  one.  It  cannot  apply  to  acts  that  are  done  intentionally, 
wilfully,  or  maliciously,  because  such  acts  are  done  with  a  specific 
object  in  view,  and  they  are  performed,  not  by  force  of  habit,  but  with 
a  definite  purpose.  It  would  not  be  competent  evidence  that  a  man 
was  guilty  of  murder,  to  show  that  he  had  committed  several  other 
murders  before ;  and  so  of  any  other  crime,  or  any  wilful  trespass,  or 
any  act  done  and  intended  for  the  specified  object  in  question. 

If,  in  this  case,  it  had  been  charged  that  these  agents  of  the  corpora- 
tion had  knowingly,  intentionally,  wilfully,  or  maliciously  done  or 
omitted  to  do  any  act  for  the  purpose  of  injuring  the  deceased  or  any 
body  else,  then  the  only  questions  would  be,  was  the  act  done,  or 
omitted,  as  charged  ?  and  did  the  knowledge,  the  intention,  the  will,  or 
the  malice,  exist  when  the  act  was  done  or  omitted?  But  when  the 
question  is,  Did  these  servants  of  the  road,  without  any  intention 
whatever,  and  through  mere  negligence  or  carelessness,  omit  to  give 
these  signals  on  that  occasion?  we  think  the  inquiry  was  properly 
made  as  to  what  they  had  done  before  in  that  regard,  and  whether 
they  had  or  had  not  grown  habitually  negligent  of  the  requirements 
of  the  road  in  that  particular.  In  this  view  of  the  case,  we  think  the 
evidence  w'as  admissible,  not  as  evidence  of  character,  not  as  evidence 
of  fitness  or  unfitness,  but  simply  as  having  some  tendency  to  show 
that  on  this  particular  occasion  these  agents  were  more  probably  neg- 
ligent and  careless,  because  they  had  before  frequently  neglected  the 
same  duty  with  impunity,  and  had  thus  become  habitually  negligent 
in  that  regard.     This  exception  is  overruled.     *     *     * 


868  CIRCUMSTANTIAL   EVIDENCE  (Cll.  5 


BRODERICK  v.  HIGGINSON. 

(Supreme  Judicial  Court  of  Massachusetts,  1S97.    169  Mass.  482,  48  N.  E.  269, 

61  Am.  St.  Eep.  290.) 

Two  actions  of  tort,  to  recover,  under  Pub.  St.  c.  102,  §  93,^^ 
doubled  damages  for  injuries  occasioned  by  a  dog.  At  the  trial  in 
the  Superior  Court,  before  Hopkins,  J.,  the  defendant  was  charged  as 
keeper  of  the  dog,  and  the  plaintiffs  contended  that  the  injury  occur- 
red because  the  dog  rushed  into  the  highway,  frightened  their  horse, 
and  caused  both  the  plaintiffs,  who  were  husband  and  wife,  and  who 
were  riding  together,  to  be  thrown  from  their  carriage. 

The  plaintiffs'  offered  evidence  tending  to  show  that  the  dog  had 
made  other  attacks  upon  other  teams  passing,  in  a  like  manner,  and 
stated  that  the  offer  was  made  with  a  view  to  showing  that  the  dog 
had  made  the  attack  in  question.  This  evidence  was  excluded;  and 
the  plaintiffs  excepted. 

The  defendant  offered  evidence  tending  to  show  that  after  the  ac- 
cident the  husband  said  that  it  happened  through  tlie  fault  of  the 
horse,  and  that  the  dog  did  not  make  an  attack  upon  the  horse,  or  any 
demonstration  towards  him. 

Knowlton,  J.°^  a  question  common  to  both  of  these  cases  is 
whether  it  is  competent  to  prove  that  a  dog  has  a  habit  of  attacking 
passing  teams,  in  support  of  a  disputed  allegation  that  he  attacked  a 
passing  team  on  a  particular  occasion.  It  is  a  familiar  fact  that  ani- 
mals are  more  likely  to  act  in  a  certain  way  at  a  particular  time  if  the 
action  is  in  accordance  with  their  established  habit  or  usual  conduct 
than  if  it  is  not.  There  is  a  probability  that  an  animal  will  act  as  he 
is  accustomed  to  act  under  like  circumstances.  For  this  reason,  when 
disputes  have  arisen  in  regard  to  the  conduct  of  an  animal,  evidence 
of  his  habits  in  that  particular  has  often  been  received.  Todd  v. 
Rowley,  8  Allen,  57;  Maggi  v.  Cutts,  123  Mass.  537;  Lynch  v. 
Moore,  154  Mass.  335,  28  N.  E.  277.  These  cases  fully  cover  the 
question  now  presented.  They  are  authorities,  not  only  to  the  prop- 
osition that  evidence  of  habit  may  be  received  in  such  cases,  but  that 
habits  may  be  proved  by  evidence  of  the  frequent  observation  of  par- 
ticular instances.  Of  similar  import,  although  somewhat  different  in 
the  application  of  the  principle,  are  the  later  cases  of  Bcmis  v.  Tem- 
ple, 162  Mass.  342,  38  N.  E.  970,  26  L.  R.  A.  254,  and  Shea  v.  Fab- 
rics Co.,  162  Mass.  463,  38  N.  E.  1123.  We  are  of  opinion  that  the 
evidence  should  have  been  admitted.     *     *     * 

Exceptions  sustained. 

6  2  "Every  owner  or  Iteeper  of  a  dog  sliall  forfeit  to  any  person  injured  by 
it  double  the  amount  of  the  damages  sustained  by  him,  to  be  recovered  in  an 
action  of  tort." 

»»  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  2)  CONDUCT  869 

CARR  V.  WEST  END  ST.  RY.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1S95.    163  Mass.  360,  40  N.  E.  185.) 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff,  and  for  dam- 
ages caused  to  his  horses  and  wagon,  by  collision  with  a  street  car 
of  the  defendant.  At  the  trial  in  the  Superior  Court  before  Mason, 
C.  J.,  the  jury  returned  a  verdict  for  the  plaintiff;  and  the  defend- 
ant alleged  exceptions,  in  substance  as  follows. 

The  defendant  introduced  evidence  tending  to  show  that  the  plain- 
tiff' was  at  the  time  of  the  collision  under  the  influence  of  liquor, 
and  that  his  condition  contributed  not  only  to  the  accident,  but  to 
the  extent  of  the  injury  which  he  claimed  to  have  received  therefrom. 

One  Story,  who  was  conductor  of  the  car  and  who  had  been  in 
the  employ  of  the  defendant  for  fourteen  years,  testified  for  the  de- 
fendant that  he  saw  the  plaintiff'  approaching,  and  watched  him ;  that 
he  acted  stupid ;  that  as  he  raised  him  up  from  the  street,  and  when 
he  was  assisting  him  inside,  he  could  smell  his  breath ;  and  that  after 
the  plaintiff  sat  down  in  a  chair  the  witness  made  the  remark  that 
the  man  was  intoxicated. 

On  cross-examination,  the  same  witness  testified  that  he  had  his 
eye  on  the  plaintiff  because  he  had  seen  him  intoxicated  several  times 
before  on  the  street  while  on  his  wagon,  and  that  he  had  seen  him 
intoxicated  while  on  his  wagon,  since  the  accident. 

In  rebuttal,  the  plaintiff  called  one  Hursch,  who  testified  that  he  had 
known  the  plaintiff  as  a  carter  of  brick  for  twenty  years,  and  that 
he  had  employed  him  for  nearly  eighteen  years. 

"Q.  Did  you  ever  see  Mr.  Carr  intoxicated?  A.  Never.  He  was 
a  very  sober,  industrious  man,  very  reliable.  Never  knew  him  to  be 
under  the  influence  of  liquor." 

To  this  question  and  answer  the  defendant  objected,  but  the  judge 
allowed  them ;    and  the  defendant  excepted. 

"O.  Now,  will  you  state  more  particularly  as  to  his  habits  as  to 
drink?  A.  I  never  knew  that  he  drank  a  drop  in  my  life.  Never 
knew  him  to.     He  may  have  drunk,  but  I  never  knew  him  to." 

This  question  and  answer  were  also  objected  to  by  the  defendant, 
but  the  judge  allowed  them;   and  the  defendant  excepted. 

Holmes,  J.  The  testimony  as  to  the  plaintiff's  habits  was  not  ad- 
missible to  contradict  the  evidence  that  he  was  intoxicated  at  the  time 
of  the  accident.  Neither  was  it  admissible  to  meet  the  testimony 
brought  out  by  the  plaintiff,  on  cross-examination,  that  he  had  been 
seen  intoxicated  several  times  before  the  accident.  The  latter  testi- 
mony was  immaterial,  and  the  plaintiff  was  not  entitled  to  contradict 
it.  McCarty  v.  Leary,  118  Alass.  509;  Shurtleff  v.  Parker,  130  Mass. 
293,  297,  39  Am.  Rep.  454;    Lamagdeiaine  v.  Tremblay,  162  Mass. 


870  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

339,  39  N.  E.  38;   Alexander  v.  Kaiser,  149  Mass.  321,  21  N.  E.  376; 
Harrington  v.  Lincoln,  2  Gray,  133. 
Exceptions  sustained."* 


JOSEPH  TAYLOR  COAL  CO.  v.  DAWES. 

(Supreme  Court  of  Illinois,  190C.     220  111.  145,  77  N.  E.  131.) 

Action  on  the  case  for  personal  injuries  alleged  to  have  been  caused 
by  die  defendant's  engineer  in  lowering  the  cage,  in  which  the  plain- 
tiff was  descending  into  a  coal  mine,  at  a  rate  of  speed  prohibited 
by  the  statute.    The  testimony  as  to  the  rate  of  speed  was  conflicting. 

Hand,  J."  *  *  *  The  plaintiff  called  a  number  of  witnesses 
who  were  employed  in  the  mine,  and,  over  the  objection  of  the  de- 
fendant, was  permitted  to  prove  by  them  that  prior  to  the  plaintiff's 
injury  the  engineer  repeatedly  lowered  tlie  cage,  when  men  were  upon 
it,  into  the  mine  at  a  rate  of  speed  greatly  in  excess  of  600  feet  per 
minute.  This  testimony,  it  is  urged,  was  inadmissible,  as  it  is  said  it 
was  not  permissible  for  the  plaintiff"  to  establish  that  the  cage  was 
lowered  at  a  prohibited  rate  of  speed  at  the  time  he  was  injured,  by 
proving  it  was  lowered  at  other  times  at  a  rate  of  speed  prohibited 
by  the  statute.  If  such  was  the  object  of  the  testimony,  the  objec- 
tion to  its  admission  should  have  been  sustained,  as  the  general  rule 
is  that  the  plaintiff  cannot  establish  the  misconduct  of  the  defendant 
upon  which  he  bases  a  right  to  recover  by  proving  the  defendant  guilty 
of  similar  acts  of  misconduct  at  another  time. 

This  general  rule,  however,  has  its  exceptions,  and  we  think  the 
evidence  here  in  question  falls  within  a  well-recognized  exception  to 
the  general  rule  and  was  admissible.  The  defendant  was  powerless 
to  delegate  to  its  engineer  tlie  right  to  lower  into  its  mine  said  cage, 
and  thereby  relieve  itself  from  liability  in  case  the  cage  was  lowered 
at  a  rate  of  speed  prohibited  by  the  statute,  and  injury  followed,  as 
the  duty  to  lower  the  cage  at  a  rate  of  speed  not  in  excess  of  600  feet 
per  minute  was  a  duty  resting  upon  the  defendant,  and  which  could 
not  be  delegated  by  it  to  its  engineer  so  as  to  reheve  itself  from  lia- 
bility. Chicago  &  Alton  Railroad  Co.  v.  Eaton,  194  111.  441,  62  N. 
E.  784,  88  Am.  St.  Rep.  161.  Tlie  engineer,  in  the  lowering  of  the 
cage,  stood  in  the  place  of  and  as  the  representative  of  the  defend- 
ant, and  his  knowledge  with  reference  to  tlie  rate  of  speed  at  which 
the  cage  was  being  lowered  into  the  mine  at  the  time  the  plaintiff 
was  injured  was  the  knowledge  of  the  defendant.  In  order  that  the 
defendant  might  be  held  liable,  under  the  first  count,  for  a  willful 

6*  Hut  .se<>  rennsylvaniii  K.  Co.  v.  Hooks,  57  Pa.  339,  98  Am.  Dec.  229 
(1808),  that  the  inteiJiperate  hal)its  of  an  employer  are  admissible  to  prove  in- 
toxication at  the  time  of  un  acddi'iit. 

IB  The  statement  lias  been  condensed  and  part  of  opinion  omitted. 


Sec.  2)  CONDUCT  871 

violation  of  the  statute  in  lowering  the  cage  into  the  mine  at  a  pro- 
hibited rate  of  speed,  it  devolved  upon  the  plaintiff  to  establish  that 
the  defendant  by  its  engineer,  consciously — that  is,  knowingly — low- 
ered the  cage  upon  which  the  plaintiff  was  descending  into  the  mine 
at  the  time  he  was  injured  at  a  rate  of  speed  in  excess  of  the  rate 
of  600  feet  per  minute.  Carterville  Coal  Co.  v.  Abbott,  181  111.  495, 
55  N.  E.  131;  Donk  Bros.  Coal  &  Coke  Co.  v.  Peton,  192  111.  41,  61 
N.  E.  330. 

While  the  fact  that  the  cage  was  descending  into  the  mine  at  a  rate 
of  speed  prohibited  by  the  statute  at  the  time  plaintiff  was  injured 
might  afford  a  presumption  that  the  engineer  who  controlled  the  en- 
gine that  regulated  the  descent  of  the  cage  had  knowledge  of  tlie  rate 
of  speed  at  which  the  cage  was  descending  into  the  mine,  if  that 
were  the  only  time  in  the  history  of  the  mine  when  the  cage  had 
been  allowed  by  the  engineer  to  descend  into  the  mine  at  a  rate  of 
speed  prohibited  by  the  statute,  the  presumption  that  its  unlawful 
rate  of  descent  was  known  to  the  engineer,  and  that  such  excessive 
rate  of  speed  was  not  accidental,  would  be  greatly  weakened.  If, 
on  the  other  hand,  the  engineer  had  repeatedly,  prior  to  the  injury 
of  the  plaintiff,  violated  the  statute  by  lowering  the  cage  into  the 
mine  at  a  rate  of  speed  prohibited  by  the  statute,  the  presumption 
that  he  knowingly,  and  therefore  willfully,  violated  the  statute  by 
lowering  the  cage  into  the  mine  at  a  prohibited  rate  of  speed  at  the 
time  plaintiff  was  injured,  would  be  greatly  strengthened.  The  gist 
of  plaintiff's  action  under  the  first  count  of  the  declaration  was  a  will- 
ful violation  of  the  statute,  which  involved  proof  of  a  conscious  vio- 
lation of  the  statute,  and  any  fact  which  would  estabHsh  knowledge 
on  the  part  of  the  engineer  that  the  cage  was  being  lowered  into  the 
mine  at  an  unlawful  rate  of  speed  was  admissible  in  evidence,  even 
though  it  involved  proof  of  the  conduct  of  the  engineer  in  handling 
the  cage  at  times  other  than  at  the  time  plaintiff  was  injured.     **■-*■ 

Judgment  affirmed. 


COMMONWEALTH  v.  RIVET. 
(Supreme  Judicial  Court  of  Massachusetts,  1910.    205  Mass.  464,  91  N.  E.  S77.) 

Indictment,  found  and  returned  on  June  5,  1908,  charging  the  de- 
fendant with  murdering  one  Joseph  Gailloux  at  Lowell  on  Februarv' 
29,  1908. 

In  the  Superior  Court  the  defendant  was  tried  before  Harris  and 
Hitchcock,  JJ.  The  jury  returned  a  verdict  of  guilty  of  murder  in  the 
first  degree,  and  the  defendant  alleged  exceptions,  raising  the  ques- 
tions which  are  stated  in  the  opinion  as  well  as  others  which  were 
waived  or  were  not  argued  by  the  defendant. 

On  Sunday,  March  1,  1908,  Gailloux  was  found  dead  in  a  small 


872  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

office  connected  with  a  tinshop  of  one  Daigle  in  Lowell.  At  the  trial 
it  appeared,  among  other  things,  that  the  deceased  had  taken  out  a  life 
insurance  policy  payable  to  his  heirs  or  legal  representatives;  the 
policy  being  taken  out  through  the  instrumentality  of  defendant,  who 
paid  the  expense  of  taking  the  policy  and  also  the  first  and  second 
premiums  on  it.  About  a  month  after  it  was  issued  it  had  been  assign- 
ed to  defendant.  At  the  time  of  the  death  both  the  policy  and  the  as- 
signment were  in  defendant's  possession.  The  evidence  in  regard  to 
the  murder  was  entirely  circumstantial.  Other  facts  appear  in  the 
opinion. 

LoRiNG,  J.^^  *  *  *  Two  exceptions  to  the  exclusion  of  evidence 
have  been  argued  together.  One  of  these  was  to  the  exclusion  of  evi- 
dence that  on  one  occasion,  late  in  the  fall  previous  to  the  murder, 
the  deceased  had  been  found  in  Daigle's  shop,  late  at  night,  dead 
drunk.  The  other  exception  was  to  the  exclusion  of  evidence  that  the 
deceased  was  frequently  in  fights  when  he  was  intoxicated,  that  he  was 
frequently  seen  with  his  face  all  battered  up  in  some  contest  he  had 
had,  and  that  he  had  been  seen  within  a  year  before  his  deatli  "with 
a  swollen  face,  black  eyes  [and]  battered  face  generally." 

On  inquiry  the  defendant's  counsel  disclaimed  having  evidence  that 
the  defendant  knew  of  the  character  of  the  deceased.  He  also  dis- 
claimed offering  this  evidence  to  show  that  this  killing  was  done  in 
self-defense.  The  case  therefore  does  not  come  within  Com.  v.  Tir- 
cinski,  189  Mass.  257,  75  N.  E.  261,  2  L.  R.  A.  (N.  S.)  102,  4  Ann. 
Cas.  ZZ7. 

The  defendant's  argument  in  support  of  this  exception  is  that  this 
was  evidence  from  which  the  jury  could  infer  that  the  deceased  came 
to  his  death  by  having  got  into  a  fight  when  drunk.  The  fact  that  a 
person's  habits  or  character  are  such  that  he  would  be  apt  to  do  an  act 
is  not  competent  evidence  that  he  did  the  act.  Nothing  is  better  settled 
than  tbat.  Com.  v.  Worcester,  3  Pick.  462;  Ellis  v.  Short,  21  Pick. 
142 ;  Tenney  v.  Tuttle,  1  Allen,  185 ;  Heland  v.  Lowell,  3  Allen,  407, 
81  Am.  Dec.  670;  McCarty  v.  Leary,  118  Mass.  509;  Menard  v.  Bos- 
ton &  Maine  R.  R.,  150  Mass.  386,  23  N.  E.  214;  Geary  v.  Stevenson, 
169  Mass.  23,  47  N:  E.  508;  Edwards  v.  Worcester,  172  Mass.  104, 
51  N.  E.  447;  Rex  v.  Fisher,  [1910]  1  K.  B.  149. 

There  is  no  difference  betv/een  the  usual  case  where  evidence  of  this 
character  is  offered  by  the  prosecution  to  prove  that  the  defendant 
did  the  act  he  is  charged  with  doing  and  the  case  at  bar  where  evidence 
was  offered  by  the  defendant  to  prove  that  the  deceased  did  the  act  in 
question  and  thereby  to  show  that  he  did  not  do  it.  Doing  an  act  can- 
not be  proved  in  cither  case  by  evidence  that  from  the  habits  of  the 
person  in  question  he  would  be  apt  to  do  it.     *     *     * 

Exceptions  overruled. 

BO  Part  of  oijiuiou  omitted. 


Sec.  2)  CONDUCT  873 

NOYES  V.  BOSTON  &  M.  R.  R. 
(Supreme  Judicial  Court  of  Massachusetts,  1912.    213  Mass.  9,  99  N.  E.  457.) 

Tort  under  St.  1906,  c.  463,  part  2,  §  247,  for  damages  resulting 
from  the  burning  on  August  12,  1908,  of  a  barn  of  the  plaintiff  in 
West  Boylston  alleged  to  have  been  caused  by  fire  communicated  by 
a  locomotive  engine  of  the  defendant.  Writ  dated  November  20, 
1909. 

In  the  Superior  Court  the  case  was  tried  before  Irwin,  J.  The 
plaintiff  introduced  evidence,  Avhich  in  its  nature  was  circumstantial 
and  which  was  controverted  by  evidence  of  the  defendant,  tending  to 
show  that  the  fire  was  caused  by  sparks  from  a  locomotive  engine  of 
the  defendant. 

It  appeared  that  a  son  of  the  plaintifiF  was  at  home  on  the  day  of 
the  fire,  and  the  defendant  offered  to  show  that  the  son  was  there 
at  the  time  of  the  fire ;  that  when  he  was  a  young  boy  he  had  had  a 
strong  inclination  to  set  fires,  and  had  set  several ;  that  in  the  autumn 
of  1908  several  fires  occurred  within  a  radius  of  a  mile  from  the 
plaintiff's  barn  and  that  the  plaintiff's  son  was  very  near  the  place 
where  such  fires  took  place  at  the  time  when  they  were  discovered; 
that  he  was  arrested  by  a  constable,  and  that  he  admitted  to  the  con- 
stable that  he  set  several  of  these  fires ;  that  the  district  court  of  Clin- 
ton ordered  an  examination  of  the  plaintiff's  son  by  two  physicians,  who 
committed  him  to  a  hospital  on  the  ground  that  he  had  a  mania  for 
setting  fires.  The  defendant  did  not  contend  that  the  alleged  admis- 
sion to  the  constable  in  any  way  referred  to  the  fire  mentioned  in  the 
declaration. 

The  evidence  was  excluded  subject  to  an  exception  by  the  defendant. 

The  jury  found  for  the  plaintiff  in  the  sum  of  $2,436.23,  and  the 
defendant  alleged  exceptions. 

BralEy,  J.  The  plaintiff  seeks  under  St.  1906,  pt.  2,  §  247,  to 
recover  damages  for  the  destruction  of  a  barn  with  its  contents, 
alleged  to  have  been  caused  by  fire  directly  communicated  by  the  loco- 
motive engine  of  the  defendant.  But  if  the  loss  is  unquestioned  the 
parties  were  at  issue  as  to  the  origin  of  the  fire.  The  defendant  could 
show,  by  relevant  testimony,  that  it  originated  from  other  independent 
causes  even  if  the  circumstantial  evidence  introduced  by  the  plaintiff 
seems  to  have  been  clear  and  abundant,  that  the  ignition  of  the  roof, 
from  which  apparently  the  fire  spread  through  the  building,  must 
have  been  from  sparks  emitted  by  the  engine.  Perley  v.  Eastern  Rail- 
road Co.,  98  Mass.  414,  96  Am.  Dec.  645. 

The  defendant  contends  that,  if  its  offer  of  proof  had  been  admitted 
in  evidence,  the  jury  would  have  been  warranted  in  finding  the  fire 
had  been  set  by  a  son  of  the  plaintiff,  or  at  least  sufticient  doubt  would 
have  been  raised  as  to  its  liability  to  have  overcome  the  burden  of 


874  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

proof.  But  in  the  absence  of  any  direct  evidence  connecting  him  with 
the  occurrence,  the  defendant  endeavored  to  show,  from  incidents  in 
his  early  life,  that  he  had  acquired  a  disposition  which  had  ripened 
into  a  habit  to  set  incendiary  fires  whenever  the  opportunity  offered. 
A  habit  of  this  character  is  abnormal,  and  it  may  be  criminal.  The 
defendant  was  required  to  satisfy  the  presiding  judge  that  the  course 
of  conduct  on  which  it  sought  to  predicate  the  commission  of  an 
affirmative  wrongful  act  of  the  character  claimed  had  become  so  con- 
tinuous and  systematic  that  the  setting  of  the  fire  in  question  would 
follow  as  a  reasonable  and  probable  consequence.  Shailer  v.  Bum- 
stead,  99  Mass.  112;  Thayer  v.  Thayer,  101  Mass.  Ill,  113,  114,  100 
Am.  Dec.  110;  Com.  v.  Abbott,  130  ]\Iass.  472,  473;  Hathaway  v. 
Tinkham,  148  Mass.  85,  19  N.  E.  18;  Lane  v.  Aloore,  151  Mass.  87, 
90,  23  N.  E.  828,  21  Am.  St.  Rep.  430;  Edwards  v.  Worcester,  172 
Mass.  104,  51  N.  E.  447;  Wigmore  on  Ev.  §§  92,  376.  If  as  a  young 
boy  he  exhibited  a  strong  inclination  to  set  fires,  and  while  still  a 
youth  did  in  several  instances  set  them,  proof  of  these  instances  would 
not  raise  a  reasonable  presumption  that  he  had  destroyed  his  mother's 
property  wantonly,  even  if  at  the  time  he  is  shown  to  have  been  living 
at  home.  It  would  not  follow  from  common  experience,  that  because 
on  some  occasions  in  the  past  he  may  have  done  a  particular  thing  in 
a  particular  manner,  that  upon  another  and  dift'erent  occasion  he 
would  act  in  the  same  way.  Robinson  v.  Fitchburg  &  Worcester 
Railroad,  7  Gray,  92,  95 ;  Eewis  v.  Smith,  107  Mass.  334 ;  Peverly  v. 
Boston,  136  Mass.  366,  49  Am,  Rep.  37.  It  is  because  of  this  vari- 
ability and  uncertainty  in  the  manifestations  of  individual  conduct, 
even  where  the  circumstances  may  be  more  or  less  uniform,  that  while 
an  employe's  general  reputation  for  incompetency  in  the  performance 
of  work  for  which  he  has  been  engaged  is  admissible,  if  the  employer 
knew  or  by  the  exercise  of  reasonable  diligence  should  have  known 
of  it,  single  instances  of  carelessness  are  inadmissible.  Cooney  v. 
Commonwealth  Avenue  Street  Railway,  196  Mass.  11,  14,  81  N.  E. 
905,  and  cases  cited.  The  defendant,  moreover,  if  it  had  been  per- 
mitted to  litigate  the  likelihood  of  his  conduct  by  going  at  large  into 
proof  of  alleged  instances  of  previous  fires,  would  have  presented 
collateral  issues  which  would  have  seriously  embarrassed  and  preju- 
diced the  plaintiff,  and  tended  to  confuse  and  mislead  the  jury.  Emer- 
son V.  Lowell  Gaslight  Co.,  3  Allen,  410,  417;  Darling  v.  Stanwood, 
14  Allen,  504,  508;  Hill  Mfg.  Co.  v.  Providence  &  New  York  Steam- 
ship Co.,  125  Mass.  292,  303;  Com.  v.  Jackson,  132  Mass.  16,  20; 
Com.  v.  Ryan,  134  Mass.  223,  224;  Reeve  v.  Dennett,  145  Mass.  23, 
28,  11  N.  E.  938;  Lane  v.  Moore,  151  Mass.  87,  90,  23  N.  E.  828, 
21  Am.  St.  Rep.  430;  Com.  v.  Hudson,  185  Mass.  402,  70  N.  E.  436. 
The  subsequent  incendiary  fires  for  which  the  son  may  have  been 
responsible,  as  well  as  his  admission  of  having  set  some  of  them,  were 
occurrences  having  no  connection  with  the  plaintiff's  cause  of  action. 
Com.  v.  Campbell,  7'Allcn,  541,  83  Am.  Dec.  705. 


Sec.  2)  CONDUCT  875 

And  the  further  offer  that  "the  district  court  *  "*  ''=  ordered  an 
examination  by  two  physicians  who  committed  him  to  the  hospital 
on  the  ground  that  he  had  a  mania  for  setting  fires"  must  be  con- 
strued as  an  offer  of  the  record  of  judicial  proceedings  to  which  she 
was  not  a  party  or  privy.  McDowell  v.  Connecticut  Fire  Ins.  Co.,  164 
Mass.  394,  41  N.  E.  669.  We  are  therefore  of  opinion  that  the  judge 
in  his  discretion  properly  excluded  the  offer  of  proof. 

Exceptions  overruled. 


MOFFITT  V.  CONNECTICUT  CO. 

(Supreme  Court  of  Errors  of  Connecticut,  1913.    8G  Conn.  527,  86  Atl.  16.) 

Wheeler,  J."  The  plaintiff  claimed  he  signaled  the  motorman 
of  defendant's  northbound  trolley  car  to  stop  the  car ;  that  the  mo- 
torman was  then  looking  in  his  direction,  and  thereupon  the  car  stop- 
ped about  opposite  the  north  corner  of  Main  and  East  Main  streets  in 
New  Britain;  and,  as  he  was  attempting  to  board  the  car,  it  was 
started  suddenly  without  giving  him  a  reasonable  opportunity  to 
board  it,  causing  him  to  be  thrown  upon  the  rear  platform  and  to  be 
injured.  The  defendant  claimed  the  plaintiff  never  signaled  said  car; 
that  it  never  stopped  at  the  north  corner ;  and  that  the  accident  never 
happened. 

Upon  cross-examination  of  plaintiff's  witnesses,  the  defendant  at- 
tempted to  show  that  the  point  where  the  plaintiff's  witnesses  testified 
the  car  stopped,  viz.,  on  said  north  corner,  was  not  the  regular  stop- 
ping place  for  cars,  but  that  the  regular  stopping  place  was  on  the 
south  corner  of  said  streets,  at  which  point  there  were  two  white  poles 
indicating  the  stopping  point.  The  plaintiff*  objected  to  this  evidence 
and  assigns  its  admission  as  a  principal  ground  of  error. 

As  here  pressed,  the  objection  is  that  proof  of  the  place  of  stopping 
at  other  times  is  not  admissible  as  tending  to  disprove  the  plaintiff's 
witnesses  that  the  car  did  in  fact  stop  at  the  north  corner  at  the  time 
in  question ;  that  negligence  of  a  motorman  existing  at  one  time  can- 
not be  disproved  by  proof  of  careful  conduct  at  other  times. 

It  is  true  that  one's  negligence  on  a  particular  occasion  cannot  be 
proved  by  showing  his  negligence  on  other  occasions ;  nor  can  his 
freedom  from  negligence  on  one  occasion  be  shown  by  proof  of  his*- 
due  care  on  other  occasions.  Our  reports  furnish  numerous  illus- 
trations of  the  application  of  this  principle.  Morris,  Adm'r,  v.  East 
Haven,  41  Conn.  252,  254;  State  v.  Goetz,  S3  Conn.  437,  440,  76  Atl. 
1000,  30  L.  R.  A.  (N.  S.)  458;  Budd,  Adm'r,  v.  Meriden  El.  R.  Co., 
69  Conn.  272,  286,  37  Atl.  683 ;  Tiesler  v.  Norwich,  73  Conn.  199,  201, 
47  Atl.  161 ;  Gilmore  v.  Am.  T.  &  S.  Co.,  79  Conn.  499,  504,  66  Atl. 

61  Part  of  opinion  omitted. 


876  CIRCCMSTANTIAL   EVIDENCE  (Cll.  5 

4.  These  are  instances  where  an  act  of  negligence  or  the  reverse  was 
sought  to  be  inferred  from  other  acts  of  negligence  or  nonnegligence. 
The  case  at  bar  differs  from  these  cases,  and  does  not  fall  within  the 
principle  invoked. 

I  This  is  an  attempt  to  corroborate  the  testimony  of  the  operators  of 
the  car  that  it  did  not  stop  at  the  time  and  place  the  plaintiff  claimed  it 
,did  by  showing  that  this  place,  under  the  rules  of  the  defendant,  was 
jnot  its  regular  stopping  place,  but  that  that  was  on  the  opposite  side 
of  the  street.  The  specific  question  is  whether  the  rules  of  the  de- 
fendant railway  as  to  where  its  cars  must  stop  are  admissible  in  sup- 
port of  the  testimony  of  the  operators  of  the  car  that  the  car  did  not 
stop  at  the  point  claimed,  but  at  the  point  named  by  the  rules. 

In  the  ordinary  affairs  of  life  in  a  conflict  over  a  matter  of  fact 
between  two  persons,  men  would  regard  the  fact  that  one  of  tlie  per- 
sons was  in  duty  bound  to  act  under  a  certain  rule  which  was  equally 
obligatory  upon  a  number  of  men  and  important  in  the  prosecution  of 
a  quasi  public  business,  as  some  evidence  in  support  of  his  contention 
that  he  in  fact  acted  under  the  rule.  It  would  be  thought  to  make 
more  probable  his  claim.  An  evidential  fact  which  men  generally 
would  act  upon  in  the  affairs  of  their  life  will  logically  aid  in  deter- 
mining a  legal  issue,  and  ought  to  be  held  legally  relevant  and  of  pro- 
bative value.  And  this  is  the  test  of  legal  admissibiHty.  Locke  v. 
Kraut,  85  Conn.  489,  83  Atl.  626. 

If  this  offer  be  held  in  reality  to  be  an  attempt  to  prove  the  practice 
of  the  defendant  in  stopping  its  cars  in  accordance  with  its  rule,  it 
would  still  be  admissible.  We  should  then  have  a  systematic  and  in 
variable  regularity  of  conduct  upon  the  part  of  a  large  body  of  op- 
eratives; and  such  a  course  of  conduct  would  tend  to  prove  the  custom 
of  the  defendant  to  stop  its  cars  at  the  particular  point  designated  by 
the  rules.  A  systematic  course  of  conduct  on  the  part  of  a  body  of 
men  operating  a  railway,  acting  for  a  common  purpose  resulting  in 
a  custom  in  not  stopping  at  a  given  point,  may  likewise  be  shown, 
since  a  negative  custom  may  be  equally  effective  in  supporting  a  fact 
as  an  affirmative  one.  Wigmore  on  Ev.  §§  92,  376,  379.  This  prin- 
ciple applies  to  acts  negligently  done  or  omitted,  not  to  those  willfully 
done.     State  v.  Railroad,  52  N.  H.  549. 

The  authorities  are  not  uniform ;  but  w^e  think  the  strong  tendency 
is  toward  the  conclusion  we  have  reached,  admitting  evidence  of  a 
like  character,  tending  to  establish  a  systematic  course  of  conduct 
ripening  into  a  fixed  habit  or  a  definite  custom. 

The  liberalization  of  courts  in  more  recent  times  in  the  application 
of  the  rules  of  evidence  has  been  due  in  no  small  measure  to  the  more 
uniform  enforcement  of  that  first  of  all  rules  of  evidence  that  "any 
fact  may  be  proved  which  logically  tends  to  aid  the  trier  in  the  de- 
termination of  the  issue,"  and  to  the  better  appreciation  of  the  prac- 
tical justice  of  making  the  logical  proof  of  the  courtroom  conform 


Sec.  2)  CONDUCT  877 

to  the  logical  proof  of  the  everyday  world.     A  reference  to  a  few  of 
the  more  modern  cases  ^^  will  indicate  the  tendency.     *     *     * 

"When  there  is  a  question  whether  a  particular  act  was  done,  the 
existence  of  any  course  of  office  or  business,  according  to  which  it 
naturally  would  have  been  done,  is  a  relevant  fact."  Hall  v.  Brown, 
58  N.  H.  93;  Jackson  v.  Grand  Ave.  Rv.  Co.,  118  Mo.  199,  24  S.  W. 
192;  McGee  v.  Mo.  Pac.  Ry.,  92  Mo.  220,  4  S.  W.  739,  1  Am.  St.- 
Rep.  706. 

Cases  in  our  own  reports  which  seem  to  conflict  with  the  rule  here 
announced  may,  we  beheve,  be  distinguished,  except  in  one  instance 
(Laufer  v.  Traction  Co.)  they  were  not  instances  of  fixed  habit  or 
custom.  The  testimony  of  Mr.  Victory,  excluded  in  Laufer  v.  Bridge- 
port Tr.  Co.,  68  Conn.  475,  37  Atl.  379,  37  L.  R.  A.  533,  should,  un- 
der our  present  application  of  this  rule,  have  been  admitted. 

For  the  purpose  of  rebutting  the  testimony  of  the  defendant  that 
cars  did  not  stop  at  the  point  claimed  by  him,  the  plaintiff  offered  to 
prove  that  a  car  of  the  defendant  had  stopped  at  this  point  a  year 
after  the  accident.  This  was  remote  and  unconnected  with  an  offer 
to  prove  other  instances  of  stopping  at  times  nearer  to  the  time  of  the 
accident,  or  of  an  offer  to  prove  a  practice.  The  conclusion  of  the 
offer  was  within  the  discretion  of  the  court.    *    *    * 

No  error.  t5 


STEWART  V.  SMITH. 
(Supreme  Court  of  Wisconsin,  1S96.     92  Wis.  76,  65  N.  W.  736.) 

The  action  is  for  the  seduction  of  the  plaintiff's  unmarried  daugh- 
ter, Lizzie.  The  claim  of  the  plaintiff  is  that  his  daughter,  who  was 
24  years  of  age,  was  his  housekeeper,  and  had  general  charge  and 
management  of  his  household  affairs,  and  performed  most  of  the 
work  of  caring  for  the  household ;  that  she  was  of  chaste  character ; 
that  some  time  about  the  month  of  June,  1893,  the  defendant  seduced 
the  said  Lizzie,  and  had  sexual  intercourse  with  her  at  many  different 
times  between  the  date  of  the  seduction  and  the  subsequent  month 
of  December,  whereby  she  became  pregnant  by  the  defendant,  and 
gave  birth  to  a  child  on  May  5,  1894,  by  reason  of  which  seduction 
and  pregnancy  the  plaintiff  has  been  greatly  damaged.  The  answer 
was  a  general  denial,  and  an  allegation  that  before  the  alleged  se- 
duction the  said  Lizzie  was  a  woman  of  unchaste  character  and  rep- 
utation. There  was  verdict  and  judgment  for  the  plaintiff,  from 
which  the  defendant  appeals.     Reversed. 

58  In  the  omitted  passage  the  court  reviewed  Maisels  v.  Dry  Dock,  E.  B.  & 
B.  St.  R.  Co.,  10  Api).  Div.  391,  45  N.  Y.  Supp.  1  (ISOT) ;  Ah-xandiiu  &  F.  II. 
Co.  V.  Herudou,  87  Va.  193,  12  S.  E.  289  (IS90) ;    Hull  v.  Brown,  58  N.  H.  93 

(1877). 


878  CIRCUMSTANTIAL   EVIDENCE  (Cll.  5 

Newman,  J."®  (after  stating  the  facts).  The  errors  alleged  are,  for 
the  most  part,  in  the  admission  and  rejection  of  evidence,  and  to  the 
charge  of  the  court.  It  will  be  necessary  to  consider  some  of  the 
more  important.  They  relate,  in  the  main,  to  the  rejection  of  evi- 
dence tending  to  show  a  want  of  chastity  in  the  woman,  Lizzie  Stewart, 
at  the  time  of  her  alleged  seduction.  This  class  of  evidence  is  proper 
■  to  be  received  for  the  purpose  of  mitigating  the  damages ;  for,  surely, 
if  she  was  unchaste  previously  to  defendant's  intercourse  with  her, 
the  plaintiff  would  be  less  damaged  than  if  a  previously  chaste  daugh- 
ter had  been  debauched.  Besides,  it  tends  to  make  doubtful  that  the 
defendant  is  responsible  for  the  pregnancy  and  the  loss  of  service 
consequent  upon  it.  Want  of  previous  chastity  may  be  proved  by 
general  reputation  and  specific  acts  of  unchastity,  not  only,  but  by 
evidence  which  tends  to  show  impure  conversation,  and  improper  and 
familiar  association  with  men.  West  v.  Druff,  55  Iowa,  335,  7  N. 
W.  636.  The  court  in  that  case  very  cogentl}^  remarks,  "Conversa- 
tions, acts,  and  associations  are  manifestations  of  character,  and  con- 
stitute the  true  index  of  the  heart."  Even  acts  of  an  equivocal  char- 
acter may  be  competent  to  be  received  on  this  question ;  for  it  is  the 
province  of  the  jury  to  determine  what  such  acts  indicate,  and  to  give 
to  them  their  proper  value,  in  the  light  of  all  the  circumstances.  This 
principle  seems  to  have  been  recognized  by  the  trial  court,  but  he  seems 
to  have  applied  it  with  exceeding  illiberality  towards  the  defendant. 
The  following  are  some  examples : 

The  defendant  asked  the  witness  James  Hayes,  who  was  a  hack 
driver,  this  question :  "I  will  ask  you,  Mr.  Hayes,  if  at  any  time  prior 
to  June,  1893,  you  drove  Lizzie  in  your  hack,  in  company  with  a  cer- 
tain gentleman,  whose  name  you  need  not  mention,  with  the  curtains 
of  the  hack  closed,  and  drove  around  the  city,  going  to  no  particular 
place?"  This  question  was  objected  to  as  "incompetent,  irrelevant, 
and  immaterial."  The  court  asked,  "How  is  this  material?"  Defend- 
ant's counsel,  "As  evidence  tending  to  show  a  lack  of  chastity."  The 
objection  was  sustained.  The  proposed  testimony  certainly  tended  to 
show  that  the  young  woman  had  placed  herself  in  a  compromising  sit- 
uation, and  an  improper  association  with  a  man,  indicating,  at  least, 
levity  of  character.  It  was  a  situation  unusual  to  modest  women,  and 
subject  to  animadversion.  It  was  evidence  proper  to  be  considered  by 
the  jury  on  the  question  of  her  previous  chastity,  in  the  light  of  all 
the  evidence  on  that  question.     *     *     * 

A  witness,  W.  H.  Nichols,  who  testified  that  in  the  summer  of  1893, 
and  previous  to  August  of  that  year,  he  saw  the  woman,  Lizzie,  ac- 
companied by  a  young  woman  of  the  town,  several  times,  in  the  eve- 
ning and  nighttime,  going  to  certain  rooms,  over  the  store  of  his  em- 
ployer, which  were  kept  by  young  men  who  "didn't  live  there,  and 
didn't  have  any  place  of  business  there,"  and  "were  not  club  rooms." 

»6  Part  of  opinion  oinitted. 


Sec.  2)  CONDUCT  879 

To  a  question  whether  he  knew  the  reputation  of  the  young  woman 
who  accompanied  her  on  these  occasions,  an  objection  was  interposed, 
when  the  court  remarked :  "I  am  expecting  you  to  bring  this  within 
the  rule  I  have  announced, — the  rule  which  would  be  in  vogue  in 
bastardy  cases,  as  to  access.  It  has  no  bearing  upon  chastity."  To 
this  remark  exception  was  taken.  The  witness  then  answered  that  he 
had  heard  people  say  that  she  was  "a  regular  loose  character, — what  is 
commonly,  known  as  a  'chippie.'  "  It  is  not  obvious  why  this  evidence 
had  "no  bearing  upon  chastity."  It  related  acts  of  a  compromising 
character,  with  other  men,  at  about  the  time  of  her  alleged  seduction 
by  the  defendant.  Lizzie  is  sure  that  the  seduction  took  place  in  the 
month  of  June.  That  is,  of  course,  only  her  estimation  of  date,  for  no 
close  date  for  it  is  fixed.  It  was  not  an  event  of  which  the  date  was 
noted,  for  certainty  of  remembrance;  and  there  is  a  margin  to  be 
allowed  for  errors  in  the  comparison  -of  events,  in  order  to  fix  the 
date  even  approximately.  And,  if  the  acts  narrated  by  the  witness 
really  occurred  at  about  the  uncertain  date  of  an  aclnial  seduction, 
it  would  be  a  fair  question  for  the  consideration  of  the  jury  whether 
they  transpired  before  it,  and  were  not  fair  indicia  of  real  character 
at  its  actual  date.     *     *     * 

It  is  evident,  from  the  whole  case,  that  the  defendant  did  not  have 
a  fair  trial.  The  judgment  of  the  circuit  court  is  reversed,  and  the 
cause  remanded  for  a  new  trial.^° 


CONSOLIDATED  COAL  CO.  OF  ST.  LOUIS  v.  SENIGER. 

(Supreme  Court  of  Illiuois,  1899.     179  111.  370,  53  N.  E.  733.) 

Cartwright,  J.^^  *  *  *  'pj^g  gyj|.  jg  £qj.  (Jamages  on  account  of 
injuries  received  by  plaintiff  while  employed  in  defendant's  coal  mine, 
at  Staunton,  111.  On  the  morning  of  May  14,  1897,  tlie  plaintiff',  with 
seven  others,  got  into  the  cage  at  the  top  of  the  shaft,  which  is  305 
feet  deep,  to  be  lowered  into  the  mine.  After  the  cage  had  descended 
halfway,  as  it  passed  the  other  cage,  which  was  ascending,  it  began 
to  run  down  very  rapidly ;  and,  after  being  checked  for  an  instant,  it 
continued  downward  at  great  speed  to  the  bottom  of  the  shaft,  injuring 
the  plaintiff'.  The  first  count  of  the  declaration  charged  that  the  in- 
jury was  occasioned  by  defendant's  failure  to  provide  a  sufficient  brake 
on  the  drum  to  hold  the  cage  in  case  the  machinery  gave  out.  The  sec- 
ond charged  that  it  was  negligent  in  the  employment  of  an  incompetent, 

60  Compare  Verdi  v.  Donahue,  91  Conn.  418,  99  Atl.  1041  (1917),  that  in  au 
action  for  malicious  prosecution  evidence  of  plaintiff's  general  reputation  as 
a  peaceable,  orderly  citizen  could  not  he  rehutted  by  proof  of  specific  act.s. 
See,  also,  Scott  v.  Sampson,  L.  R.  8  Q.  B.  D.  491  (1SS2),  where  the  plaintiff's 
character  was  important  on  the  question  of  damages. 

61  Part  of  opinion  omitted. 


8S0  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

inexperienced,  and  intemperate  engineer,  who  was  placed  in  charge  of 
the  engine.     *     *     * 

Various  witnesses  were  asked  by  plaintiff's  counsel  as  to  what  the 
manner  of  the  engineer  was  in  handling  the  cage,  or  letting  men  down 
or  bringing  them  up  from  the  mine ;  and  answers  were  given,  against 
objection  of  defendant,  showing  that  he  frequently  ran  the  machinery 
so  fast  that  it  was  impossible  to  properly  control  the  cage  by  a  brake ; 
that  sometimes  he  would  let  the  cage  almost  drop,  and  sometimes  seem 
to  catch  it  before  it  reached  the  bottom,  and  then  let  it  go  bumping  to 
the  bottom;  tliat  sometimes  he  would  run  it  up  swiftly  above  the  land- 
ing ;  that  sometimes  the  men  could  hardly  stand  on  the  cage,  and  stood 
on  tiptoe  to  lessen  the  shock  and  internal  jar;  that  the  cage  would 
strike  the  bottom  of  the  shaft  very  hard,  so  that  the  bread  would 
jump  out  of  their  pails;  and  that  sometimes,  in  landing  the  cage  at  the 
bottom,  the  men  would  be  thrown  oft'  or  knocked  off.  It  is  objected 
that  the  court  erred  in  permitting  this  testimony  to  go  to  the  jury. 
If  we  understand  counsel,  the  claim  is — First,  that  the  incompetency 
of  the  engineer  could  only  be  shown  by  a  general  bad  reputation  for 
incompetency;  and,  secondly,  that  the  fact  of  incompetency  could  not 
be  proved  by  his  conduct,  because  it  contradicted  his  certificate  of 
'.ompetency  given  him  by  the  state  board  of  mine  examiners. 

We  do  not  think  the  evidence  incompetent  on  either  ground.  It 
is  true  that  a  competent  engineer  may  be  negligent  on  a  particular  oc- 
casion," and  not  be  above  the  ordinary  frailties  of  human  nature,  and 
that  incompetency  is  not  shown  by  some  particular  act  of  negligence; 
and  yet  one  who  knows  how  to  run  and  handle  an  engine  properly,  and 
who  has  the  physical  strength  to  do  so,  cannot  be  said  to  be  competent 
for  the  position  of  engineer,  if  he  is  habitually  imprudent,  careless, 
and  reckless.  One  is  incompetent  who  is  wanting  in  the  requisite  quah- 
fications  for  the  business  intrusted  to  him.  Rasor  was  incompetent 
for  the  business  of  engineer,  if  he  was  wanting  in  the  qualifications  re- 
quired for  the  performance  of  the  service,  whether  arising  out  of  a 
lack  of  knowledge  or  capacity,  or  through  imprudence,  indolence,  or 
habitual  carelessness;  and  evidence  which  tended  to  bring  before  the 
jury  his  particular  qualities  in  that  respect,  and  to  show  his  fitness  or 
unfitness  for  the  position  of  engineer,  was  competent.  The  occur- 
rences were  sufficiently  frequent  to  answer  such  a  requirement,  and 
they  were  connected  with  other  evidence  tending  to  show  that  defend- 
ant had  knowledge  of  his  actions,  and  the  manner  in  which  he  handled 
the  cage  and  the  men.  Stone  Co.  v.  Whalen,  151  111.  472,  38  N.  E.  241, 
42  Am.  St.  Re-p.  244.     *     *     * 

Judgment  affirmed."^ 

«2  But  see  Frazler  v.  Ponn.sylvanla  R.  Co.,  .S8  Pn.  101  (isno),  nntp,  p.  65G, 
aiKl  '-iisi's  flicrc  <il('(l:  Turk  v.  New  Voik  rout,  .v.-  II.  K.  K.  Co.,  155  N.  Y.  215, 
49  N.  E.  G74,  03  Aiu.  St.  Kep.  G03  (Ib'JS).  aute.  p.  U5S. 


Sec,  2)  CONDUCT  881 


ZUCKER  V.  WHITRIDGE,  RECEIVER. 

(Court  of  Appeals  of  New  York,  1912.    205  N.  Y.  50,  98  N.  E.  209,  41  L.  R.  A. 

[N.  S.]  GS3,  Aun.  Cas.  1913D,  1250.) 

Vann,  J,^^  Third  avenue  in  the  city  gf  New  York,  running  nearly 
north  and  south,  crosses  Eighteenth  street  almost  at  right  angles.  The 
defendant  has  two  railroad  tracks  laid  on  the  surface  of  the  avenue  at 
the  point  where  it  crosses  the  street ;  the  easterly  track  being  used  for 
cars  going  north,  and  the  westerly  for  those  going  south.  On  the  18th 
of  December,  1908,  at  about  half  past  8  in  the  evening,  the  plaintiff's 
intestate,  while  walking  easterly  on  the  northerly  crosswalk  of 
Eighteenth  street,  as  he  was  about  to  step  over  the  westerly  rail  of  the 
north-bound  track,  was  struck  by  a  nortli-bound  trolley  car  and  fa- 
tally injured.  In  this  action,  brought  by  his  administratrix  under 
the  statute,  the  jury  found  a  general  verdict  in  her  favor,  and  the 
Appellate  Division  affirmed  the  judgment  entered  thereon;  two  of  the 
justices  dissenting. 

As  the  negligence  of  the  defendant  is  not  now  denied,  the  primary 
question   is   whether   the  decedent  was   negligent  as   matter   of   law 
This  question  depends  on  the  testimony  given  in  behalf  of  the  plain 
tiff;   for  no  witness  was  called  by  the  defendant.    *    *    * 

One  other  question  requires  attention  on  account  of  its  importanc- 
and  novelty.  A  witness  who  had  known  the  decedent  for  eight  years, 
and  during  that  period  had  walked  with  him  through  the  streets  of 
the  city  of  New  York,  and  had  crossed  railroad  tracks  with  him,  wa,' 
asked  by  the  plaintiff :  "State  what  you  observed  as  to  his  manner  of 
crossing  railroad  tracks  while  in  your  company."  Objection  was  mado. 
to  the  question  as  incompetent  and  immaterial ;  but  it  was  overruled 
and' an  exception  noted.  The  witness  then  answered:  "When  we 
were  about  to  cross  railroad  tracks,  he  usually  looked  to  the  right  and 
to  the  left  of  him,  and  put  a  restraining  hand  on  my  arm  befoi'e  cross- 
ing, to  make  sure  that  there  were  no  vehicles  of  any  kind  coming.' 
The  defendant's  counsel  moved  to  strike  out  the  answer  as  incompe- 
tent and  not  relevant  to  the  issues  in  the  case;  but  tlie  motion  was 
denied  and  an  exception  taken.     *     *     * 

In  some  states  such  evidence  is  regarded  as  competent.  In  New 
Hampshire  it  was  held  that  the  fact  that  a  person,  killed  at  a  grade 
crossing,  customarily  stopped,  looked,  and  listened  for  trains  at  that 
point  is  competent  to  prove  similar  conduct  at  the  time  of  the  injury, 
in  the  absence  of  testimony  by  any  eyewitness  as  to  his  behavior  on 
that  occasion.  Tucker  v.  Boston  &  Maine  R.  R.  Co.,  7Z  N.  H.  132, 
59  Atl.  943.  No  argument  was  made,  but  the  bare  conclusion  an- 
nounced ;  earlier  cases  being  cited  which  involved  the  custom  of  those 

8  5  Part  of  opinion  omitted. 
IIiNT.Ev. — 56 


S82  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

running  trains  and  of  those  injured  at  railroad  crossings  with  refer- 
ence to  general  care  or  carelessness.  State  v.  Railroad,  52  N.  H.  528, 
549 ;  Smith  v.  Boston  &  Maine  R.  R.  Co,  70  N.  H.  S3,  82,  47  Atl. 
290,  85  Am.  St.  Rep.  596.  The  argument  used  in  the  earlier  case  was 
that  "it  would  seem  to  be  axiomatic  that  a  man  is  more  likely  to  do  or 
not  to  do  a  thing,  or  to  do  or  not  to  do  it  in  a  particular  way,  as  he 
is  in  the  habit  of  doing  or  not  doing  it.  But  this  must  be  understood 
of  acts  which  are  done  or  omitted  to  be  done  without  any  particular 
intent  or  purpose  to  injure  one."     *     *     * 

In  Illinois  evidence  that  the  deceased  was  "habitually  cautious  and 
temperate"  was  held  to  be  competent,  where  there  was  no  eyewitness 
of  the  accident,  but  otherwise  not.  Chicago,  R.  I.  &  P.  R.  R.  Co.  v. 
Clark,  108  111.  113,  117. 

On  the  other  hand,  similar  evidence  has  been  held  incompetent  in 
several  different  states,  as  follows:  In  Wisconsin,  to  show  that  the 
person  injured  "was  an  habitually  careless  man"  (Propsom  v.  Leatham, 
80  Wis.  608,  612,  50  N.  W.  586,  587) ;  in  Pennsylvania,  that  the  de- 
ceased "had  made  a  practice  of  jumping  from  the  elevator  while  in 
motion"  (Baker  v.  Irish,  172  Pa.  528,  531,  33  Atl.  558);  in  Connecti- 
cut, that  the  intestate  "was  a  careful  and  pnident  driver"  (Morris  v. 
Easthaven,  41  Conn.  252) ;  in  Illinois,  "that  the  deceased  was  in  the 
habit  of  jumping  on  trains"  (Peoria  &  Pekin  Co,  v.  Clayberg,  107  111. 
644,  648) ;  in  Iowa,  in  a  case  where  there  was  some  evidence  that 
the  deceased  was  asleep  in  his  buggy  when  he  drove  on  the  track, 
"that  he  had  been  found  asleep  in  his  buggy  on  other  occasions"  (Dal- 
ton  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.,  114  Iowa,  257,  259,  86  N.  W.. 
272,  273) ;  in  Maine,  "that,  in  the  opinion  of  those  who  knew  the  de- 
ceased well,  he  was  a  cautious  and  careful  man,"  no  witness  having 
seen  the  accident  (Chase  v.  ]\Taine  Cent.  R.  R.  Co.,  77  Me.  62,  65,  52 
Am.  Rep.  744) ;  in  Massachusetts,  specific  instances  of  want  of  care 
in  the  engineer  in  his  business  of  running  trains  within  three  months 
of  the  injury,  before  or  after  (Robinson  v.  Fitchburg  &  Worcester  R. 
R.  Co.,  7  Gray,  92,  95) ;  also  "previous  specific  acts  of  negligence  on 
the  part  of  defendant's  engineer  known  to  its  superintendent."  Con- 
nors v.  Morton,  160  Mass.  333,  335,  35'  N.  E.  860. 

Professor  Wjgiriore  seems  to  appreciate  "the  probative  value  of  a 
person's  habit  or  custom  as  showing  the  doing  on  a  specific  occasion 
of  the  act  which  is  the  subject  of  the  habit  or  custom;"  but  he  points 
out  difficulties  which  arise  in  connection  with  such  evidence.  Section 
92.  Thus  he  says:  "Can  there  be  a  habit  of  not  doing?"  Section 
97.  "Is  it  possible  to  believe  that  careless  action  can  ever  be  any- 
thing more  than  casual  or  occasional?  If  it  is,  are  we  not  really  pred- 
icating a  careless  disposition,  rather  than  a  genuine  habit,  and  then 
are  we  not  violating  the  rule  against  character  in  a  civil  action  in 
employing  such  evidence?  These  doubts  serve  to  explain  the  prece- 
dents that  exclude  such  evidence ;  but  it  would  seem  that  the  doubts 
are  not  always  well  founded,  and  that  such  evidence  is  often  of  pro- 


Sec.  2)  CONDUCT  883 

bative  value,  and  is  not  attended  by  the  inconveniences  of  character 
evidence."     1  Wigmore  on  Evidence,  §  97.     *     *     * 

The  weight  of  authority  seems  to  be  against  admitting  evidence  of 
general  conduct  under  proven  circumstances  to  show  conduct  of  the 
same  kind  under  similar  circumstances  on  a  particular  occasion,  when 
there  were  eyewitnesses  of  the  occurrence,  including  the  person  in- 
jured, if  he  survived  the  accident.  We  are  not  now  called  upon  to 
decide  whether  evidence  of  the  habits  of  a  decedent  in  crossing  rail- 
roads is  competent  when  there  is  no  eyewitness  of  the  event.  In 
this  case,  there  were  four  witnesses  who  saw  what  liappened,  and  de- 
scribed the  conduct  of  the  deceased  as  he  walked  to  his  death.  A  ques- 
tion of  evidence,  to  some  extent,  is  a  question  of  sound  policy  in  the 
administration  of  the  law.  Sometimes  it  is  necessary  to  weigh  the 
probative  force  of  evidence  offered,  compare  it  with  the  practical  in- 
convenience of  enforcing  a  rule  to  admit  it,  and  decide  whether,  as 
matter  of  good  policy,  it  should  be  admitted.  Uniform  conduct  under 
the  same  circumstances  on  many  prior  occasions  may  be  relevant  as 
tending  somewhat  to  show  like  conduct  under  like  circumstances  on 
the  occasion  in  question.  All  relevant  evidence,  however,  is  not  com- 
petent. Hearsay,  although  relevant,  is  held  incompetent  from  public 
policy,  because  there  is  safer  and  better  evidence  to  establish  the  fact. 
Parol  evidence  to  vary  a  written  agreement  is  relevant,  but  incompe- 
tent, because  sound  policy  requires  that  the  writing  should  be  pre- 
sumed to  express  the  final  agreement  of  the  parties. 

So,  assuming  tTie  evidence  in  question  to  be  relevant,  I  think  it 
should  be  held  incompetent  under  the  circumstances,  because  its  pro- 
bative force  does  not  outweigh  the  inconvenience  of  a  multitude  of 
collateral  issues,  not  suggested  by  the  pleadings,  the  trial  of  which 
would  take  much  time,  tend  to  create  confusion  and  do  little  good. 
As  was  said  by  Chief  Justice  Peters,  in  Chase  v.  Maine  Central  R.  R. 
Co.,  supra:  "In  many  litigations,  under  such  a  test,  there  would 
arise  a  wager  of  character  which  would  as  unfairly  settle  the  dis- 
pute as  did  formerly  the  wager  of  battle."  The  rule  of  -the  average 
life  is  care,  or  else  it  would  not  long  continue,  yet  the  average  man 
is  conscious  that  he  is  not  always  careful;  and  hence  habit  on  gen- 
eral occasions  is  uncertain  evidence  of  care  on  a  particular  occasion. 
It  is  not  enough  of  itself  to  establish  the  fact  sought  to  be  proved, 
and  at  the  most  simply  bears  upon  the  probability.  Habit  is  an  infer- 
ence from  many  acts,  each  of  which  presents  an  issue  to  be  tried, 
and  necessarily  involves  direct,  and  naturally  invites,  cross  examina- 
tion. The  circumstances  surrounding  each  act  present  another  issue, 
and  thus  many  collateral  issues  would  be  involved  which  would  not 
only  consume  much  time,  but  would  tend  to  distract  the  jury  and  lead 
them  away  from  the  main  issue  to  be  decided.  From  the  want  of 
previous  notice,  the  other  party  would  not  be  prepared  to  meet  such 
evidence ;  and  after  all  the  testimony  of  this  character  was  in  the 
fact  would  remain  that,  as  no  one  is  always  careful,  the  subject  of 


884  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

inquiry,  although  careful  on  many  occasions,  might  have  been  care- 
less on  the  occasion  in  question. 

'  We  are  of  the  opinion  that  the  evidence  objected  to  should  be  held 
incompetent,  and  that,  under  the  circumstances,  the  error  in  admitting 
it  should  not  be  disregarded  as  harmless ;  for  it  may  have  led  to  the 
verdict. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with  costs 
to  abide  the  event. 

CuLLEN,  C.  J.,  and  Gray,  Hiscock,  CkasE,  and  Collin,  JJ-,  con- 
cur. WiLLARD  Bartlett,  J.,  concurs  on  second  ground  discussed 
in  the  opinion. 

Judgment  reversed,  etc. 


SECTION  3.— ^IISCELLANEOUS  FACTS 


PIGGOT  V.  EASTERN  COUNTIES  RY.  CO. 

(Court  of  Common  Pleas,  1S46.     3  C.  B.  229.) 

The  cause  was  tried  before  Alderson,  B.,  at  the  last  assizes  for  the 
county  of  Essex,  when  the  following  facts  appeared  in  evidence :  The 
plaintiff  was  the  occupier  of  a  farm  called  Porter's  farm,  abutting  upon 
the  Eastern  Counties  Railway  in  the  parish  of  Boreham,  about  midway 
between  Witham  and  Chelmsford.  .  On  the  27th  of  August  last,  be- 
tween the  hours  of  twelve  and  one,  at  noon,  the  thatch  of  a  cart-lodge 
or  shed  in  the  plaintiff's  farm-yard,  distant  about  forty-five  feet  from 
the  nearest  line  of  rails,  was  immediately  after  the  passing  of  the 
mail-train  from  London  to  Colchester,  observed  to  be  on  fire;  and, 
notwithstanding  every  exertion,  on  the  part  of  the  plaintiff  and  those 
in  his  employ,  to  extinguish  it,  the  fire  communicated  with  several 
other  farm-buildings  and  farming  implements,  and  totally  destroyed 
them.  At  the  time  of  the  accident  there  was  a  stronsf  wind  blowinsr 
from  tlie  direction  of  the  railway  towards  the  plaintiff's  premises; 
and  the  train  was  proceeding  at  an  ordinary  speed,  viz.  twenty-five 
miles  an  hour. 

In  order  to  show  that  the  fire  was  probably  caused  by  sparks  or 
particles  of  ignited  coke  emitted  from  the  funnel  or  chimney,  or  from 
the  fire  box  of  the  engine  by  which  the  train  was  being  propelled,  the 
plaintiff's  counsel  proposed  to  ask  a  witness  whether  he  had  not  on 
other  occasions  observed  sparks  or  ignited  matter  to  proceed  from 
engines  of  the  defendants  passing  along  the  line  adjoining  tlie  plain- 
tiff's farm. 

It  was  objected,  on  the  part  of  the  defendants,  that  this  was  not  a 
proper  question,  inasmuch  as  it  was  not  competent  to  the  plaintiff  in 
this  case  to  prove  the  emission  of  sparks  or  ignited  matter  from  other 


Sec.  3)  MISCELLANEOUS  FACTS  885 

engines,  passing  the  spots  on  other  occasions,  without  showing  them 
to  have  been  under  the  care  of  the  same  driver,  driven  at  the  same 
speed,  with  the  same  number  of  carriages  and  passengers,  and  of  the 
same  construction  as  the  engine  in  use  at  the  time  of  the  acci- 
dent.    *     *     * 

The  learned  baron  being  of  opinion  that  the  question  might  properly 
be  put,  the  witness  stated,  that  he  had  frequently  seen  pieces  of  ignited 
coke  fall  from  the  lower  part  of  the  engine,  (the  fire-box,)  but  not 
from  the  chimney,  the  day-light  rendering  it  difficult,  if  not  impos- 
sible, to  see  sparks  issuing  thence.  Other  witnesses  also  proved  that 
they  had  frequently  seen  sparks  and  small  particles  of  coke,  about  the 
size  of  a  hazle-nut  or  a  walnut,  proceed  from  the  chimneys  of  the  com- 
pany's engines  when  passing  along  the  hne  at  dark,  and  fall  in  an  ig- 
nited state  on  the  plaintiff's  premises,  near  the  buildings  in  question ; 
and  that  it  sometimes  happened  that  pieces  of  ignited  coke  falling  from 
the  fire-box  on  to  the  driving  wheels  of  the  engine,  were  thrown  by 
them  to  a  considerable  distance.     *     *     * 

The  jury  returned  a  verdict  for  the  plaintiff.  The  amount  of  dam- 
ages was  referred. 

Shee,  Serjt.,  having,  in  Easter  term  last,  obtained  a  rule  nisi  for  a 
new  trial,  on  the  grounds  that  the  answer  to  the  question  objected  to 
at  the  trial  was  improperly  received,  and  that  the  verdict  was  against 
the  weight  of  evidence — the  learned  judge  reported  to  the  court,  that 
he  held  the  evidence  admissible  for  the  purpose  of  ascertaining  wheth- 
er or  not  sparks  or  ignited  particles  of  coke  could  be  thrown  to  so 
great  a  distance  from  the  line  as  the  spot  in  question. 

TiXDAL,  C.  J.®*  *  *  *  With  respect  to  the  evidence  that  was 
objected  to,  I  think  it  clearly  was  admissible  for  the  purpose  for  which 
it  was  received,  viz.  to  ascertain  the  possibility  of  fire  being  projected 
from  the  engine  to  such  a  distance  from  the  railway  as  the  building 
in  question.  Whether  or  not  it  was  admissible  for  any  other  pur- 
pose, it  is  unnecessary  to  inquire. 

CoLTMAN,  J.  I  am  of  the  same  opinion.  It  appears,  from  the  re- 
port of  the  learned  judge,  that  the  evidence  in  question  was  admitted, 
not  for  the  purpose  of  showing  a  general  habit  of  negligence  on  the 
part  of  the  company,  but  to  show  that  the  injury  might  have  been 
caused  in  the  way  suggested.  It  appears  to  me  that  the  jury  might 
reasonably  infer  that  the  fire  was  occasioned  by  sparks  from  the  en- 
gine, and  that  the  fact  of  the  buildings  being  fired  by  sparks  emitted 
from  the  defendants'  engine,  established  a  prima  facie  case  of  negli- 
gence, which  called  upon  them  to  show  that  they  had  adopted  some 
precautions  to  guard  against  such  accidents.  None,  however,  appeared 
to  have  been  attempted. 

IMaulE,  J.     I  also  am  of  opinion  that  this  rule  should  be  discharged. 
It  was  obtained  on  two  grounds — first,  that  certain  evidence  was  im- 

-  «*  Statement  condensed  and  part  of  opinion,  Tiudal,  C.  J.,  omitted. 


SS6  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

properly  received  at  the  trial — secondly,  that  the  evidence  did  not  war- 
rant the  verdict.  The  evidence  objected  to  was,  that  other  engines 
used  on  the  defendants'  line,  of  the  same  description  as  that  which  was 
said  to  have  caused  the  injury  here,  had  on  various  other  occasions 
been  seen  to  throw  particles  of  ignited  matter  to  a  distance  from  the 
lines  as  great  or  greater  than  the  spot  in  question.  The  matter  in  is- 
sue was,  whether  or  not  the  plaintiff's  property  had  been  destroyed  by 
fire  proceeding  from  the  defendants'  engine:  and  involved  in  that 
issue  was  the  question  whether  or  not  the  fire  could  have  been  so 
caused.  The  evidence  was  offered  for  tlie  purpose  of  showing  that  it 
could:  and  for  that  purpose  it  was  clearly  material,  and  admissible. 
As  to  the  other  point,  it  appears  that  the  plaintiff  was  possessed  of 
certain  farm-buildings  adjoining  the  railway,  and  that,  in  consequence 
of  the  sort  of  management  adopted  by  the  company,  fire  was  thrown 
from  a  passing  engine  upon  those  buildings,  and  destroyed  them.  I 
am  far  from  saying  that  it  is  impossible  that  this  could  have  occurred 
without  negligence  on  the  part  of  the  company.  But  it  at  least  affords 
a  strong  presumption  of  negligence,  in  the  absence  of  evidence  to 
show  that  something  had  been  done  by  the  company  to  lessen  the 
chances  of  danger.  It  appeared  that  no  steps  of  that  sort  had  been 
taken,  and  that  the  company  might  have  in  a  great  measure  prevented 
the  emission  of  ignited  matter,  by  using  guards  of  wire,  or  perforated 
plates,  as  suggested  by  Professor  Farey,  or  by  employing  engines  of 
larger  power.  Upon  the  whole,  I  think  the  verdict  would  have  been 
wrong  had  it  been  the  other  way. 
Rule  discharged: 


SHELDON  v.   HUDSON  RIVER  R.   CO. 

(Court  of  Appeals  of  New  York,  1856.     14  N.  Y.  218,  67  Am.  Dec.  155.) 

Denio,  C.  J."^  The  plaintiff  owned  and  possessed  a  building,  used 
as  a  storehouse,  in  Greenburgh,  Westchester  county,  standing  on  the 
easterly  side  of  the  defendants'  railroad,  and  about  sixty-seven  and 
one-half  feet  from  the  track.  It  was  in  the  charge  of  two  of  the  plain- 
tiff's servants.  The  outer  doors  were  kept  locked,  and  no  fire  was 
used  in  it.  On  the  7th  February,  1852,  it  took  fire  and  was  consumed. 
It  was  proved  tliat,  about  t\vcnty-five  minutes  before  the  fire  was  dis- 
covered, a  train  of  cars  of  the  defendants,  drawn  by  a  locomotive  en- 
gine called  the  "Oneida,"  passed  the  place.  On  the  first  floor  of  the 
building  there  was  a  parcel  of  shavings  and  a  quantity  of  lumber,  and 
some  of  the  glass  in  the  windows  of  that  story  had  been  broken.  As 
I  understand  the  testimony,  the  place  where  the  fire  was  first  seen 
was  on  this  floor,  and  not  far  from  one  of  the  windows.  Having  prov- 
ed these  facts,  and  that  the  day  on  which  the  fire  took  place  was 

OS  I'urt  of  oiiliildi)  of  lluliltard,  J.,  otnlltcd. 


Sec.  3)  MISCELLANEOUS  FACTS  887 

windy,  the  direction  of  the  wind  being  toward  the  building,  and  the 
persons  in  charge  having  sworn  that  no  person,  to  their  knowledge, 
had  been  in  it  during  that  day,  the  plaintiff  proposed  to  prove,  by  a 
witness  who  lived  close  to  the  railroad  and  about  one-fourth  of  a  mile 
from  the  building,  that  shortly  before  it  was  burned  he  had  seen 
sparks  and  fire  thrown,  from  the  engines  used  by  tlie  defendants  in 
running  their  trains,  through  the  witness'  premises,  a  greater  distance 
than  this  building  stood  from  the  track  of  the  railroad,  and  that  he 
had  picked  up  from  the  track  after  the  passage  of  the  trains  lighted 
coals  more  than  two  inches  in  length.  The  evidence  was  objected  to 
by  the  defendants'  counsel  and  excluded  by  the  court.  The  plaintiff's 
counsel  excepted.  The  plaintiff  also  gave  evidence  which,  as  his 
counsel  insists,  tended  to  show  that  the  engines  used  by  the  defend- 
ants lacked  some  apparatus  which  was  in  use  upon  some  other  loco- 
motive engines,  and  which  rendered  the  latter  less  liable  to  communi- 
cate fire  to  substances  at  the  side  of  the  road  than  those  which  were 
without  that  apparatus.  The  judge,  in  the  first  instance,  denied  a  mo- 
tion made  by  the  defendants  for  a  nonsuit ;  but  after  the  defendants 
had  proceeded  at  some  length  in  the  examination  of  witnesses  in  their 
behalf,  he  stopped  the  further  examination  of  a  witness  and  nonsuited 
the  plaintiff. 

It  is  argued  by  the  defendant's  counsel  that  the  evidence  offered 
and  rejected  was  too  remote  and  indefinite  to  have  a  just  influence 
upon  the  particular  question  in  issue  in  the  case ;  that  it  did  not  refer 
to  any  particular  engine,  and  that  it  may  be  that  the  one  which  ran 
past  the  plaintiff's  premises,  just  before  the  discovery  of  the  fire,  was 
quite  a  dift'erent  one  from  those  which  scattered  fire  on  the  occasion 
to  which  the  evidence  offered  would  apply.  This  argument  is  not 
without  force ;  but  at  the  same  time  I  think  it  is  met  by  the  peculiar 
circumstances  of  this  case.  These  engines  run  night  and  day,  and 
with  such  speed  that  no  particular  note  can  be  taken  of  them  as  they 
pass.  Moreover,  there  is  such  a  general  resemblance  among  them, 
that  a  stranger  to  the  business  cannot  readily  distinguish  one  from 
another.  It  will,  therefore,  generally  happen  that  when  the  property 
of  a  person  is  set  on  fire  by  an  engine,  the  owner,  though  he  may  be 
perfectly  satisfied  that  it  w-as  caused  by  an  engine,  and  may  be  able 
to  show  facts  sufficient  legitimately  to  establish  it,  yet  he  may  be  ut- 
terly ignorant  what  particular  engine,  or  even  what  particular  train 
did  the  mischief.  It  would  be,  practically,  quite  impossible  by  any 
inquiries  to  find  out  tlie  offending  engine,  for  a  large  proportion  of 
those  owned  by  the  company  are  constantly  in  rapid  motion.  The 
business  of  running  the  trains  on  a  railroad  supposes  a  unity  of  man- 
agement and  a  general  similarity  in  the  fashion  of  the  engines  and 
the  character  of  the  operation. 

I  think,  therefore,  it  is  competent  prima  facie  evidence,  for  a  person 
seeking  to  establish  the  responsibility  of  the  company  for  a  burning 
upon  the  track  of  the  road,  after  refuting  every  other  probable  cause 


888  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

of  tlie  fire,  to  show  that,  about  the  time  when  it  happened,  the  trains 
which  the  company  was  running  past  the  location  of  the  fire  were  so 
managed  in  respect  to  the  furnaces  as  to  be  likely  to  set  on  fire  ob- 
jects not  more  remote,  than  the  property  burned.  It  is  presumed  to 
be  in  the  power  of  the  company,  which  has  intimate  relations  with  all 
its  engineers  and  conductors,  to  controvert  the  fact  sworn  to  if  it  is 
untrue,  or,  if  true  in  a  particular  instance,  that  it  was  not  so  in  respect 
to  the  engines  which  passed  the  place,  at  a  proper  time,  before  the  oc- 
currence of  the  fire.  The  efi'ect  of  the  evidence  would  only  be  to  shift 
the  onus  probandi  upon  the  company,  and  that,  under  the  circumstances 
of  this  case,  seems  to  me  to  be  unavoidable.  The  rule  respecting  the 
onus  often  depends  upon  the  special  circumstances  of  the  case,  and  it 
not  unfrequently  happens  that  a  party  is  obliged  to  establish  a  negative 
proposition.  Cow.  &  Hill's  Notes,  490,  and  cases.  For  instance,  if  it 
were  proved  to  be  universally  true  that  the  engines  on  the  defendants' 
road  scattered  fire  upon  both  sides,  so  as  to  endanger  property  as  near 
the  track  as  this  building  was,  and  it  was  established,  as  was  done  in 
this  case,  that  the  property  claimed  to  have  been  set  on  fire  by  the  neg- 
ligence of  the  defendants  was  actually  burned  without  any  known  cause 
or  circumstance  of  suspicion  besides  the  engines,  it  would  clearly  be 
incumbent  on  the  defendants  to  show  that  they  were  not  the  cause. 
The  present  case  is  only  less  strong  in  degree.  It  was  offered  to  be 
shown  that  a  practice  on  the  part  of  the  company,  which  would  have 
endangered  this  building,  was  indulged  in  about  the  time  and  near  the 
place  where  the  building  was  burned.  That  fact  rendered  it  probable 
to  a  certain  degree  that  the  injury  was  attributable  to  that  cause,  but  it 
left  it  in  the  power  of  the  defendants  not  only  to  controvert  the  evi- 
dence generally,  but  to  show  that  the  special  facts  applicable  directly  to 
the  occurrence  of  the  fire  were  such  as  to  overcome  the  general  infer- 
ence from  the  plaintiff's  evidence,  and  avoid  the  presumption  which 
that  evidence  created.  I  am  of  opinion,  therefore,  that  the  judge  erred 
in  this  ruling. 

The  evidence  excluded  had  a  bearing  upon  both  branches  of  the  case 
which  the  plaintiff  undertook  to  establish.  It  not  only  rendered  it 
probable  that  the  fire  was  communicated  from  the  furnace  of  one  of  tlie 
defendants'  engines,  but  it  raised  an  inference  of  some  weight,  that 
there  was  something  unsuitable  and  improper  in  the  construction  or 
management  of  the  engine  which  caused  the  fire. 

It  is  unnecessary  to  express  an  opinion  upon  the  case  as  it  stood, 
without  the  evidence  of  which  the  plaintiff  was  deprived.  It  may  be 
that,  when  the  case  is  tried  upon  the  principle  indicated,  it  will  present 
no  question  or  a  very  different  one  from  that  which  is  now  before  us. 

The  judgment  must  be  reversed,  and  there  must  be  a  new  trial. 

Huh  HARD,  J.  *  *  *  The  theory  on  the  trial  was  that  the  sparks 
or  cinders  causing  the  fire  originated  from  the  smoke-pipe  or  ash-pan 
of  the  engine  "Oneida,"  attached  to  a  train  of  passenger  cars  which 
passed  about  twenty-five  minutes  before  the  fire  was  discovered.     No 


Sec.  3)  MISCELLANEOUS  FACTS  889 

Other  engine  passing  about  that  time,  it  may  be  assumed,  for  the  pres- 
ent purpose,  that  if  the  defendants  are  responsible  at  all,  the  liability 
is  chargeable  to  the  "Oneida"  as  the  offending  engine.  It  was  not 
proposed  to  show,  on  the  trial,  that  sparks  and  cinders,  capable  of  ig- 
nition, had  been  seen,  on  other  occasions,  to  issue  from  the  "Oneida." 
Such  evidence  would  have  been  clearly  admissible,  I  think,  from  the 
necessity  of  the  case.  It  generally  or  frequently  happens,  as  may  have 
been  the  fact  in  this  case,  that  engine  sparks  cause  fire,  without  the 
sufferer  being  able  to  prove  the  fact  by  positive  testimony.  Circum- 
stantial evidence  must,  of  necessity,  be  resorted  to  or  injustice  must  be 
suffered,  without  redress,  in  very  many  instances. 

The  proof  offered  and  rejected  related  to  the  emission  of  igneous 
matter  by  the  defendants'  engines  generally,  without  designating  any 
one  in  particular.  This  evidence,  I  think,  was  competent,  and  should 
have  been  received  upon  the  proposition  whether  the  defendants  caused 
the  fire.  It  w-as  a  primary  fact  to  trace  the  fire  to  the  defendants,  as 
a  ground  of  liability.  There  is  no  pretense  in  this  case  that  the  con- 
struction of  the  "Oneida,"  as  it  respects  the  emission  of  sparks  or  cin- 
ders, dift'ered  from  that  of  every  other  engine  used  by  the  defendants 
on  their  road.  It  must  follow,  therefore,  that  under  the  same  circum- 
stances, the  same  amount  of  sparks  and  coals  of  fire  would  issue  from 
every  other  engine  as  from  the  "Oneida."  The  proof  offered  was, 
therefore,  practically  the  same  as  though  it  had  been  proposed  to  show 
that  the  "Oneida"  frequently  or  generally  made  emissions  when  run- 
ning at  the  usual  speed. 

The  competency  of  this  evidence  has  been  directly  decided  in  the 
English  Court  of  Common  Pleas.  Piggot  v.  The  Eastern  Counties 
Railway  Co.,  10  Jurist,  571 ;  Aldridge  v  Great  Western  Railway  Co., 
3  Man.  &  Gr.  515.  These  cases,  upon  this  point,  are  well  decided.  The 
principle  is  essential  in  the  administration  of  justice,  inasmuch  as  cir- 
cumstantial proof  must,  in  the  nature  of  things,  be  resorted  to,  and  inas- 
much as  the  jury  cannot  take  judicial  cognizance  of  the  fact  that  loco- 
motive engines  do  emit  sparks  and  cinders  which  may  be  borne  a  given 
distance  by  the  wind.  The  evidence  was  competent  to  establish  certain 
facts  which  were  necessary  to  be  established  in  order  to  show  a  possible 
cause  of  the  accident,  and  to  prevent  vague  and  unsatisfactory  sur- 
mises on  the  part  of  the  jury.     *     *     * 

Judgment  reversed. 


COLLINS  V.  NEW  YORK  CENT.  &  H.  R.  R.  Co. 
(Court  of  Appeals  of  New  York,  18SS.    109  N.  Y.  24.S,  16  N.  E.  50.) 

Peckiiam,  J.''^  The  plaintiff  sought  to  recover  from  the  defendant 
damages  which  he  sustained  from  the  loss  of  certain  property  by  fire 
which  he  alleged  was  caused  by  the  negligence  of  defendants  in  permit-^ 

«8  Part  of  opinion  omitted. 


890  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

ting  sparks  from  one  of  their  engines  to  escape,  the  result  of  which 
was  the  fire  in  question.  Plaintiff  is  a  farmer  residing  near  La  Salle, 
county  of  Niagara,  and  his  property  lies  contiguous  to  defendant's 
road-bed.  The  Erie  Railway  runs  parallel  with  the  defendant's  near 
the  plaintiff's  premises,  and  for  some  distance  east  and  west  of  them. 
It  is  alleged  tliat  this  fire  was  set  by  defendant's  engine  No.  113.  It 
appeared  in  evidence  that  there  was  an  Erie  train  which  passed  plain- 
tiff's premises  a  short  time  prior  to  defendant's  engine  No.  113,  and 
the  claim  was  made  on  the  part  of  defendant  that  the  fire  in  question 
was  set  by  sparks  from  the  Erie  engine.  It  was  claimed  on  the  part 
of  the  plaintiff  that  the  spark-arrester  on  defendant's  engine  was  out 
of  order,  and  had  been  negligently  allowed  to  remain  out  of  order  for 
some  time,  in  consequence  of  which  larger  sparks  than  could  have 
otherwise  escaped  were  emitted  from  it,  and  that  such  sparks  remain- 
ed alive  longer  than  smaller  ones,  and  that  they  were  the  cause  of  the 
damage  in  question.     *    *    * 

Evidence  was  given  on  the  part  of  the  plaintiff,  under  objection  by 
defendant,  of  the  emission  of  sparks  from  this  same  engine,  No.  113, 
of  a  very  large  size,  several  months  after  the  happening  of  the  fire  in 
question.  At  the  time  of  its  admission  there  was  no  proof  in  relation 
to  the  manner  of  the  construction  of  that  engine.  The  subsequent 
proof  showed  pretty  clearly  that  the  plan  of  its  construction  was  such 
that  if  it  were  in  good  order  no  such  sized  sparks  could  be  emitted 
from  it.  If  sparks  the  size  described  were  emitted  from,  this  engine 
several  months  after  the  fire  in  question,  it  would  seem  quite  clear  that 
they  came  through  the  spark-arrester  by  reason  of  its  being  out  of 
repair.  In  order  to  permit  evidence  such  as  this,  of  what  happened 
six  months  after  the  fire,  it  would  be  necessary  to  show,  either  that 
through  the  fault  of  its  construction  sparks  of  that  size  could  be 
emitted,  or  else  that  the  engine  was  in  the  same  condition  of  repair 
that  it  was  when  the  fire  in  question  occurred. 

As  we  have  said,  the  evidence  is  pretty  clear  that  the  plan  of  con- 
struction would  not  permit  sparks  of  that  size  to  escape,  and  there- 
fore, the  more  important  it  would  be  to  show — if  such  evidence  is  to 
be  admitted — that  the  engine  was  in  the  same  condition  that  length  of 
time  after  the  happening  of  the  fire  that  it  was  in  when  the  fire 
occurred.  It  will  rest  with  the  trial  court  upon  the  new  trial  to  satis- 
fy itself  upon  this  state  of  things  before  permitting  evidence  of  that 
nature  to  be  given.    *     *    * 

Judgment  reversed. 


Sec.  3)  MISCELLANEOUS  FACTS  891 

FIRST  NAT.  BANK  OF  HOOPESTON  v.  LAKE  ERIE  &c  W. 

R.  CO. 
(Supreme  Court  of  Illinois,  1898.    174  111.  36,  50  N.  E.  1023.) 

MagrudER,  J.®^  There  is  only  one  question  in  this  case  which 
counsel  for  appellant  press  upon  our  attention,  and  that  question  is 
whether  or  not  the  court  below  erred  in  refusing  to  allow  appellant 
to  show  in  rebuttal  that  other  fires  had  been  set  by  appellee's  engines  at 
other  times  in  tlie  immediate  vicinity  of  the  elevator  both  before  and 
after  it  was  destroyed.  The  engine  or  locomotive  which  was  alleged  to 
have  caused  the  fire  was  identified  as  the  engine  which  drew  the  freight 
train  passing  the  elevator  near  the  noon  hour  of  August  31,  1892.  It 
is  conceded  by  counsel  for  appellant  that  the  testimony  was  confined  to 
one  certain  engine  of  the  appellee.  In  cases  of  this  kind  it  often  hap- 
pens that  tlie  proof  does  not  identify  the  particular  engine  which  caused 
the  loss,  but  is  confined  to  negligence  in  the  operation  and  construction 
of  the  engines  generally  which  run  on  the  road.  The  rule  seems  to  be 
settled  by  the  weight  of  authority  that  when  a  fire  has  been  caused  by 
sparks  from  a  particular  locomotive,  which  is  identified,  or  by  one  or 
the  other  of  two  locomotives,  "evidence  of  other  fires,  kindled  by  dif- 
ferent locomotives,  before  and  after  the  fire  complained  of,  is  not  ad- 
missible." 8  Am.  &  Eng.  Enc.  Law,  p.  9,  note.  The  rule  is  thus  stated 
by  Shearman  and  Redfield  on  the  Law  of  Negligence  (section  675) : 
"When  the  particular  engine  which  caused  the  fire  cannot  be  fully 
identified,  evidence  that  sparks  and  burning  coals  were  frequently  drop- 
ped by  engines  passing  on  the  same  road  upon  previous  occasions  is 
relevant  and  competent  to  show  habitual  negligence,  and  to  make  it 
probable  that  the  plaintiff's  injury  proceeded  from  the  same  quarter. 
*  *  *  If  the  engine  which  emitted  the  fire  is  identified,  then  evi- 
dence on  either  side  as  to  the  condition  of  other  engines,  and  of  their 
causing  fires,  has  been  held  irrelevant,  but  not  so  if  it  is  not  fully  identi- 
fied." 

In  Gibbons  v.  Railroad  Co.,  58  Wis.  335,  17  N.  W.  132,  the  court 
said :  "Where  there  is  no  proof  of  what  particular  engine  set  the  fire, 
and  the  circumstantial  evidence  is  such  that  there  is  a  strong  probability 
that  some  engine  on  the  road  did  set  the  fire,  then  it  may  be  proper  to 
show  that  the  engines  on  that  road  generally  emitted  sparks,  or  that 
some  one  or  more  of  them  did  so  at  other  times  and  places."  In  Hen- 
derson V.  Railroad  Co.,  144  Pa.  461,  22  Atl.  851,  16  L.  R.  A.  299,  27 
Am.  St.  Rep.  652,  it  was  said:  "Where  the  injury  complained  of  is 
shown  to  have  been  caused,  or,  in  the  nature  of  the  case,  could  only 
have  been  caused,  by  sparks  from  an  engine  which  is  known  and  identi- 
fied, the  evidence  should  be  confined  to  the  condition  of  that  engine,  its 
management,  and  its  practical  operation.  Evidence  tending  to  prove 
defects  m  other  engines  of  the  company  is  irrelevant,  and  should  be 

«T  Statement  and  part  of  opinion  omitted- 


892  CIRCUMSTANTIAL   EVIDENCE  (Cll.  5 

excluded.  ♦  *  *  It  may  therefore  be  considered  as  settled  in 
cases  of  this  kind,  where  the  offending  engine  is  not  clearly  or  satis- 
factorily identified,  that  it  is  competent  for  the  plaintiff  to  prove  that 
the  defendant's  locomotives  generally,  or  many  of  them,  at  or  about 
the  time  of  the  occurrence,  threw  sparks  of  unusual  size,  and  kindled 
numerous  fires  upon  that  part  of  tlieir  road,  to  sustain  or  strengthen  the 
inference  that  the  fire  originated  from  the  cause  alleged."  In  Camp- 
bell V.  Railway  Co.,  121  Mo.  340,  25  S.  W.  936,  25  L.  R.  A.,  175,  42 
Am.  St.  Rep.  530,  it  was  said:  "If  the  issue  had  been  of  negligence  in 
the  construction  or  management  of  the  engine  only,  and  the  engine 
which  could  only  have  caused  the  damage  had  been  clearly  identified, 
evidence  that  other  engines  emitted  sparks  and  set  fires  would  have 
been  inadmissible  under  the  decisions  of  tliis  court." 

Counsel  for  appellant  refer  to  certain  cases  which,  as  it  is  claimed, 
hold  to  the  contrary  of  this  doctrine,  but  we  think  that,  upon  a  careful 
examination  of  such  cases,  the  facts  therein  stated  will  be  shown  to 
be  such  as  not  to  bring  them  in  conflict  with  the  rule  here  laid  down. 
For  instance,  in  Thatcher  v.  Railroad  Co.,  85  Me.  502,  27  Atl.  519, 
where  it  was  held  that  evidence  was  admissible  to  show  that  fires  were 
communicated  by  defendant's  locomotives  at  different  times  within  a 
certain  jperiod  in  the  vicinity  where  the  plaintiff's  lumber  was  destroyed, 
it  did  not  appear  that  the  plaintiff,  by  his  own  testimony  or  that  of  his 
witnesses,  was  able  to  identify  the  locomotive  claimed  to  have  set  the 
fire.  So,  in  Railroad  Co.  v.  Richardson,  91  U.  S.  454,  23  L.  Ed.  356, 
which  upon  its  face  seems  to  sustain  the  contention  of  appellant,  it  is 
said  by  Mr.  Justice  Strong:  "The  particular  engines  [which  caused  the 
fire]  were  not  identified."  The  case  of  Railroad  Co.  v.  Richardson, 
supra,  is  commented  upon  in  Gibbons  v.  Railroad  Co.,  supra,  and  its 
reasoning  upon  tliis  subject  is  criticised.  In  view  of  the  rule  thus  an- 
nounced, and  inasmuch  as  the  evidence  in  the  case  at  bar  tended  to 
identify  a  particular  engine  as  the  cause  of  the  injury,  there  was  no 
error  in  the  action  of  the  court  below  in  refusing  to  admit  the  offered 
testimony,"^ 

Appellant,  however,  contends  that  the  testimony  should  have  been 
admitted  upon  the  alleged  ground  that  it  was  proper  evidence  in  rebut- 
tal of  the  case  made  by  the  defendant  below.     *     *     * 

Evidence  that  other  engines  had  caused  other  fires  about  the  same 
time  was  merely  evidence  tending  to  show  that  this  fire  may  have  been 
caused  by  a  spark  from  the  particular  engine  in  question.  Therefore 
the  testimony  should  have  been  introduced,  if  at  all,  as  a  part  of  plain- 
tiff's original  *"'  case.    It  was,  however,  offered  as  a  part  of  plaintiff's 

8  8  Accord:  Coale  v.  Hannibal  &  St.  J.  Jt.  Co.,  GO  Mo.  227  (1S75) ;  Baltimore 
&  S.  R.  Co.  V.  Woodruff,  4  Md.  242,  59  Am.  Dec.  72  (1853) ;  Erie  R.  Co.  v. 
Decker,  78  Pa.  293  (1875). 

88  Tiiat  in  such  carscs  the  evidence  is  not  admissible  in  chief,  any  more 
than  in  rebuttal,  see  Illinois  Cent.  R.  Co.  v.  Bailey,  222  111.  480,  78  N.  E. 
8.'j:i  (1900),  semble. 


Sec.  3)  MISCELLANEOUS  FACTS  893 

rebutting  testimony.  Where  testimony  which  might  properly  have  been 
introduced  as  proof  in  chief  is  offered  by  the  plaintiff  in  rebuttal,  it 
is  discretionary  with  the  trial  court  whether  such  testimony  shall  be 
admitted  or  not,  and  the  action  of  the  court  in  this  regard  is  not  as- 
signable as  error.  City  of  Sandwich  v.  Dolan,  141  111.  441,  31  N.  E. 
416;  Railroad  Co.  v.  Richardson,  supra;  8  Enc.  PI.  &  Prac.  p.  132. 
Inasmuch,  therefore,  as  the  offered  evidence,  if  competent  at  all,  would 
have  been,  in  strictness,  a  part  of  the  plaintiff's  original  case,  its  ad- 
mission or  exclusion  upon  the  rebuttal  was  a  matter  of  discretion,  and, 
whether  right  or  Avrong,  cannot  be  reviewed  here.  The  fact  that  the 
defendant  sought  to  show  in  defense  tliat  the  fire  was  caused  by  some 
agency  inside  of  the  elevator  did  not  make  the  offered  testimony  strict- 
ly rebutting  in  its  character,  but  it  was  none  the  less  on  that  account  a 
part  of  plaintiff's  original  case,  as  going  to  show  that  the  fire  was 
caused  by  a  spark  from  the  engine.  Nor  can  it  be  said  that  the  testi- 
mony was  admissible  merely  because  one  of  defendant's  witnesses,  in 
stating  what  kind  of  appliance  for  the  arresting  of  sparks  was  upon  the 
engine  in  question,  also  stated  that  the  same  ^°  kind  of  appliance  was  on 
all  the  other  engines  of  the  road.  As  the  engine  causing  the  injury  was 
identified,  the  question  was  whether  it  was  properly  equipped  or  man- 
aged. It  was  immaterial  how  other  engines  may  have  been  equipped 
or  managed.  And,  even  if  it  had  been  shown  that  other  fires  had  oc- 
curred caused  by  other  engines,  such  fires  may  have  been  caused  by  the 
careless  management  of  the  engines,  rather  than  the  defective  character 
of  their  equipment.  Surely,  proof  tending  to- show  that  other  engines 
were  managed  improperly  could  throw  no  light  upon  the  question 
whether  the  engineer  managing  this  particular  engine  was  skillful  or 
not.     *     *     * 

Judgment  affirm.ed. 

7  0  McReynolds,  J.,  In  Texas  &  P.  Ry.  Co.  v.  Eosborough,  23.5  U.  S.  429, 
35  Sup.  Ci.  117,  59  L.  Ed.  299  (1914):  "While  insisting  that  sparks  or  cinders 
from  only  three  identified  engines  could  have  caused  the  fire,  the  railway 
company  nevertheless  introduced  some  evidence  tending  to  show  that  all 
locomotives  were  properly  equipped.  In  rebuttal,  and  over  objection,  a 
witness  was  permitted  to  testify  that  within  a  few  days  after  the  accident 
he  saw  engines  while  passing  near  the  scene  emit  large  cinders;  and  the 
admission  of  such  evidence  constitutes  the  principal  subject  of  complaint  here. 
In  view  of  the  pleadings  and  the  statements  of  preceding  witnesses  this  action 
was  not  improper.  Texas  &  Pacific  Railway  v.  "Watson,  190  U.  S.  2S7,  289 
[23  Sup.  Ct.  681,  47  L.  Ed.  1057  (1903)] ;  Goodman  v.  Lehigh  Valley  R.  Co. 
of  New  Jersey,  78  N.  J.  Law,  317,  325,  326  [74  Atl.  519  (1909)]." 


894  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

TEXAS  &  p.  R.  CO.  V.  HARTFORD  FIRE  INS.  CO.  et  al. 
(Circuit  Court  of  Appeals,  Fifth  Circuit,  1916.    230  Fed.  SOI,  145  C.  C.  A.  111.) 

Walker,  Circuit  Judge.  This  was  an  action  to  recover  damages 
for  the  destruction  on  a  date  stated,  of  cotton  by  fire,  which  was 
attributed  to  sparks  from  a  locomotive  or  locomotives  of  the  defend- 
ant, which  were  alleged  not  to  have  been  properly  provided  with  ap- 
pliances for  preventing  the  escape  of  sparks  or  fire;  it  being  also 
alleged  that  the  defendant  did  not  exercise  proper  care  to  keep  said 
locomotives  in  good  and  proper  condition  and  repair  as  regards  the 
escape  of  fire  therefrom,  and  that  its  employes  in  charge  of  said  loco- 
motives negligently  and  improperly  operated  them,  so  as  to  cause  large 
quantities  of  sparks  and  cinders  to  escape.  After  the  plaintiffs  had 
introduced  direct  evidence  tending  to  prove  that,  on  the  date  men- 
tioned, the  cotton,  which  was  on  a  platform  adjoining  the  defendant's 
track,  was  discovered  to  be  on  fire  very  shortly  after  three  locomotives 
of  the  defendant  had  passed,  one  or  more  of  which  was  seen  emitting 
large  cinders  in  unusual  quantities,  and  that  there  was  no  means  for 
the  fire  being  set  other  than  the  passing  locomotives,  they  were  per- 
mitted, over  objections  duly  made  by  the  defendant,  to  introduce  tes- 
timony to  the  effect  that  two  or  three  days  after  the  fire  a  locomotive 
of  the  defendant,  which  was  admitted  not  to  be  either  one  of  the  three 
which  passed  the  platform  shortly  before  the  fire  was  discovered,  was 
seen  emitting  large  cinders,  which,  as  it  was  passing  the  platform, 
fell  on  cotton  and  scorched  it.  ♦ 

In  the  case  of  Grand  Trunk  Railroad  Company  v.  Richardson,  91 
U.  S.  454,  23  L.  Ed.  356,  in  which,  so  far  as  the  report  of  the  case 
indicates,  there  was  an  absence  of  any  direct  evidence  as  to  the  emis- 
sion of  sparks  by  either  of  the  two  locomotives  which  passed  the  scene 
of  the  fire  shortly  before  it  started,  and  those  locomotives  not  being 
identified,  it  was  held  that  error  was  not  committed  in  admitting  evi- 
dence that  some  locomotives  of  the  same  defendant,  at  other  times 
during  the  same  season,  prior  to  the  time  of  the  fire  in  question,  had 
scattered  fire  while  passing  the  same  place.  It  seems  that  there  was  a 
necessity  in  that  case  to  resort  to  circumstantial  evidence  to  prove  that 
sparks  were  scattered  by  either  of  the  two  engines  which  could  have 
started  the  fire,  and  it  was  not  made  to  appear  that  the  scattering  of 
sparks  testified  to  was  by  a  locomotive  or  locomotives  which  had  no 
part  in  causing  the  fire  in  question.  In  the  instant  case  there  was  di- 
rect evidence  to  support  a  finding  that  one  or  more  of  the  locomotives 
which,  shortly  before  the  fire  was  discovered,  passed  the  platform  upon 
which  the  cotton  was,  then  emitted  sparks  which  might  have  started  the 
fire,  and  it  was  admitted  that  the  locomotive  which,  several  days  after 
the  fire,  was  seen  emitting  large  sparks  was  in  no  way  responsible  for 
the  injury  complained  of. 


Sec.  3)  MISCELLANEOUS  FACTS  895 

We  are  not  of  opinion  that  the  ruling  in  the  case  cited  furnishes 
support  for  the  proposition  that  evidence  is  admissible  as  to  the  con- 
struction, condition  or  operation,  at  a  date  subsequent  to  the  fire 
complained  of,  of  a  locomotive  which  confessedly  did  not  contribute 
to  the  starting  of  that  fire.  Where,  as  in  the  instant  case,  the  facts  of 
the  starting  of  the  fire  complained  of  are  so  far  disclosed  by  direct  evi- 
dence introduced  by  the  plaintiffs  as  to  make  it  apparent  that,  if  it  was 
started  by  sparks  from  a  passing  locomotive,  it  was  so  started  by  one 
or  more  of  three  locomotives  which  passed  shortly  before  the  fire  was 
discovered,  further  inquiry  to  support  the  charge  made  should  be  lim- 
ited to  the  construction,  condition,  and  operation  of  those  locomotives, 
so  shown  to  be  the  only  ones  by  which  the  fire  might  have  been 
caused.  In  such  a  situation  it  is  apparent  that  evidence  as  to  the  emis- 
sion of  sparks  several  days  later  by  a  locomotive  which  was  admitted 
not  to  be  either  of  three  which  might  have  started  the  fire  has  refer- 
ence to  a  matter  which  is  entirely  foreign  to  the  issue  to  be  passed  on, 
namely,  the  negligence  vel  non  of  the  defendant  with  reference  to  the 
construction,  maintenance,  or  operation  of  the  locomotive  or  locomo- 
tives which  might  have  caused  the  fire.  That  evidence  could  have  no 
logical  or  rational  tendency  to  prove  how  those  locomotives  were  con- 
structed, in  w^hat  state  of  repair  they  were,  or  how  they  were  operated. 
It  could  shed  no  light  on  the  inquiry  as  to  what  caused  the  fire.  That 
evidence  as  to  the  excessive  emission,  several  days  after  the  fire  in 
question,  of  sparks  by  a  locomotive  of  the  defendant  which  is  identified 
as  one  that  had  no  part  in  causing  that  fire,  is  inadmissible  to  support 
a  charge  that  the  fire  was  negligently  caused  by  some  other  locomotive 
or  locomotives  of  the  defendant  is  supported  by  reason  and  by  abun- 
dant authority.  Lesser  Cotton  Co.  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  114 
Fed.  133,  52  C.  C.  A.  95;  Henderson,  Hull  &  Co.  v.  Philadelphia  & 
Reading  R.  Co.,  144  Pa.  461,  22  Atl  851,  16  L.  R.  A.  299,  27  Am.  St. 
Rep.  652 ;  Alabama  G.  S.  R.  Co.  v.  Johnston,  128  Ala.  283,  29  South. 
771;  Gibbons  v.  Wisconsin  Valley  Railroad  Co.,  58  Wis.  335,  17  N. 
W.  132;  San  Antonio  &  A.  P.  Ry.  Co.  v.  tlome  Insurance  Co.  of 
New  York  (Tex.  Civ.  App.)  70  S.  W.  999 ;  W.  A.  Morgan  &  Bros.  v. 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas,  50  Tex.  Civ.  App.  420,  110  S. 
W.  978;  Moose  v.  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  (Tex.  Civ. 
App.)  179  S.  W.  75;  4  Chamberlayne  on  Evidence,  §  3191. 

In  another  case  which  grew  out  of  the  same  fire  it  has  been  held 
that  error  was  not  committed  in  admitting  evidence  which  was  substan- 
tially the  same  as  that  above  considered.  Texas  &  Pacific  Ry.  v.  Ros- 
borough,  235  U.  S.  429,  35  Sup.  Ct.  117,  59  L.  Ed.  299;  Texas  &  P. 
Ry.  Co.  v.  Rosborough,  209  Fed.  205,  126  C.  C.  A.  299.  In  that  case 
that  evidence  was  introduced  by  the  plaintiff'  in  rebuttal  after  the  de- 
fendant had  introduced  evidence  tending  to  show  that  its  locomotives 
were  all  equipped  with  a  standard  spark  arrester,  and  were  kept  in 
order  and  well  handled,  and  it  was  held  to  be  admissible  as  rebutting 
evidence.     The  ground  upon  which  the  admission  of  the  evidence  in 


896  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

that  case  was  sustained  does  not  exist  in  the  instant  case.  Here  the 
testimony  complained  of  was  introduced  as  a  part  of  the  evidence  by 
which  the  plaintiffs  undertook  to  sustain  the  averments  of  their  peti- 
tion. The  conclusion  is  that  it  was  not  competent  for  the  purpose  for 
which  it  was  offered  and  admitted,  and  that  the  admission  of  it  was 
prejudicial  error. 

The  judgment  is  reversed.^* 


KNICKERBOCKER  ICE  CO.  v.  PENNSYLVANIA  R.  CO. 
AMERICAN  ICE  CO.  v.  SAME. 

(Supreme  Court  of  Pennsylvania,  1916.     253  Pa.  54,  97  Atl.  1051.) 

Potter,  J.^^  We  have  here  two  appeals,  in  cases  which  were  tried 
together  in  the  court  below,  were  argued  together  here,  and  will  be 
disposed  of  in  one  opinion. 

The  principal  question  here  presented  for  consideration  is  whether 
there  was  sufficient  evidence  of  the  cause  of  the  fire,  and  of  the  negli- 
gence of  the  defendant  company,  to  justify  the  submission  of  these 
questions  to  the  jury.  The  point  is  fairly  raised  in  the  first  and  second 
assignments  of  error,  which  are  respectively  to  the  refusal  by  the  court 
below  of  binding  instructions  for  defendant,  and  to  the  refusal  of 
defendant's  motion  for  judgment  n.  o.  v.     *     *     * 

From  the  evidence  in  ,the  present  case,  the  possibility  of  tlie  fire 
having  reached  plaintiffs'  property  from  sparks  negligently  escaping 
from  defendant's  passing  engines,  was  manifest.  The  real  question  to 
be  determined  was  whether  the  fire  was  probably  due  to  that  cause,  and 
to  no  other. 

The  testimony  of  a  number  of  witnesses  tended  to  show  that  the  fire 
started  on  the  outside  of  plaintiffs'  fence  next  to  the  railroad;    that 

71  Woodward,  J.,  in  Buhrmaster  v.  New  York  Cent.  &  11.  R.  R.  Co.,  173 
App.  Div.  G2,  1.58  N.  Y.  Supp.  712  (1916):  "*  *  *  But  if  it  does  we  are 
persuaded  that  the  authority  relied  upon  (Sheldon  v.  Hudson  River  Railroad 
Co.,  14  N.  Y.  218  [67  Am.  Dee.  155  (1856)]),  is  not  controlling  at  this  time. 
That  determination  was  made  in  the  primitive  days  of  railroading,  in  1856, 
when  the  engines  were  known  by  name,  and  when  there  was  only  one  type 
in  common  use,  and  all  were  etjuipped  alike,  sul)stantially,  and  evidence  of 
what  these  engines  usually  did  under  ordinary  conditions  was  a  very  different 
thing  from  taking  the  testimony  to-day,  with  the  great  variety  of  engines  in 
use,  and  particularly  when  it  is  not  shown  that  the  conditions  were  the  same 
when  the  alleged  sparks  were  thrown  a  greater  distance.  Obviously,  with  the 
wind  blowing  a  gale,  a  defective  engine  miglit  have  thrown  sparks  which 
would  be  carried  alive  a  distance  of  several  hundred  feet,  while  another  en- 
gine, in  good  condition,  and  in  a  comparatively  light  wind,  would  not  throw 
off  sparks  of  any  danger  whatever;  and  so  the  mere  fact  tliat  some  witness 
had  found  large  sparks  a  coiisiderahle  distance  fi'oni  the  line  of  the  railroad 
would  prove  nothing  of  value  in  determining  whether  the  lire  in  (piestion  was 
lighted  by  a  spark  from  an  engine  in  passing,  and  the  case  of  Chandlei  v. 
Rutland  Railroad  Company,  140  Ar)p.  Div.  OS  [124  N.  Y.  Supp.  1016  (1910)], 
seems  to  us  controlling  upon  the  point  now  under  consider:i(ion,  if  it  be  as- 
sumed to  have  been  fairly  presented  by  tlie  ruling  of  the  court." 

72  Part  of  opinion  omitted. 


Sec.  3)  MISCELLANEOUS  FACTS  897 

it  was  very  small  when  first  seen,  and  under  the  influence  of  a  strong 
northwest  wind,  which  blew  from  the  direction  of  defendant's  tracks 
towards  plaintiffs'  premises,  the  fire  spread  over  tlie  entire  plant ;  in 
the  21/2  hours  preceding  the  fire,  over  30  passenger  trains,  in  addition 
to  freight  trains  and  drill  engines,  passed  the  point  where  the  fire  oc- 
curred; there  was  a  heavy  grade  at  that  point  and  defendant's  loco- 
motives, during  the  2  weeks  previous  to  the  fire  and  2  weeks  afterward, 
were  seen  to  throw  out  sparks,  many  of  them  of  larger  size  than  could 
pass  through  a  spark  arrester  in  proper  condition  and  repair;  these 
sparks  were  hot  and  burned  holes  in  clothing,  set  fire  to  combustible 
things  on  which  they  lighted,  burned  the  persons  of  two  individuals  on 
which  they  fell,  and  caused  horses  in  plaintiffs'  yard  to  run  away. 
At  times  when  the  wind  was  from  the  direction  of  the  railroad,  they 
would  be  blown  over  to  and  light  upon  plaintiffs'  buildings,  and  in  the 
yard ;  about  5  minutes  before  the  fire  was  discovered,  a  heavy  freight 
train  went  up  the  grade  past  the  premises,  pulling  hard  and  emitting 
a  dense  smoke;  there  were  also  two  shifting  engines  at  work  on  the 
railroad  near  plaintiffs'  plant  and  in  a  lumber  yard  across  the  rail- 
road. No  witness  testified  to  seeing  a  locomotive  actually  throwing 
out  sparks  on  the  day  of  the  fire,  though  numerous  witnesses  said  they 
had  seen  them  doing  so  within  a  few  days,  some  of  them  on  the  day 
before. 

There  was  also  evidence  tending  to  show  that  the  fire  did  not  origi- 
nate in  any  other  way.     *     *     * 

After  careful  examination  of  all  the  evidence,  we  are  satisfied  that 
it  was  sufficient  to  justify  its  submission  to  the  jury,  upon  the  question 
of  the  origin  of  the  fire.  The  decision  in  the  case  of  American  Ice 
Company  v.  Penna.  R.  R.  Co.,  224  Pa.  439,  73  Atl.  873,  is  cited  as 
bearing  against  this  conclusion.  The  language  there  used  was  ap- 
propriate to  the  facts  of  that  case,  but  it  should  be  limited  to  those 
facts,  in  order  to  be  consistent  with  the  trend  of  our  other  decisions. 
The  later  case  of  Oakdale  Baking  Co.  v.  Philadelphia  &  Reading  Ry. 
Co.,  244  Pa.  463,  91  Atl.  358,  restates  what  must  be  regarded  as  the 
established  rule. 

In  the  third  assignment  of  error,  complaint  is  made  of  the  admission 
in  evidence  of  the  testimony  of  James  G.  Corcoran,  a  detective  em- 
ployed by  plaintiff's  after  the  fire  to  investigate  its  cause,  to  the  effect 
that  on  June  13,  1913,  four  days  after  the  fire,  at  3:12  p.  m.,  he  saw 
defendant's  locomotive,  No.  997,  passing  plaintiffs'  premises  and 
throwing  out  smoke  and  large  sparks,  some  of  which  fell  in  the  ice 
plant,  and  that,  on  June  25th,  he  saw  the  same  locomotive  in  defend- 
ant's shop  at  Jersey  City,  and  saw  holes  which  had  been  burned  in  the 
screen,  one  being,  as  the  witness  said,  a  2-inch,  the  other  a  3i/''rinch, 
hole. 

Under  the  decisions  above  cited  this  was  competent  evidence.  If  a 
locomotive  was  seen  throwing  out  sparks  larger  than  would  escape 
HiNT.Ev. — 57 


898  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

through  a  spark  arrester  properly  constructed  and  in  good  repair,  it 
was  proper  to  show  the  cause  of  such  emissions.  If  it  was  owing  to 
the  bad  condition  of  the  spark  arrester,  it  might  fairly  be  inferred  that 
similar  emissions  from  other  locomotives  were  due  to  the  same  cause. 
A  statement  of  the  general  principle  applicable  to  such  conditions  is 
found  in  33  Cyc.  1373,  as  follows: 

"Where  the  engine  alleged  to  have  caused  the  fire  is  not  clearly  or 
satisfactorily  identified,  evidence  as  to  the  general  condition  of  other 
engines  of  defendant  of  the  same  general  appearance  and  construction 
and  under  similar  conditions,  at  about  the  same  time  and  place,  in  re- 
spect to  throwing  sparks  or  coals  capable  of  setting  fire,  is  admissible 
as  tending  to  show  a  negligent  habit  on  the  part  of  defendant  as  to 
the  construction,  equipment,  and  management  of  its  engines  and  there- 
fore as  tending  to  show  negligence  in  that  respect  in  the  particular 
case,  and  as  tending  to  show  a  probability  that  the  fire  originated 
from  an  engine  of  defendant." 

The  same  principle  is  stated  in  3  Elliott  on  Railroads  (2d  Ed.  1907) 
§  1243,  where  it  is  said: 

"If  the  particular  engine  cannot  be  identified  evidence  is  admissible 
that  other  engines  of  the  defendant  similarly  constructed  and  operated 
set  fires  or  threw  igniting  sparks  equally  far  at  other  times,  within  a 
reasonable  period,  and  at  other  places  in  the  vicinity  along  the  fine, 
and  the  great  weight  of  authority  appears  to  be  to  the  effect  that  such 
evidence  is  admissible  without  proof  on  the  part  of  the  plaintiff  that 
the  engines  were  similarly  constructed  and  operated  and  without  con- 
fining it  to  the  exact  time  or  day  of  the  fire  in  question."     *     ♦     * 

Judgment  affirmed.''^ 


HUBBARD  v.  ANDROSCOGGIN  &  K.  R.  CO. 
(Supreme  Judicial  Court  of  Maine,  1855.     39  Me.  506.) 

On  exceptions  from  nisi  prius ;   Rice,  J.,  presiding. 

Trespass  quare  clausum. 

The  defendant's  railroad  passed  in  the  vicinity  of  the  plaintift"s 
premises ;  and  the  latter  proved  that  the  defendants  had  dug  down  and 
widened  the  wrought  part  of  the  highway,  between  their  location  on 
the  west,  and  his  tavern  house  on  the  east,  and  had  thereby  rendered 
difficult  the  access  from  the  highway  to  his  house. 

There  was  some  evidence  tending  to  show  a  breach  of  plaintiff's 

close. 

The  plaintiff  also  proved,  that  on  two  occasions  the  carriages  of 
travelers  had  been  upset  in  attempting  to  pass  from  tlie  highway  to 
his  tavern  house. 

T8  For  a  collection  of  the  fire  cases,  see  note  to  Alcott  v.  Tublic  Service 
Corp.  of  New  Jersey,  32  L.  K.  A.  (N.  S.)  10&4  (1909). 


Sec.  3)  MISCELLANEOUS  FACTS  899 

This  evidence  was  objected  to,  but  admitted  by  the  Court. 

A  verdict  was  returned  for  plaintiff. 

AppleTon,  J.  The  condition  of  the  road,  as  left  by  the  defendants 
was  a  matter  for  the  consideration  of  the  jury.  That  condition  was 
to  be  ascertained  from  the  testimony  of  witnesses.  If  the  fact,  that 
one  or  more  persons  had  been  upset  in  driving  over  the  road  in  ques- 
tion, were  to  be  regarded  as  admissible  in  evidence,  then  it  would  neces- 
sarily be  proper  to  receive  the  testimony  to  show  that  the  accidents 
which  may  have  occurred,  were  the  results  of  carelessness  or  negligence 
on  the  part  of  those  sustaining  the  injuries  of  which  complaint  is  made. 
It  would  be  equally  proper  to  show  the  number  of  carriages  which 
may  have  safely  passed  over.  But  if  proof  of  this  description  should 
be  received,  then  the  opposing  party  would  obviously  have  the  right  of 
showing,  that  in  all  of  those  instances  extraordinary  care  had  been 
used,  for  the  purpose  of  rebutting  the  inference  which  might  otherwise 
arise,  that  the  road  was  safe  and  convenient.  As  many  distinct  issues 
might  thus  be  raised  as  there  were  instances  of  carriages  passing  over 
the  road.  The  attention  of  the  jury  would  be  thus  diverted  from  the 
questions  really  in  dispute  and  directed  to  what  is  entirely  collateral. 
Neither  can  such  evidence  be  regarded  as  necessary.  The  width  of 
the  road,  the  smoothness  of  its  surface,  its  elevations  and  depressions, 
the  obstructions  remaining  thereon  and  their  size  and  position,  are  all 
susceptible  of  exact  admeasurement,  and  from  these  facts  as  disclosed 
with  more  or  less  of  accuracy,  it  will  be  for  the  jury  to  determine  how 
far  and  to  what  extent  the  condition  of  the  road  may  have  been  the 
case  of  injury  to  the  party  complaining.  The  evidence  of  carriages 
having  been  upset  in  attempting  to  pass  from  the  highway  to  the  plain- 
tiff's tavern,  was  improperly  received  and  a  new  trial  must  be  granted. 
Collins  V.  Dorchester,  6  Cush.  (Mass.)  396;  Aldrich  v.  Pelham,  1 
Gray  (Mass.)  510. 

Exceptions  sustained. 

New  trial  granted.'^* 

Tenney,  J.,  was  unable  to  be  present  at  the  hearing  and  took  no 
part  in  the  opinion. 


CROCKER  et  ux.  v.  McGREGOR. 
(Supreme  Judicial  Court  of  Maine,  18S4.     76  Me.  282,  49  Am.  Rep.  611.) 

LiBBEY,  J.  This  action  comes  before  this  court  on  exceptions  and 
motion.  It  is  for  an  injury  to  the  female  plaintiff,  alleged  to  have 
been  caused  by  the  fright  of  her  horse  by  steam  escaping  from  the  de- 
fendant's mill,  situated  on  the  margin  of  the  public  highway,  which  the 
plaintiff  alleges  was  a  public  nuisance  to  tlie  travel  over  the  way. 

The  exception  is  to  the  admission  of  evidence  produced  by  the  plain- 

T4  Accord:  Moore  v.  City  of  Kichmond,  85  Va.  538,  8  S.  E.  387  (1888),  where 
a  number  of  the  cases  are  reviewed. 


900  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

tiff.  Witnesses  for  the  plaintift"  were  permitted  to  testify  that,  when 
traveHng  by  tlie  mill  with  horses  well  broken  and  ordinarily  safe,  their 
horses  were  frightened  by  the  escaping  steam.  This  evidence  was 
limited  to  a  short  time  before  and  after  the  plaintiff's  injury,  when 
the  mill  was  in  the  same  condition  as  when  she  was  injured;  and  was 
admitted  for  the  sole  purpose  of  showing  the  capacity  of  the  escaping 
steam  to  frighten  ordinary  horses.  We  think  it  was  properly  admitted. 
The  issue  was,  whether  the  mill  as  constructed  and  used,  with  the 
steam  escaping  into  the  way,  was  a  nuisance  to  the  public  travel.  Evi- 
dence showing  that  it  naturally  frightened  ordinary  horses  when  be- 
ing driven  by  it,  was  competent  to  show  its  effect  upon  the  public 
travel,  its  character  and  its  capacity  to  do  mischief.  Its  effect  on  horses 
was  not  dependent  upon  the  acts  of  men,  which  may  be  the  result  of 
incapacity  or  negligence,  but  was  caused  by  action  of  the  inanimate 
thing  upon  an  animal  acting  from  instinct.  It  was  not  to  show  that 
other  parties  were  injured  at  the  same  place  by  the  same  cause,  and  is, 
therefore,  distinguishable  from  cases  against  towns  for  injury  from 
defects  in  a  highway,  in  which  this  court  has  held  that  evidence  of  ac- 
cidents to  others  at  the  same  place  is  inadmissible,  because  it  raised 
too  many  collateral  issues.  Here  the  only  issue  is  the  effect  of  the  sight 
and  sound  of  the  steam  upon  ordinai-y  horses,  as  tending  to  show  that 
travel  over  the  way  was  thereby  rendered  dangerous.  Hill  v.  P.  &  R. 
Railroad  Co.,  55  Me.,  439,  92  Am.  Dec.  601 ;  Burbank  v.  Bethel  Steam 
Mill  Co.,  75  Me.  373,  46  Am.  Rep.  400.  We  think  the  competency  of 
the  evidence  rests  upon  the  same  principle  as  evidence,  in  actions 
against  railroad  corporations  for  damage  by  fire,  alleged  to  ha!ve  been 
set  by  coals  or  sparks  from  a  passing  locomotive,  that  the  same  loco- 
motive, or  others  similarly  constructed  and  used,  have  emitted  sparks 
and  coals,  and  set  fire  at  other  places  and  on  other  occasions.  It  tends 
to  show  the  capacity  of  the  inanimate  thing  to  do  the  mischief  com- 
plained of.  Grand  Trunk  R.  Co.  v.  Richardson,  91  U.  S.  454,  23  L.  Ed. 
356;    Whitney  v.  Inhabitants  of  Leominster,  136  Mass.  25,  17  Rep. 

153. 

We  have  carefully  examined  the  evidence  reported,  upon  which 
the  motion  to  set  aside  the  verdict  is  based,  and  while  we  think  the 
verdict  might  properly  have  been  for  the  defendant,  still  there  is  suffi- 
cient in  favor  of  the  plaintiff,  if  the  jury  believe  it,  to  authorize  the 
verdict  for  her.  We  cannot  say  that  the  verdict  is  so  clearly  wrong 
as  to  require  the  court  to  set  it  aside. 

Exceptions  and  motion  overruled.^' 

7sOn  tho  objection  that  such  evidence  Involves  collaternl  Issues  as  to  the 
gentleness  of  the  other  horses,  see  House  v.  Metealf,  27  Conn.  G31  (1S58).  For 
a  collection  of  the  cases,  see  note  In  .'{2  L.  R.  A.  (N.  S.)  ll.W. 

Tho  insuniciency  of  a  cattle  guard  may  he  shown  by  the  fact  that  other 
aiiiiiijils  i)assod  over  It  O'Maru  v.  Kcwtou  &  N.  W.  Ky.  Co.,  1-10  Iowa,  100, 
lis  N.  W.  .377  (1008). 


Sec.  3)  MISCELLANEOUS  FACTS  901 


SHEA  V.  GLENDALE  ELASTIC  FABRICS  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1894.     162  Mass.  463,  38  N.  E. 

1123.) 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  lead  poison- 
ing from  inhaling  dust  containing  white  lead,  coming  from  the  rubber 
thread  on  which  he  worked  in  the  defendant's  mill. 

At  the  trial  in  the  Superior  Court,  before  Mason,  C.  J.,  the  jury 
returned  a  verdict  for  the  plaintiff;  and  the  defendant  alleged  ex- 
ceptions.    The  material  facts  appear  in  the  opinion. 

K.NOWLTON,  J.  The  only  exception  in  this  case  was  to  the  admis- 
sion of  certain  testimony  on  the  question  whether  the  plaintiff's  ill- 
ness was  caused  by  lead  poisoning  from  inhaling  dust  containing  white 
lead  coming  from  the  rubber  thread  on  which  he  worked  in  the  de- 
fendant's mill,  or  whether  it  arose  from  other  causes.  This  question 
may  be  divided  into  two  branches :  First,  the  inquiry  whether  the 
defendant's  mill  was  a  place  in  which  one  would  be  likely  or  liable 
to  be  poisoned  by  inhaling  lead  in  the  form  of  dust ;  and,  secondly,  if 
so,  whether  the  plaintiff  was  so  poisoned.  The  plaintiff  was  allowed 
to  introduce  evidence  to  show  that  other  persons  who  worked  at  the 
same  time  in  the  same  room  in  the  defendant's  mill,  and  under  similar 
conditions,  were  ill  from  lead  poisoning,  and  that  other  persons  who 
worked  there  imder  similar  conditions  a  few  months  before  and  a  few 
montlis  after  were  also  ill  from  the  same  cause.  There  was  also  evi- 
dence from  a  physician,  who  could  not  fix  the  time  exactly,  that  he  had 
a  number  of  like  cases  in  patients  coming  from  the  same  room  of  the 
defendant's  mill.  One  Wood  was  permitted  to  testify  that  after 
working  in  this  mill  31/2  or  4  months,  a  short  time  before  the  plaintiff 
was  there,  he  was  ill,  and  had  the  same  symptoms.  All  this  testimon}^ 
was  introduced  subject  to  the  same  general  exception  of  the  defendant. 

The  question  in  dispute  was  whetlier  there  was  an  impalpable  poison 
in  the  atmosphere  of  the  defendant's  mill,  which  would  be  likely  to 
have  a  certain  effect  upon  the  human  body.  The  most  natural  way  of 
obtaining  the  true  answer  to  tlie  question  was  by  inquiring  what  eft'ects, 
if  any,  had  been  produced  upon  persons  accustomed  to  breathe  this 
atmosphere.  The  conditions  under  which  the  different  persons  in  the 
room  were  exposed  were  similar,  and,  so  far  as  that  factor  in  the  prob- 
lem is  concerned,  we  should  expect  precisely  the  same  effect.  These 
persons  had  bodies  similar  in  form  and  structure,  with  the  same  or- 
gans, governed  by  the  same  laws,  and  with  like  susceptibilities.  Of 
course  there  were  diversities  in  their  previous  experiences,  and  in 
their  condition  outside  of  the  mill,  and  on  that  account  the  effects  upon 
the  different  persons  might  differ  slightly.  But,  so  far  as  appears, 
the  symptoms  of  their  illness  were  so  distinctive  and  peculiar  as  to 
point  almost  conclusively  to  the  same  cause.     We  are  of  opinion  that 


902  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

this  evidence  tended  to  show  that  there  was  exposure  in  the  defendant's 
mill  which  caused  the  same  illness  in  them  all.  There  was  undoubtedly 
evidence  in  regard  to  the  symptoms  and  nature  of  the  plaintiff's  ill- 
ness which  is  not  reported  on  the  bill  of  exceptions,  all  of  which,  pre- 
sumably, was  considered  by  the  presiding  justice  in  determining  wheth- 
er the  evidence  should  be  admitted. 

In  deciding  questions  of  this  kind  much  depends  on  the  circumstances 
of  each  particular  case,  and  much  is  therefore  left  to  the  discretion  of 
the  judge.  To  express  this  conclusion  in  another  way:  whenever 
the  competency  of  evidence  depends  on  the  view  to  be  taken  of  any 
doubtful  question  of  fact  which  appears  of  record,  or  on  facts  and 
evidence  not  reported,  this  court  will  not  attempt  to  revise  the  decision 
of  the  trial  judge.  Com.  v.  Gray,  129  Mass.  474,  y?  Am.  Rep.  378; 
Hunt  V.  Gaslight  Co.,  8  Allen,  169-171,  85  Am.  Dec.  697;  Robinson 
V.  Railroad  Co.,  7  Gray,  92-95.  In  Baxter  v.  Doe,  142  Mass.  558, 
8  N.  E.  415,  which  was  an  action  for  damages  against  the  owner  of 
a  vessel  for  neglect  to  furnish  proper  food  to  a  sailor,  evidence  that 
other  members  of  the  crew,  exposed  to  similar  conditions,  were  sick 
at  about  the  same  time,  was  held  to  be  competent.  Hunt  v.  Gaslight 
Co.,  8  Allen,  169,  85  Am.  Dec.  697,  and  1  Allen,  343,  was  an  action  for 
negligently  suffering  gas  to  escape  into  a  house  occupied  by  the 
plaintiff,  whereby  he  was  made  sick;  and  it  was  decided  that  the 
sickness  of  other  persons  in  the  same  house,  exposed  to  the  same  con- 
ditions, might  be  introduced  by  the  plaintiff.  Similar  principles  were 
involved  in  the  judgments  in  Hodgkins  v.  Chappell,  128  Mass.  197,  in 
Brierly  v.  Davol  Mills.  128  Mass.  291,  and  in  Reeve  v.  Dennett,  145 
Mass.  23,  11  N.  E.  938.  See,  also,  Crocker  v.  McGregor,  76  Me. 
282,  49  Am.  Rep.  611 ;  Boyce  v.  Railroad  Co.,  43  N.  H.  627;  Darling 
V.  Westmoreland,  52  N.  H.  401,  13  Am.  Rep.  55;  Cleaveland  v.  Rail- 
road Co.,  42  Vt.  449;  House  v.  Metcalf,  27  Conn.  631 ;  Field  v.  Rail- 
road Co.,  32  N.  Y.  339;  Railroad  Co.  v.  Richardson,  91  U.  S.  454, 
23  L.  Ed.  356;  District  of  Columbia  v.  Armes,  107  U.  S.  519-524,  2 
Sup.  Ct.  840,  27  L.  Ed.  618;  Brown  v.  Railway  Co.,  22  Q.  B.  Div. 
391-393. 

The  objection  that  such  testimony  is  likely  to  lead  into  collateral  in- 
quiries in  order  to  establish  its  force  or  to  show  its  weakness  is  one 
that  may  be  made  to  almost  all  circumstantial  evidence,  and  which  ad- 
dresses itself  to  the  sound  discretion  of  the  court.  If  it  seems  probable 
that  a  line  of  inquiry  will  lead  into  side  issues  not  anticipated  by  the 
parties,  and  which  will  be  likely  to  distract  and  confuse  the  jury,  and 
imreasonably  protract  the  trial,  the  questions  should  be  excluded ;  but 
if,  on  proofs  of  identity  or  likeness  of  conditions,  a  fact  will  have  im- 
portant probative  force,  it  should  not  be  excluded  if  its  relation  to  the 
case  can  easily  be  shown.  It  must  be  assumed  in  this  case,  in  the  ab- 
sence of  anything  to  show  the  contrary,  that  there  was  no  great  prac- 
tical difficulty  in  presenting  and  considering  the  evidence  which  was 


Sec.  3)  MISCELLANEOUS  FACTS  903 

objected  to,  and  that  the  presiding  justice  found  that  the  similarity 
of  conditions  was  so  clearly  and  so  easily  shown  as  to  made  the  testi- 
mony proper. 

Exceptions  overruled. 


DISTRICT  OF  COLUMBIA  v.  ARMES. 

(Supreme  Court  of  the  United  States,  1882.    107  U.  S.  519,  2  Sup.  Ct  840,  27 

L.  Ed.  618.) 

Field,  J/'  This  was  an  action  to  recover  damages  for  injuries 
received  by  the  plaintiff's  intestate,  Du  Bose,  from  a  fall  caused  by  a 
defective  sidewalk  in  the  city  of  Washington.  In  1873  the  board  of 
public  works  of  the  city  caused  the  grade  of  the  carriage-way  of  Thir- 
teenth street,  between  F  and  G  streets,  to  be  lowered  several  feet. 
The  distance  between  tlie  curbstone  of  the  carriage-way  and  the  line 
of  the  adjacent  building  was  36  feet.  At  the  time  the  accident  to  the 
deceased  occurred,  this  portion  of  the  street — sidewalk  it  may  be 
termed,  to  designate  it  from  the  carriage-way,  although  only  a  part  of 
it  is  given  up  to  foot  passengers — was,  for  48  feet  north  of  F  street, 
lowered  in  its  whole  width  to  the  same  grade  as  the  carriage-way. 
But,  for  some  distance  beyond  that  point,  only  12  feet  of  the  sidewalk 
was  cut  down,  thus  leaving  an  abrupt  descent  of  about  2  feet  at  a 
distance  of  12  feet  from  the  curb.  At  this  descent — from  the  elevated 
to  the  lowered  part  of  the  sidewalk — there  were  3  steps,  but  the  place 
was  not  guarded  either  at  its  side  or  end.  Nothing  was  placed  to 
warn  foot  passengers  of  the  danger. 

On  the  night  of  February  21,  1877,  Dii  Bose,  a  contract  surgeon 
of  the  United  States  army,  while  walking  down  Thirteenth  street, 
towards  F  street,  fell  down  this  descent,  and,  striking  upon  his  knees, 
received  a  concussion  which  injured  his  spine  and  produced  partial 
paralysis,  resulting  in  the  impairment  of  his  mind  and  ultimately  in 
his  death,  which  occurred  since  the  trial  below.     *     *     * 

On  the  trial,  a  member  of  the  Metropolitan  police,  who  saw  the 
deceased  fall  on  the  sidewalk  and  went  to  his  assistance,  was  asked, 
after  testifying  to  the  accident,  whether,  while  he  was  on  his  beat, 
other  accidents  had  happened  at  that  place.  The  court  allowed  the 
question,  against  the  objection  of  the  city's  counsel,  for  the  purpose 
of  showing  the  condition  of  the  street,  and  the  liability  of  other  per- 
sons to  fall  there.  The  witness  answered  that  he  had  seen  persons 
stumble  over  there.  He  remembered  sending  home  in  a  hack  a  woman 
who  had  fallen  there,  and  had  seen  as  many  as  five  persons  fall  tliere. 

The  admission  of  this  testimony  is  now  urged  as  error,  the  point  of 
the  objection  being  that  it  tended  to  introduce  collateral  issues  and 
thus  mislead  the  jury  from  the  matter  directly  in  controversy.  Were 
such  the  case  the   objection  would  be  tenable,  but  no   dispute  was 

T«  Part  of  opinion  omitted. 


"904  CIRCUMSTANTIAL   EVIDENCE  (Cll.  5 

made  as  to  these  accidents,  no  question  was  raised  as  to  the  extent 
of  the  injuries  received,  no  point  was  made  upon  them,  no  recovery 
was  sought  by  reason  of  them,  nor  any  increase  of  damages.  They 
were  proved  simply  as  circumstances  which,  with  other  evidence,  tend- 
ed to  show  the  dangerous  character  of  the  sidewalk  in  its  unguarded 
condition.  The  frequency  of  accidents  at  a  particular  place  would 
seem  to  be  good  evidence  of  its  dangerous  character — at  least,  it  is 
some  evidence  to  that  effect.  Persons  are  not  wont  to  seek  such  places, 
and  do  not  willingly  fall  into  them.  Here  the  character  of  tlie  place 
was  one  of  the  subjects  of  inquiry  to  which  attention  was  called  by 
the  nature  of  the  action  and  the  pleadings,  and  the  defendant  should 
have  been  prepared  to  show  its  real  character  in  the  face  of  any  proof 
bearing  on  that  subject. 

Besides  this,  as  publicity  was  necessarily  given  to  the  accidents,  they 
also  tended  to  show  that  the  dangerous  character  of  the  locality  was 
brought  to  the  attention  ^^  of  the  city  authorities. 

In  Quinlan  v.  City  of  Utica,  11  Hun  (N.  Y.)  217,  which  was  before 
the  supreme  court  of  New  York,  in  an  action  to  recover  damages  for 
injuries  sustained  by  the  plaintiff  through  the  neglect  of  the  city  to 
repair  its  sidewalk,  he  was  allowed  to  show  that  while  it  was  out  of 
repair  other  persons  had  slipped  and  fallen  on  the  walk  where  he  was 
injured.  It  was  objected  that  the  testimony  presented  new  issues  which 
the  defendant  could  not  be  prepared  to  meet,  but  the  court  said :  "In 
one  sense  every  item  of  testimony  material  to  the  main  issue  intro- 
duces a  new  issue;  that  is  to  say,  it  calls  for  a  reply.  In  no  other 
sense  did  the  testimony  in  question  make  a  new  issue.  Its  only  im- 
portance was  that  it  bore  upon  the  main  issue,  and  all  legitimate 
testimony  bearing  upon  that  issue,  the  defendant  was  required  to  be 
prepared  for."  This  case  was  affirmed  by  the  court  of  appeals  of 
New  York,  all  the  judges  concurring,  except  one,  who  was  absent. 
74  N.  Y.  603. 

7  7McClain,  J.,  In  Potter  v.  Cave,  123  Iowa,  98,  98  N.  W.  569  (1904): 
"Throughout  the  trial,  except  in  one  instance,  the  court  consistently  sustained 
objections  to  evidence  offered  for  plaintiff  to  show  previous  accidents  on  this 
stairway  and  warnings  to  defendant  that  it  was  dangerous.  These  rulings 
were  undoubtedly  correct.  Hudson  v.  Chicago  &  N.  W.  R.  Co.,  59  Iowa,  581 
[13  N.  W.  735,  44  Am.  Rep.  692  (1882)] ;  Mathews  v.  City  of  Cedar  Rapids,  80 
Iowa,  459  [45  N.  W.  894,  20  Am.  St.  Rep.  43G  (1890)] ;  Croddy  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  91  Iowa,  598  [60  N.  W.  214  (1894)].  The  question  was  not  as 
to  whether  defendant  had  reason  to  believe  the  stairway  to  be  dangerous,  but 
whether  it  was  in  fact  maintained  in  a  dangerous  condition.  If  dangerous 
in  fact,  his  knowledge  would  be  immaterial.  But  one  witness  for  plaintiff 
was  asked  whfthor  she  had  connnniii<;ited  to  defendant,  or  any  of  his  eni- 
I)loyC'S  OT  servants  in  the  store  building,  information  with  reference  to  the 
dangerous  condition  of  the  stairway,  and  defendant's  objection  to  this  ques- 
tion as  calling  for  evidence  that  was  Incompetent  and  immaterial,  and  which 
would  not  tend  to  prove  any  material  issue  in  the  case,  was  overruled. 
WluToupon  the  witness  answered  that  she  had  given  such  informntion  to  an 
employe  of  defendant  in  the  store  about  si.v  months  before  the  accident.  Tke 
admission  of  this  testimony  was  erroneous." 


Sec.  3)  MISCELLANEOUS  FACTS  905 

In  an  action  against  the  city  of  Chicago,  to  recover  damages  resulting 
from  the  death  of  a  person  who  in  the  night  stepped  off  an  approach 
to  a  bridge  while  it  was  swinging  around  to  enable  a  vessel  to  pass,  and 
was  drowned, — it  being  alleged  that  the  accident  happened  by  reason 
of  the  neglect  of  the  city  to  supply  sufficient  lights  to  enable  persons 
to  avoid  such  dangers, — the  supreme  court  of  Illinois  held  that  it  was 
competent  for  the  plaintiff  to  prove  that  another  pefson  had,  under  the 
same  circumstances,  met  with  a  similar  accident.  City  of  Chicago  v, 
Powers,  42  111.  169,  89  Am.  Dec.  418.  To  the  objection  that  the  evi- 
dence was  inadmissible,  the  court  said: 

"The  action  was  based  upon  the  negligence  of  the  city  in  failing  to 
keep  the  bridge  properly  lighted.  If  another  person  had  met  with  a 
similar  fate  at  the  same  place,  and  from  a  like  cause,  it  would  tend  to 
show  a  knowledge  on  the  part  of  the  city  that  there  was  inattention 
on  the  part  of  their  agents  having  charge  of  the  bridge,  and  that  they 
had  failed  to  provide  proper  means  for  the  protection  of  persons  cross- 
ing on  the  bridge.  As  it  tended  to  prove  this  fact  it  was  admissible ; 
and  if  the  appellants  had  desired  to  guard  against  its  improper  applica- 
tion by  the  jury,  they  should  have  asked  an  instruction  limiting  it  to  its 
legitimate  purpose." 

Other  cases  to  the  same  general  purport  might  be  cited.  See  City 
of  Augusta  v.  Hafers,  61  Ga.  48,  34  Am.  Rep.  95 ;  House  v.  ]\Ietcalf, 
27  Conn.  631 ;  Calkins  v.  City  of  Hartford,  33  Conn.  57.  87  Am.  Dec. 
194;  Darling  v.  Westermoreland,  52  N.  H.  401,  13  Am.  Rep.  55 ;  Hill 
V.  Portland  &  R.  R.  Co.,  55  Me.  439,  92  Am.  Dec.  601 ;  Kent  v.  Town 
of  Lincoln,  32  Vt.  591 ;  City  of  Delphi  v.  Lowery,  74  Ind.  520,  39  Am. 
Rep.  98.  The  above,  however,  are  sufficient  to  sustain  the  action  of 
the  court  below  in  admitting  the  testimony  to  which  objection  was 
taken. 

Judgment  affirmed. 


FROHS  V.  CITY  OF  DUBUQUE. 
(Supreme  Court  of  Iowa,  1899.    109  Iowa,  219,  80  N.  W.  341.) 

Waterman,  J.''^  Plaintiff  was  hurt  by  falling  over  a  loose  board 
in  a  walk.  After  her  injury,  the  owner  of  the  abutting  lot  took  up  the 
old  walk,  and  laid  a  new  one.  Evidence  of  this  fact  was  received  over 
defendant's  objection.  It  is  manifest,  from  the  examination  of  the  wit- 
nesses on  this  point,  that  the  fact  mentioned  was  elicited  only  inci- 
dentally. The  circumstance  of  the  old  walk  being  taken  up  was  not 
offered  as  evidence  tending  to  establish  that  it  was  defective,  but  merely 
as  showing  how  it  came  the  witnesses  knew  the  condition  of  the 
stringers  upon  which  the  boards  were  laid.  The  court,  in  admitting 
the  evidence,  stated  that  its  scope  should  be  so  limited.    The  admission 

T8  Part  of  opinion  omitted. 


906  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

of  this  evidence  it  is  thought  is  contrary  to  the  rule  announced  in 
Cramer  v.  City  of  BurHngton,  45  Iowa,  627,  and  Hudson  v.  Railroad 
Co.,  59  Iowa,  581,  13  N.  W.  735,  44  Am.  Rep.  687,  but  we  cannot 
coincide  in  this  view.  In  the  first  of  these  cases  we  held  that  the  fact 
of  a  subsequent  change  made  in  the  walk  by  defendant  could  not  be  re- 
ceived and  considered  as  evidence  of  an  admission  of  a  previous  de- 
fect. In  the  other  case  the  decision  was  that  evidence  of  subsequent 
repairs  could  not  be  received  as  tending  to  establish  prior  negligence. 
We  are  entirely  satisfied  with  the  doctrine  announced  in  these  cases, 
and  do  not  think  the  action  of  the  court  in  the  case  at  bar  is  in  any  way 
in  conflict  with  it.  Kuhns  v.  Railway  Co.,  76  Iowa,  67-71,  40  N.  W. 
92.  It  may  be  that  the  defendant  was  entitled  to  an  instruction  limiting 
the  effect  of  the  evidence  to  the  extent  stated,  but,  as  no  such  instruc- 
tion was  asked,  the  failure  to  give  it  cannot  now  be  taken  advantage 
of.     See  the  case  last  cited. 

The  next  ground  of  complaint  is  that  evidence  was  received  relating 
to  the  original  construction  of  the  walk,  which  was  built  some  considr 
erable  time  before  the  accident  to  plaintiff.  This  testimony  was  to  the 
effect  that  the  walk  was  built  of  old  boards  and  stringers.  It  was  plain- 
tiff's claim  that  the  material  in  the  walk  was  badly  decayed,  and  that 
the  city  should  have  had  notice  of  the  defect.  This  evidence  was  not 
introduced,  as  defendant's  counsel  seem  to  think,  in  order  to  show 
negligence  in  the  original  construction,  but  only  as  bearing  upon  the 
question  of  notice  to  the  city  of  the  condition  of  decay.  For  this  pur- 
pose it  was  properly  admitted.  McConnell  v.  City  of  Osage,  80  Iowa, 
293,  45  N.  W.  550,  8  L.  R.  A.  778;  Lorig  v.  City  of  Davenport,  99 
Iowa,  479,  68  N.  W.  717. 

One  French  and  his  wife  were  witnesses,  and  they  were  allowed  to 
testify  that,  a  few  days  before  the  accident  to  plaintiff,  Mrs.  French 
tripped  upon  the  same  loose  board  of  which  complaint  is  made  in  this 
case.  It  is  insisted  that  evidence  of  other  accidents  was  not  admis- 
sible; and  this  is  correct,  where  such  evidence  is  relied  upon  as  sub- 
stantive proof  of  an  actionable  defect.  Hudson  v.  Railroad  Co.,  59 
Iowa,  581,  13  N.  W.  735,  44  Am.  Rep.  687;  Croddy  v.  Railway  Co.,  91 
Iowa,  598,  60  N.  W.  214;  Mathews  v.  City  of  Cedar  Rapids,  80  Iowa, 
459,  45  N.  W.  894,  20  Am.  St.  Rep.  436;  Langhammer  v.  City  of  Man- 
chester, 99  Iowa,  295,  68  N.  W.  688.  But  in  the  case  at  bar  the  evi- 
dence was  offered  to  show  the  existence  of  this  particular- loose  board 
in  the  walk  prior  to  plaintiff's  injury,  and  the  manner  in  which  it  was 
discovered  by  the  witnesses.  For  this  purpose  the  testimony  was 
properly  admissible. 

In  Hunt  V.  City  of  Dubuque,  96  Iowa,  314,  65  N.  W.  319,  the  ques- 
tion presented  here  was  raised,  and  we  said  upon  the  subject:  "The 
witness  was  also  permitted  to  state  that  she  had  seen  people  stumble 
at  the  defective  part  of  the  walk,  and  that  she  saw  an  old  gentleman 
stop,  anrl  push  the  board  down  with  his  cane.     The  testimony  tended 


Sec.  3)  MISCELLANEOUS  FACTS  907 

to  show  the  condition  of  the  walk,  and  was  material  for  the  purpose 
of  showing  that  the  condition  continued  until  the  accident  occurred." 
Smith  V.  City  of  Des  Moines,  84  Iowa,  685-688,  51  N.  W.  77,  also 
supports  the  ruling  of  the  trial  court  in  the  case  at  bar.  We  also  call 
attention,  in  this  connection,  to  Alberts  v.  Village  of  Vernon,  96 
Mich.  549,  55  N.  W.  1022;  Moore  v.  City  of  Kalamazoo,  109  Mich. 
176,  66  N.  W.  1089. 

Three  of  the  authorities  noted  above  as  cited  by  appellant  are  cases 
where  the  defect  complained  of  was  in  the  original  construction,  and 
in  the  other  (Croddy  v.  Railway  Co.),  which  involved  an  accident  at 
a  railway  crossing  one  element  of  the  negligence  complained  of  was 
the  excessive  speed  of  the  train.  It  is  manifest  that  in  none  of  these 
instances  does  the  same  reason  obtain  for  admitting  this  kind  of  evi- 
dence as  in  the  case  at  bar,  where  the  defect  was  caused  by  time  and 
changing  conditions,  and  notice  of  it  to  defendant  had  to  be  shown; 
and  when  also  the  evidence  related  to  it  specifically,  and  not  to  a  gen- 
eral bad  condition  of  the  walk.     *     *     * 

Judgment  affirmed. 


WOOD  WORTH  V.  DETROIT  UNITED  RY. 
(Supreme  Court  of  Michigan,  1908.    153  Mich.  108,  116  N.  W.  549.) 

Carpenter,  J.^®  About  3^2  rniles  east  of  Farmington  Junction 
defendant's  railway  crosses  the  roadbed  of  Grand  River  road  at  an 
acute  angle.  This  crossing  is  called  the  "Voleny  Smith  crossing."  As 
Rex  Woodworth,  plaintiff's  intestate,  attempted  to  drive  over  this 
crossing,  the  left  front  wheel  of  his  wagon  caught  in  a  vacant  space 
between  the  rail  and  the  planking,  his  horse  could  not  move  it,  and  a 
car  operated  by  defendant  collided  with  his  vehicle  and  killed  him. 
This  suit  was  brought  to  recover  compensation.  The  issue  was  sub- 
mitted to  a  jury,  who  rendered  a  verdict  in  plaintiff's  favor.  We  are 
asked  to  reverse  the  judgment  entered  upon  said  verdict  for  several 
reasons. 

1.  Plaintiff  was  permitted  to  prove  by  one  of  defendant's  employes, 
a  sectionman,  that  at  least  a  dozen  rigs  had  been  stuck  in  this  crossing 
in  the  same  way  as  was  that  of  plaintiff's  intestate ;  that  the  first  of 
these  occurrences  happened  about  two  years  before,  the  others  from 
time  to  time  up  to  about  a  month  before  the  disaster  in  suit,  and 
on  one  of  these  occasions  a  wagon  wheel  was  broken.  This  testi- 
mony was  received,  notwithstanding  the  circumstance  that  counsel 
for  defendant  admitted  in  open  court  that,  "whatever  the  condition 
of  that  crossing  at  the  time  in  question,  defendant  had  full  knowledge 
of  it,  and  had  full  knowledge  of  it  at  least  six  months  prior  thereto. 
We  do  not  admit  that  it  was  defective." 

7»  Part  of  opinion  of  Carpenter,  J.,  and  opinion  of  Grant,  C.  J.,  omitted. 


908  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

Defendant  relies  upon  the  case  of  Gregory  v.  Detroit  United  Rail- 
way, 138  Mich.  368,  101  N.  W.  546.  That  case  was  very  similar  to 
this,  and  we  there  decided  that  testimony  like  that  under  consideration 
was  inadmissible.  We  said:  "Evidence  was  received,  under  objec- 
tions and  exception,  to  show  prior  accidents  of  a  similar  character 
at  this  same  place.  Such  testimony  is  only  admissible  to  show  no- 
tice and  knowledge  of  the  defects.  Grand  Rapids,  etc.,  R.  Co.  v. 
Huntley,  38  Mich.  537,  31  Am.  Rep.  321 ;  Corcoran  v.  City  of  Detroit, 
95  Mich.  84,  54  N.  W.  692 ;  Alberts  v.  Village  of  Vernon,  96  Mich. 
549,  55  N.  W.  1022.  Defendant's  counsel  upon  the  trial  admitted  that 
the  condition  of  the  rails  and  street  at  this  point  was  the  same  as  it 
had  been  from  the  1st  of  December  previous.  The  sole  question, 
therefore,  was  the  condition  of  the  street,  and  whether  its  condition 
was  negligence.  Proof  of  prior  accidents  was  immaterial,  and  would 
naturally  tend  to  prejudice  the  defendant."  I  participated  in  that  de- 
cision, and  approved  the  foregoing  reasoning,  and  am  bound  to  admit 
that  I  am  as  responsible  for  it  as  if  I  had  written  it.  I  am  compelled 
now  to  say  that,  in  my  judgment,  the  decision  was  erroneous,  and  I 
think  we  should  take  this,  the  first  opportunity,  of  overruling  it. 

It  is  apparent  from  the  above  quotation  that  it  was  our  opinion 
that  testimony  of  prior  accidents  was  admissible  for  the  purpose  of 
establishing  defendant's  knowledge  of  the  condition  of  the  street,  but 
not  for  the  purpose  of  proving  negligence.  Here  is  where  I  think  we 
erred.  I  think  such  testimony  has  a  bearing  upon  the  question  of  neg- 
ligence. None  of  the  authorities  cited  in  the  opinion  in  Gregory  v.  De- 
troit United  Ry.,  supra,  touch  this  question.  None  of  the  authorities 
of  other  states  which  hold  that  testimony  of  prior  accidents  is  not  ad- 
missible have  any  bearing,  for  we  hold  it  admissible,  and  with  the  ex- 
ception of  Gregory  v.  Detroit  United  Ry.,  there  is  nothing  in  our  de- 
cisions which  indicates  that  it  is  not  admissible  for  all  legitimate  pur- 
poses. Such  testimony  has  a  legitimate  bearing  upon  the  issue  of  neg- 
ligence. 

In  this  case  the  burden  rested  upon  plaintiff  to  prove,  not  only  the 
existence  of  this  space  between  the  rail  and  the  planking,  but  also  to 
prove  that  it  was  negligent  for  the  defendant  to  leave  that  space  in  that 
condition.  In  determining  the  question  of  negligence,  it  becomes  im- 
portant to  inquire,  should  defendant  have  anticipated  that  the  wheels 
of  wagons  attempting  to  cross  its  railway  would  get  caught  in  this 
space?  Testimony  that  wagons  had  actually  been  so  caught  a  dozen 
times  in  two  years,  especially  if,  as  may  be  inferred,  these  occurrences 
were  known  to  defendant,  answers  this  question,  or  at  least  affords 
great  aid  in  rmswering  it.  In  Iloyt  v.  Jeffcrs,  30  Mich.  181,  this  court 
said :  "With  actual  notice  of  the  danger  from  this  cause  (the  throwing 
of  sparks  from  the  chimney  of  a  sawmill)  the  defendant  might  justly 
be  held  to  a  somewhat  stricter  measure  of  diligence  than  if  ignorant 
of  it,  and  to  some  extent  this  might  make  that  negligence  which  oth- 


Sec.  3)  MISCELLANEOUS  FACTS  909 

erwise  would  not  be  so."  In  Smith  v.  Sherwood  Township,  62  Mich. 
165,  28  N.  W.  806,  plaintiff  brought  suit  to  recover  for  damages  re- 
sulting from  his  horse  shying  at  a  hole  in  a  bridge.  This  court  held 
that  testimony  proving  that  other  horses  had  shied  at  this  hole  was 
properly  admitted  saying:  "The  evidence  was  therefore  competent  to 
show  the  existence  of  the  defect  for  some  time,  and  that  it  was  calcu- 
lated to  frighten  horses.  It  tended  to  show  the  dangerous  character  of 
the  hole  in  the  bridge,  and,  as  more  or  less  publicity  would  naturally 
be  given  to  such  occurrences,  it  also  tended  to  show  that  knowledge  of 
such  dangerous  character  was  brought  to  the  attention  of  the  town- 
ship authorities."  Lombar  v.  East  Tawas,  86  Mich.  14,  48  N.  W.  947 ; 
Retan  v.  Railway  Co.,  94  Mich.  146,  53  N.  W.  1094.  See,  also.  Darling 
V.  Westmoreland,  52  N.  H.  401,  13  Am.  Rep.  55;  House  v.  Metcalf, 
27  Con.  631 ;  District  of  Columbia  v.  Armes,  107  U.  S.  519,  2  Sup.  Ct. 
840,  27  L.  Ed.  618.  I  conclude,  therefore,  that  no  error  was  com- 
mitted in  receiving  the  testimony  under  consideration.  *  *  * 
Judgment  affirmed.®" 


WILLIAMS  V.  INHABITANTS  OF  WINTHROP. 

(Supreme  Judicial  Court  of  Massachusetts,  1913.     213  Mass.  oSl,  100  N.  E. 

1101.) 

Tort  for  personal  injuries  alleged  to  have  been  suffered  by  the  plain- 
tiff on  August  7,  1902,  by  reason  of  a  defect  at  or  near  the  intersection, 
of  Hutchinson  Street  and  Revere  Street,  public  ways  of  tlie  defend- 
ant, and  to  have  been  caused  by  depressions  which  caused  a  carriage 
that  the  plaintiff  was  driving  to  tip,  throwing  out  the  plaintiff.  Writ 
dated  August  18,  1902. 

In  the  Superior  Court,  the  case  was  tried  before  Harris,  J.  The 
material  facts  are  stated  in  the  opinion.  There  was  a  verdict  for  the 
plaintiff"  in  the  sum  of  $2,500.  The  defendant  alleged  exceptions, 
which,  after  the  resignation  of  Harris,  J,,  were  allowed  by  Jenney,  J. 

RuGG,  C.  J.*^  This  is  an  action  of  tort  to  recover  compensation 
for  injuries  received  through  an  alleged  defect  in  a  public  way  upon 
which  the  plaintiff  was  a  traveler. 

1.  There  was  evidence  tending  to  show  that  tlie  plaintiff'  was  an 

80  Accord:  Alcott  v.  Public  Service  Corp.  of  New  Jersey,  78  N.  J.  Law,  482, 
74  Atl.  499,  32  L.  R.  A.  (N.  S.)  10S4,  138  Am.  St.  Rep.  619  (1009).  annotated. 

Compare  Ellison,  J.,  in  Smart  v.  Kansas  City,  91  Mo.  App.  580  (1902): 
"  *  *  *  But  in  cases  like  this  and  the  Goble  Case,  the  question  is  not  so 
much  whether  a  defect  is  such  as  that  one  could  fall  over  it,  as  it  is  whether 
in  the  particular  instance  complained  of,  the  injured  party  would  have  fallen 
over  it  if  exercising  ordinary  care  in  the  particular  circumstances  in  which 
he  was  placed.  The  fact  that  a  man  falls  on  a  sidewalk  shows  that  he  can 
fall  there,  but  it  does  not  show  any  of  several  other  conditions  necessary  to 
make  a  case  against  the  municipality.  It  thus  leads  to  an  investigation  of  a 
number  of  collateral  issues  which  should,  when  possible,  be  avoided." 

8  1  Part  of  opinion  omitted. 


910  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

experienced  driver,  and  that  as  she  turned  her  horse  from  one  street 
to  another  she  was  looking  at  the  street  ahead,  and  saw  nothing  about 
the  surface  of  tlie  street  to  indicate  a  defect.  It  was  for  the  jury  to 
determine,  upon  this  evidence  and  upon  all  the  circumstances,  as  men 
of  common  experience,  whether  the  plaintiff  was  in  the  exercise  of 
due  care.  Thompson  v.  Bolton,  197  Mass.  311,  83  N.  E.  1089;  Stoli- 
ker  V.  Boston,  204  Mass.  522,  534,  90  N.  E.  927;  Cutting  v.  Shel- 
burne,  193  Mass.  1,  78  N.  E.  752. 

2.  There  was  evidence  tending  to  show  that  there  were  two  de- 
pressions in  the  street  described  by  some  witnesses  as  holes,  one  of 
which  was  six  or  more  inches  deep,  with  a  mound  between.  It  was 
for  the  jury  to  say  whether  this  was  a  defect,  taking  into  account 
the  season  of  the  year,  precedent  weather  conditions,  the  amount  of 
travel  upon  the  street,  and  all  the  other  attendant  conditions.     *     *     * 

A  witness  who  lived  near  the  place  of  accident  called  by  the  plain- 
tiff was  permitted  to  testify,  against  the  objection  and  exception  of 
the  defendant,  that  between  the  day  of  the  accident  and  the  preceding 
Sunday  she  observed  that  "if  an  express  wagon  or  grocery  team  would 
come  that  way  they  would  always  go  down  and  jump  up  and  go  down 
again,  and  some  came  around  with  on-e  wheel  in  the  air."  The 
judge  admitted  this  as  tending  to  prove  notice  to  the  defendant.  It 
is  plain  that  such  evidence  is  not  admissible  for  the  purpose  of  showing 
a  defect  in  the  way.  This  has  been  decided  too  many  times  to  re- 
quire more  than  a  reference  to  one  or  two  authorities.  Collins  v. 
Dorchester,  6  Cush.  396;  Marvin  v.  New  Bedford,  158  Mass.  464,  33 
X.  E.  605.  The  question  of  difficulty  is,  w^as  it  admissible  on  the  is- 
sue whether  the  defendant  "had  or  by  the  exercise  of  proper  care  and 
diligence  might  have  had  reasonable  notice  of  the  defect  or  want  of 
repair"  (R.  L.  c.  51,  §  18)  in  the  way.  Generally  in  this  common- 
wealth evidence  of  this  character  has  been  excluded.  We  are  aware 
of  no  instance  heretofore  in  which  it  has  been  admitted  against  objec- 
tion. In  Yore  v.  Newton,  194  Mass.  250,  80  N.  E.  472,  evidence  of 
like  character  was  held  to  have  been  excluded  properly  and  it  was  said 
that  it  might  have  been  done  in  the  exercise  of  judicial  discretion.  But 
that  case  is  no  authority  for  the  proposition  that  such  evidence  is 
competent  or  that  it  may  be  admitted  under  any  circumstances. 

Such  evidence  has  been  held  in  other  cases  to  have  been  properly 
rejected,  on  the  ground  of  raising  collateral  issues.  Merrill  v.  Brad- 
ford, 110  Mass.  505;  Blair  v.  Pelham,  118  Mass.  420.  In  Kidder 
V.  Dunstable,  11  Gray,  342,  it  was  said:  "In  an  action  for  injury  sus- 
tained in  a  highway  by  reason  of  an  alleged  defect  therein  evidence  is 
not  admissible,  either  that  a  person  not  a  party  to  the  action  has  receiv- 
ed an  injury  at  the  same  place  or  has  safely  passed  over  it."  These 
cases  treat  the  matter  as  a  positive  rule  of  law.  Even  if  it  were  to  be 
regarded  as  matter  of  judicial  discretion,  it  would  be  unfortunate  if 
the  discretion  should  "not  be  exercised  in  the  same  way  under  the  same 
circumstances."     Sargent  v.  Mcrrimac,  196  Mass.  171,  175,  81  N.  E. 


Sec.  3)  MISCELLANEOUS  FACTS  911 

970,  971  (11  L.  R.  A.  [N.  S.]  996,  124  Am.  St.  Rep.  528).  No  hard- 
ship will  befall  a  plaintiff  because  notice  or  reasonable  ground  to  infer 
notice  to  a  municipality  of  a  defect  in  a  highway  is  commonly  sus- 
ceptible of  ready  proof  by  other  evidence.  Reed  v.  Northfield,  13 
Pick.  94,  23  Am.  Dec.  662;  Chase  v.  Lowell,  151  Mass.  425,  24  N.  E. 
212.  Under  these  circumstances,  we  think  it  better  to  adhere  to  that 
which  has  been  declared  and  understood  generally  to  be  the  law  of 
this  commonwealth,  and  hold  that  such  evidence  is  inadmissible. 
Exceptions  sustained. 


PEORIA  GASLIGHT  &  COKE  CO.  v.  PEORIA  TERMINAL  RY. 

CO. 

(Supreme  Court  of  Illinois,  1S93.    146  111.  372,  34  N.  E.  550,  21  L.  H.  A.  373.:> 

Bailey,  J.^-  This  was  a  proceeding  under  the  eminent  domain 
law,  brought  by  the  Peoria  Terminal  Railway  Company  against  the 
Peoria  Gaslight  &  Coke  Company,  to  condemn  for  right  of  way  a  por- 
tion of  the  premises  owned  and  occupied  by  the  defendant  with  its 
buildings  and  other  improvements  and  machinery,  constituting  its  gas 
works.  The  premises  of  the  defendant  consist  of  one  block  of  ground, 
bordering  upon  the  Illinois  river,  and  being  something  over  400  feet 
in  length  along  the  river,  and  about  300  feet  in  width,  and  containing 
about  three  acres.  The  land  sought  to  be  condemned  consists  of  a 
strip  50  feet  in  width,  along  the  margin  of  the  river,  and  running  the 
whole  length  of  the  defendant's  premises,  and  containing  48-100  of 
an  acre.  At  the  trial  the  jury,  after  hearing  the  evidence  and  viewing 
the  premises,  rendered  their  verdict,  fixing  the  compensation  to  be  paid 
the  defendant  for  the  strip  of  land  taken  at  $4,550,  and  assessing  the 
damages  to  the  land  not  taken  at  $2,750,  making  the  total  of  the  com- 
pensation and  damages  $7,300.  Upon  this  verdict  judgment  was  enter- 
ed in  the  usual  form,  and  the  defendant  brings  tlie  record  to  this  court 
by  appeal. 

As  furnishing  evidence  of  the  value  of  the  land  proposed  to  be  taken, 
the  petitioner  was  permitted,  against  the  objection  and  exception  of  the 
defendant,  to  prove  by  several  witnesses  what  the  petitioner  had  paid 
other  property  owners  for  right  of  way  along  the  same  line,  and  the 
decision  of  the  court  admitting  that  evidence  is  assigned  for  error. 
The  propriety,  in  cases  of  this  character,  of  admitting  proof  of  sales  of 
other  similar  property,  made  at  or  about  the  same  time,  though  doubted, 
and  even  denied,  in  some  of  the  states,  seems  to  us  to  be  supported  by 
the  better  reason,  as  well  as  by  the  greater  weight  of  authority.^^ 

82  Part  of  opinion  omitted. 

83  Accord:  Markowitz  v.  Kansas  City,  125  Mo.  485,  28  S.  W.  642,  46  Am.  St. 
Rep.  498  (1894) ;  Smith  v.  Sanitary  District  of  Chicago,  200  III.  453,  103  N.  E. 
254  (1913). 


912  CIRCUMSTANTIAL   EVIDENCE  (Ch.  5 

Lewis,  Em.  Dom.  §  443,  and  cases  cited  in  notes.  In  this  state  its  ad- 
missibility has  been  expressly  affirmed  in  a  few  cases,  and  indirectly 
recognized  in  many  others.  Thus,  in  Provision  Co.  v.  City  of  Chicago, 
111  111.  651,  a  witness  was  permitted  to  give  evidence  as  to  the  price 
at  which  another  lot  had  been  sold,  without  testifying  as  to  the  value 
of  either  that  lot  or  of  the  one  sought  to  be  condemned,  and  it  was  held 
that  there  was  no  error  in  the  admission  of  the  evidence,  it  being  said : 
"From  the  very  necessities  of  the  case,  actual  sales  of  property  in  the 
vicinity,  and  near  the  time,  are  competent  evidence  so  far  as  they  go. 
On  cross-examination,  all  circumstances  can  be  drawn  out  showing  that 
the  given  sale  fails,  and  how  much,  of  being  a  fair  criterion  of  val- 


ue."'' 


The  theory  upon  which  evidence  of  sales  of  other  similar  property 
in  the  neighborhood  at  about  the  same  time  is  held  to  be  admissible  is 
tliat  it  tends  to  show  the  fair  market  value  of  the  property  sought  to  be 
condemned ;  and  it  cannot  be  doubted  that  such  sales,  when  made  in 
the  free  and  open  market,  where  a  fair  opportunity  for  competition 
has  existed,  become  material  and  often  very  important  factors  in  de- 
termining the  value  of  the  particular  property  in  question.  But  it  seems 
very  clear  that,  to  have  that  tendency,  they  must  have  been  rnade  un- 
der circumstances  where  they  are  not  compulsory,  and  where  the  ven- 
dor is  not  compelled  to  sell  at  all  events,  but  is  at  liberty  to  invite  com- 
petition among  those  desiring  to  become  purchasers.  Accordingly, 
among  the  various  decisions  in  this  or  other  states  to  which  our  at- 
tention has  been  called,  or  which  our  own  researches  have  discovered, 
we  find  none  in  which  the  price  paid  at, a  forced  or  compulsory  sale 
has  been  admitted  as  competent  evidence  of  value. 

On  the  other  hand,  in  Dietrichs  v.  Railroad  Co.,  12  Neb.  225,  10 
N.  W.  718,  evidence  of  the  prJce  paid  at  an  administrator's  sale  for 
the  very  lots  sought  to  be  condemned  was  held  to  be  incompetent.  In 
discussing  this  subject,  Mr.  Lewis,  in  his  treatise  on  the  Law  of  Emi- 
nent Domain,  says :  "What  the  party  condemning  has  paid  for  other 
property  is  incompetent.  Such  sales  are  not  a  fair  criterion  of  value, 
for  the  reason  that  they  are  in  the  nature  of  a  compromise.  They  are 
affected  by  an  element  which  does  not  enter  into  similar  transactions 
made  in  the  ordinary'  course  of  business.  The  one  party  may  force  a 
sale  at  such  price  as  may  be  fixed  by  the  tribunal  appointed  by  law. 
In  most  cases  the  same  party  must  have  the  particular  property,  even 
if  it  costs  more  than  its  true  value.  The  fear  of  one  party  of  the 
other  to  take  the  risk  of  legal  proceedings  ordinarily  results  in  the  one 
party  paying  more,  or  the  other  taking  less,  than  is  considered  to  be 
the  fair  market  value  of  the  property.  For  these  reasons,  such  sales 
would  not  seem  to  be  competent  evidence  of  value  in  any  case,  whether 
in  a  proceeding  by  the  same  condemning  party  or  otherwise."  Lewis, 
Em.  Dom.  §  447. 


Sec.  3)  MISCELLANEOUS  FACTS  913 

The  text  of  the  learned  author  here  quoted  seems  to  be  well  sup- 
ported by  the  authorities/*     *     *     * 

We  are  referred  to  no  decision  in  this  state  in  which  the  opposite 
view  as  to  the  admissibility  of  evidence  of  the  character  of  that  now 
under  consideration  has  been  taken.  In  fact,  so  far  as  we  are  aware, 
the  question  has  never  been  passed  upon  by  this  court,  and  we  are  there- 
fore at  liberty  to  adopt  the  rule  which  seems  to  us  to  be  most  fully 
supported  by  reason  and  authority.  Acting  upon  that  principle,  we 
are  disposed  to  concur  in  the  rule  supported  by  the  authorities  above 
cited,  and  to  hold  that  the  evidence  of  the  prices  paid  by  the  railroad 
company  to  other  property  owners  for  right  of  way  along  its  line  was 
incompetent,  and  was  improperly  admitted.     *     *     * 

Judgment  reversed.^ '^ 


ROBINSON  v.  NEW  YORK  ELEVATED  R.  CO.  et  al. 

(Court  of  Appeals  of  New  York,  1903.     175  N.  Y.  219,  67  N.  E.  431.) 

BartlETT,  J.*°  This  is  the  usual  elevated  railroad  case,  to  recover 
fee  and  rental  damages,  and,  under  the  unanimous  decision,  the  de- 
fendant railway  companies  are  confined  to  the  argument  of  legal  errors 
duly  raised  by  exceptions. 

The  counsel  for  the  appellants  insists  that  the  learned  trial  judge  ad- 
mitted, over  objection  and  exception,  evidence  regarding  sales  and 
rentals  of  specific  pieces  of  property  on  Pearl  street,  other  than  the 
premises  in  suit  in  violation  of  the  rule  laid  down  by  this  court  in  the 
case  of  Jamieson  v.  Kings  County  Elevated  Railway  Co.,  147  N.  Y. 
322,  325,  41  N.  E.  693.  Judge  Finch  there  said:  "The  plaintifl? 
sought  to  prove  the  evil  effect  of  the  road  in  diminishing  values  by  the 
process  of  calling  the  owners  of  property  in  the  vicinity,  and  proving  in 
each  case  what  the  particular  premises  owned  by  the  witness  rented  for 
before  the  road  was  built,  and  what  thereafter.  There  were  objections 
and  exceptions.  Such  a  process  is  not  permissible.  Each  piece  of  evi- 
dence raised  a  collateral  issue  (Gouge  v.  Roberts,  53  N.  Y.  619),  and 
left  the  court  to  try  a  dozen  issues  over  as  many  separate  parcels  of 

8  1  In  the  omitted  passage  the  court  reviewed  Kelliher  v.  Miller,  97  Mass.  71 
(1867) ;  Fall  .River  Print  Works  v.  City  of  Fall  River,  110  Mass.  428  (1S72) ; 
Cobb  V.  City  of  Boston,  112  Mass.  181  (1S73) ;  Presbrey  v.  Old  Colony  &  n! 
Ry.  Co.,  103  Mass.  1  (1S69) ;  Donovan  v.  City  of  Springfield,  12'.  Mass.  371 
(1878) ;  Tyler  v.  Mather,  9  Gray,  183  (18.57) ;  Howard  v.  City  of  Providence, 
fi  R.  I.  514  a8G0);  City  of  Springfield  v.  Schmook,  68  Mo.  394  (1S7S) ; 
Brunswick  &  A.  R.  Co.  v.  McLaren,  47  Ga.  546  (1873) ;  Amoskeag  Mfg.  Co  v 
Worcester,  60  N.  H.  522  (1881). 

86  Contra:    Curley  v.  Mayor,  83  N.  J.  Law,  760,  85  Atl.  197,  43  L.  R.  A.  (N 
S.)  985  (1912),  annotated. 
80  Part  of  opinion  omitted, 
HiNT.Ev. — 58 


914  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

property.  We  have  held  such  a  mode  of  proof  to  be  inadmissible. 
Huntington  v.  AttriU,  118  N.  Y.  365,  23  N.  E.  544;  Matter  of  Thomp- 
son, 127  N.  Y.  463,  28  N.  E.  389,  14  L.  R.  A.  52.  The  elevated  railroad 
cases  in  this  court,  to  which  the  plaintiff  refers  us,  give  no  warrant 
for  such  a  mode  of  proof,  but  indicate  that  the  general  course  and 
current  of  values  must  be  shown  by  persons  competent  to  speak,  leav- 
ing to  a  cross-examination  any  inquiry  into  specific  instances,  if  such 
be  deemed  essential.  Almost  all  the  evidence  of  depreciation  was  of 
the  erroneous  character,  and  we  cannot  say  that  it  may  not  have  worked 
harm  to  the  defendant."  The  rule  thus  laid  down  was  followed  in 
Witmark  v.  New  York  Elevated  R.  Co.,  149  N.  Y.  393,  44  N.  E.  78, 
and  other  cases. 

The  course  of  procedure  under  this  rule  may  be  thus  briefly  stated : 
Plaintiff,  having  called  as  a  witness  an  expert,  is  permitted  to  show 
the  general  course  and  current  of  values  in  the  immediate  vicinity, 
leaving  to  a  cross-examination  any  inquiry  into  specific  instances,  if 
such  be  deemed  essential ;  the  reason  for  the  rule  being  that  to  permit 
evidence  of  the  rental  or  fee  value  of  other  premises  would  raise  in 
each  case  a  collateral  issue  to  be  tried.  When  the  plaintiff's  expert  wit- 
ness is  cross-examined  by  the  defendant  as  to  specific  instances,  it  is 
competent,  upon  a  redirect  examination,  for  the  plaintiff  to  make  such 
full  inquiry  as  he  may  be  advised  as  to  each  one  of  the  specific  instances 
brought  out  on  cross-examination.  In  the  case  at  bar  the  plaintiffs 
swore  their  expert  and  conducted  the  direct  examination  in  compliance 
with  the  rule.  On  cross-examination  the  defendants  made  inquiry  as 
to  about  12  pieces  of  other  property  in  the  immediate  neighborhood. 
On  redirect  examination  the  plaintiff's  examined  the  witness,  over  the 
objection  and  exception  of  the  defendants,  in  regard  to  the  fee  or  rent- 
al value  of  some  16  additional  pieces  of  property  in  the  vicinity  of  the 
premises  in  suit.  We  are  of  opinion  that  the  introduction  of  evidence 
by  the  plaintiffs  in  regard  to  these  additional  pieces  of  property  in  the 
immediate  neighborhood  was  in  direct  violation  of  the  rule  we  have 
discussed.  It  was  for  the  plaintiffs  to  prove  the  general  course  of 
values,  and  for  the  defendants  to  give  evidence  of  specific  instances. 
If  it  be  true  that  such  evidence  on  the  part  of  the  defendants  opened  the 
door,  as  the  respondents'  counsel  claims,  for  the  introduction  of  as 
many  additional  pieces  of  property  as  they  saw  fit,  it  would  result  in 
raising  numerous  collateral  issues,  and  lead  to  the  utter  subversion  of 
the  rule  laid  down  in  the  lamieson  Case.     *     ♦     * 

Judgment  reversed. ^^ 

8  7  Followed  In  Rourke  v.  Holmes  St.  R.  Co.,  221  Mo.  46,  119  S.  W.  1094,  133 
Am.  St.  Kep.  408  {VM'J). 


Sec.  3)  MISCELLANEOUS  FACTS  915 


SHARP  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States.  1903.     191  U.  S.  341,  24  Sup.  Ct.  114, 

48  L.  Ed.  211.) 

The  plaintiff  in  error  has  sued  out  this  writ  for  the  purpose  of  re- 
viewing a  judgment  of  the  United  States  circuit  court  of  appeals  for 
the  third  circuit,  which  affirmed  a  judgment  of  the  district  court  of 
New  Jersey,  awarding  damages  to  plaintiff  in  error  for  the  taking  of 
certain  property  of  his  on  the  Delaware  River,  near  Fort  Mott,  in 
that  state.  The  award  of  the  jury  was,  in  the  opinion  of  the  plaintiff 
in  error,  entirely  inadequate  as  just  compensation  to  him  as  the  owner 
of  the  land  for  its  taking  by  the  government.     *     *     * 

Mr.  Justice  Peckham,*^  after  making  the  foregoing  statement  of 
facts,  delivered  the  opinion  of  the  court.     *     *     * 

The  errors  assigned  and  upon  which  the  argument  was  had  in  the 
circuit  court  of  appeals  were  twelve  in  number.  They  are  in  sub- 
stance the  same  here.  The  first  seven  refer  to  the  rejection  of  evidence 
in  regard  to  offers  to  purchase  the  lands  from  the  plaintiff  in  error. 
It  was  held  by  the  trial  court,  in  response  to  the  proposal  to  give 
such  evidence,  that  the  plaintiff'  in  error  could  not  testify  to  different 
offers  he  had  received  to  purchase  the  property  for  hotel,  residential, 
or  amusement  purposes,  or  for  a  ferry,  or  a  railroad  terminal,  or 
to  lease  the  property  for  hotel  purposes. 

Upon  principle,  we  think  the  trial  court  was  right  in  rejecting  the 
evidence.  It  is,  at  most,  a  species  of  indirect  evidence  of  the  opinion 
of  the  person  making  such  offer  as  to  the  value  of  the  land.  He  may 
have  so  slight  a  knowledge  on  the  subject  as  to  render  his  opinion  of 
no  value,  and  inadmissible  for  that  reason.  He  may  have  wanted  the 
land  for  sorne  particular  purpose  disconnected  from  its  value.  Pure 
speculation  may  have  induced  it,  a  willingness  to  take  chances  that 
some  new  use  of  the  land  might,  in  the  end,  prove  profitable.  There 
is  no  opportunity  to  cross-examine  the  person  making  the  offer, 
to  show  these  various  facts.  Again,  it  is  of  a  nature  entirely  to  un- 
certain, shadowy,  and  speculative  to  form  any  solid  foundation  for 
determining  the  value  of  the  land  which  is  sought  to  be  taken  in  con- 
demnation proceedings.  If  the  offer  were  admissible,  not  only  is  it  al- 
most impossible  to  prove  (if  it  exist)  the  lack  of  good  faith  in  the  per- 
son making  the  offer,  but  the  circumstances  of  the  parties  at  the  time 
the  offer  was  made  as  bearing  upon  the  value  of  such  offer  may  be 
very  difficult,  if  not  almost  impossible,  to  show.  To  be  of  the  slightest 
value  as  evidence  in  any  court,  an  offer  must,  of  course,  be  an  honest 
offer,  made  by  an  individual  capable  of  forming  a  fair  and  intelligent 
judgment,  really  desirous  of  purchasing,  entirely  able  to  do  so,  and  to 

88  Statement  condensed  and  part  of  opinion  omitted. 


916  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

give  the  amount  of  money  mentioned  in  the  offer,  for  otherwise  the 
offer  would  be  but  a  vain  thing.  Whether  the  owner  himself,  while 
declining  the  oft'er,  really  believed  in  the  good  faith  of  the  party  mak- 
ing it,  and  in  his  ability  and  desire  to  pay  the  amount  oft'ered,  if  such 
offer  should  be  accepted,  or  whether  the  oft'er  was  regarded  as  a  mere 
idle  remark,  not  intended  for  acceptance,  would  also  be  material  upon 
the  question  of  the  bona  fides  of  the  refusal. 

Oral  and  not  binding  offers  are  so  easily  made  and  refused  in  a  mere 
passing  conversation,  and  under  circumstances  involving  no  responsi- 
bility on  either  side,  as  to  cast  no  light  upon  the  question  of  value.  It 
is  frequently  very  difficult  to  show  precisely  the  situation  under  which 
these  offers  were  made.  In  our  judgment  they  do  not  tend  to  show 
value,  and  they  are  unsatisfactory,  easy  of  fabrication,  and  even  dan- 
gerous in  their  character  as  evidence  upon  this  subject.  Especially  is 
this  the  case  when  the  offers  are  proved  only  by  the  party  to  whom 
they  are  alleged  to  have  been  made,  and  not  by  the  party  making  them. 
There  is  no  chance  to  cross-examine  as  to  the  circumstances  of  the 
party  making  the  off'er  in  regard  to  good  faith,  etc.  Evidence  of  this 
character  is  entirely  different  from  evidence  as  to  the  price  oft"ered  and 
accepted  or  rejected  for  articles  which  have  a  known  and  ready  sale 
in  the  market.  The  price  at  the  stock  exchange  of  shares  of  stock  in 
corporations  which  are  there  offered  for  sale  or  dealt  in  is  some  evi- 
dence of  the  value  of  such  shares.  So  evidence  of  prices  current 
among  dealers  in  those  commodities  which  are  the  subject  of  frequent 
sales  by  them  would  also  be  proper  to  show  value.  This  evidence  is 
unlike  that  of  off'crs  to  purchase  real  estate,  and  aff'ords  no  ground 
for  the  admissibihty  of  the  latter. 

A  reference  to  the  authorities  shows  them  to  be  almost  unanimous 
against  receiving  evidence  of  this  kind.  Counsel  have  cited  many 
cases  on  this  subject  and  they  are  contained  in  the  margin. ^'^  Most 
of  them  are  clearly  against  the  admissibility  of  the  evidence,  while 

89  Fowler  v.  Middlesex  County  Cora'rs,  6  Allen  (Mass.)  92,  96  (1863) ;  Wood 
V.  Firemen's  Fire  Ins.  Co.,  120  Mass.  810.  319  (1S79) ;  Thompson  v.  Boston. 
148  Mass.  3ST,  19  N.  E.  406  (188^)) ;  Anthony  v.  New  York,  P.  &  B.  JEt.  Co.,  102 
Muss.  60,  37  N.  E.  780  (1894) ;  Cochrane  v.  Com.,  175  Mass.  299,  56  N.  E.  6l6, 
78  Am.  St.  Rep.  491  (1900);  Hine  v.  Manhattan  R.  Co.,  132  N.  Y.  477,  15  L.  R. 
A.  591,  30  N.  E.  985  (1892) ;  Keller  v.  Paine,  34  Ihm  (N.  Y.)  167  (1884) ;  Law- 
rence V.  Metropolitan  Kiev.  R.  Co.,  8  N.  Y.  Supp.  326  (1890) ;  Youni?  v.  At- 
wood,  5  llun,  234  (1875) ;  Parke  v.  Seattle,  8  Wash.  78,  35  Pac.  594  (1S94) ; 
Santa  Ana  v.  Ilarlin,  99  Cal.  538,  34  Pac.  224  (1893);  St.  Joseph  &  D.  C.  R. 
Co.  V.  Orr,  8  Kan.  419,  424  (1871);  Minnesota  Belt  Line  R.  &  Transfer  Co. 
V.  Gluek,  45  Minn.  403,  48  N.  W.  194  (1891) ;  Louisville,  N.  O.  &  T.  R.  Go.  v. 
Ryan,  64  Miss.  399,  8  South.  17.''.  (188(;). 

As  distint'uishcd  from  the  fjcneral  rule,  see  Wliitney  v.  Thacher,  117  Mass. 
523  (1875);  Cliqnot's  Champagne,  3  Wall.  114,  141,  sul)  nom.  125  Baskets  of 
Cliampaffne  v.  United  States,  18  L.  Ed.  110.  120  (1805);  Chnffoe  v.  United 
States,  18  Wall.  510,  512,  21  L.  Ed.  90S,  912  (187:'.),  explainin;;  Cliqnot's  Cham- 
pagne; Muller  V.  Southern  Pacific  Branch  R.  Co.,  83  Cal.  240,  23  Pac.  2(!5 
(ISIKJ),  overruled  by  Santa  Ana  v.  Ilarlin,  99  Cal.  538,  34  Pac.  224  (1893); 
Harri-son  v.  Glover,  72  N.  Y.  451  (1878). 


Sec.  4)  PHYSICAL  OBJECTS  917 

some,  which  at  first  sight  might  be  regarded  as  exceptional,  will  be 
found  upon  closer  examination  to  recognize  the  general  rule  as  al- 
ready stated.     *     *     * 
Judgment  affirmed. 


SECTION  4.— PHYSICAL  OBJECTS  »• 


HOOK  V.  PAGEE  et  al. 
(Supreme  Court  of  Appeals  of  Virginia,  1811.    2  Munf.  379.) 

In  a  suit  for  freedom,  the  jury  returned  a  verdict  in  the  following 
words:  "We  of  the  jury  find  that  the  plaintiff  Nanny  Pagee  was 
brought  into  the  commonwealth  of  Virginia  from  the  state  of  North 
Carolina,  by  Thomas  Jones,  subsequent  to  the  fifth  of  October,  1778; 
that  if  the  said  plaintiff  was  a  slave,  it  doth  not  appear  to  the  jury 
that  the  said  Thomas  Jones  did  comply  with  the  provisions  of  the 
act,  entitled  'An  act  for  preventing  the  further  importation  of  slaves.' 
(a)  We  of  the  jury  also  find,  from  inspection,  that  the  said  plaintiff' 
Nanny  Pagee  is  a  white  woman.  We  of  the  jury,  therefore,  find  that 
the  plaintiffs  are  free  persons  and  not  slaves;  and  we  find  for  them 
one  penny  damages." 

Judgment  for  the  plaintiffs,  and  appeal.     *     *     * 

CoALTER,  J.®^  *  *  *  But.  if  I  am  wrong  as  to  this,  and  if  the 
first  point  is  found  under  circumstances  that  would  require  another 
trial,  if  that  were  the  only  point  on  which  the  plaintiffs  could  suc- 
ceed, yet  I  am  clear  that  there  can  be  no  objection  to  the  other  find- 
ing, to  wit,  "that  the  plaintiff'  Nanny  is  a  white  woman." 

The  jury  find  this  fact  upon  their  own  knowledge,  in  other  words, 
by  inspection.     Was  this  improper? 

The  jur)'  are  to  ascertain  the  fact  one  way  or  the  other  and  from 
evidence. 

"All  certainty  is  a  clear  and  distinct  perception;  and  all  clear  and 
distinct  perceptions  depend  upon  a  man's  own  proper  senses ;  and,  as 
all  demonstration  is  founded  on  the  view  of  a  man's  own  proper  senses, 
by  a  gradation  of  clear  and  distinct  perceptions,  so  all  probabiHty  is 

90  This  topic  might  properly  have  been  treated  as  a  separate  problem,  rath- 
er than  as  a  subdivision  of  circumstantial  evidence,  because  it  involves  a  dis- 
tinct method  of  furnishing  the  jury  with  information,  and  in  some  instances 
a  thing  produced  in  court  might  directly  establish  an  ultimate  fact  in  issue; 
but  since  m  most  instances  inspection  of  a  thing  is  used,  instead  of  a  descrip- 
tion of  it,  as  a  basis  for  some  further  inference,  and  in  general  the  questions 
that  arise  are  those  of  relevancy,  undue  prejudice,  practical  inconvenience, 
and  the  like,  it  seemed  to  the  Editor  that  it  might  fairly  be  placed  in  the 
present  chapter. 

91  Statement  condensed  and  part  of  opinion  of  Coalter,  J.,  and  opinions  of 
Cabell  and  Brooke,  JJ.,  omitted. 


918  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

founded  upon  obscure  and  indistinct  views,  or  upon  report  from  the 
sight  of  others." 

If  the  plaintiff  Nanny  had  not  been  before  the  jury,  they  must  have 
found  their  verdict  upon  the  testimony  of  others,  which  would  have 
amounted  only  to  a  probability.  But  here,  they  have  the  highest  evi- 
dence, the  evidence  of  their  own  senses;  and  upon  that  they  find  a 
verdict:  in  other  words,  the  jury  find  a  verdict  upon  their  own  knowl- 
edge. They  find  a  fact  which  makes  it  impossible  for  the  defendant 
rightfully  to  hold  this  woman  and  her  children  as  slaves;  and  they 
superadd  to  this  finding,  "that,  therefore,  they  are  free  persons,  and  not 
slaves."  Touching  the  evidence,  as  to  this  fact,  there  is  no  objection, 
or  exception.  The  defendant  introduces  witnesses  to  prove  that  she  is 
not  a  white  woman.  Those  witnesses  give  their  opinions  from  the 
evidence  of  their  senses:  no  person  proves  her  birth,  or  parentage. 
The  jury  believe  their  own  senses,  in  preference  to  the  opinions  of  the 
witnesses ;  and,  if  the  court  were  in  error  on  every  other  point,  this 
fact,  being  fairly  and  legally  found,  must  conclude  the  case. 

I  am,  therefore,  in  favour  of  affirming  the  judgment. 

Judgment  affirmed. 


MORTON  V.  FAIRBANKS. 
(Supreme  Judicial  Court  of  Massacliusetts,  1831.     11  Pick.  368.) 

This  was  an  action  on  the  case  for  a  fraud  in  the  performance  of 
a  special  contract,  alleged  to  have  been  made  by  the  defendant  with 
the  plaintiff,  to  manufacture  a  certain  quantity  of  shingles  for  the 
plaintiff.     *     *     * 

Among  other  evidence  introduced  by  the  plaintiff  to  show  a  fraud 
in  the  manufacture  and  packing  of  the  shingles,  a  trunk  full  of  what 
was  alleged  by  the  defendant  to  be  shingles  was  brought  into  court  and 
exhibited  to  the  court  and  jury.  These  were  proved  to  have  been 
taken  out  of  bunches  of  shingles  made  by  the  defendant  for  the  plain- 
tiff. Upon  inspection  of  them  the  court  considered  that  they  could  in 
no  sense  be  deemed  shingles;  that  no  prudent  person  would  ever 
think  of  using  them  as  shingles  upon  any  building;  that  they  were 
mere  chips.  The  defendant  contended  that  it  was  the  province  of  the 
jury,  and  not  of  the  court,  to  determine  the  nature  of  the  things 
brought  into  court  in  the  trunk,  and  whether  they  were  or  were  not 
to  be  considered  as  shingles.  But  the  judge  ruled  that  as  it  was  ap- 
parent by  inspection  that  they  were  not  shingles,  and  there  was  no 
doubt  about  it,  it  was  proper  that  the  court  should  decide  the  ques- 
tion.    ♦     ♦     * 

It  was  proved  that  the  shingles  were  delivered  to  the  plaintiff  in 
bunches,  that  the  outsides  of  the  bunches  appeared  well,  and  that  the 
plaintiff,  at  the  time  of  the  delivery  and  until  he  had  paid  the  de- 
fendant, had  no  knowledge  that  any  of  the  shingles  were  defective. 


Sec.  4)  PHYSICAL  OBJECTS  919 

The  jury  found  a  verdict  for  the  plaintiff. 

The  defendant  filed  exceptions  to  the  foregoing  decisions  of  the 
judge. 

Per  Curiam. ®2  ♦  *  *  The  second  exception  relates  to  the  de- 
cision of  the  judge,  that  the  articles  brought  into  court  were  not  shin- 
gles. The  defendant  contended,  tliat  whether  they  were  shingles  or 
not,  was  a  question  of  fact  for  the  jury,  and  that  his  rights  were  not  to 
be  affected  by  the  circumstance  of  the  evidence  being  more  or  less 
strong  on  that  question ;  but  it  was  ruled,  that  as  the  point  was  clear 
upon  inspection,  it  was  to  be  decided  by  the  court.  As  the  jury  would 
have  the  whole  case  before  them,  this  may  seem  to  be  a  speculative 
objection;  but  we  think  that  in  strictness  the  point  thus  decided  was 
a  question  of  fact,  and  the  jury  may  have  been  unduly  influenced, 
for  they  may  have  considered  themselves  not  at  liberty  to  find  contrary 
to  the  decision  of  the  court.     *     *     * 

Exceptions  sustained.®^ 


CLOSE  et  al.  v.  SAMM  et  al. 
(Supreme  Court  of  Iowa,  1S69.    27  Iowa,  503.) 

Action  to  recover  damages  for  flowing  water  back  upon  plaintiffs' 
mill-wheels,  premises,  etc.,  and  injury  thereby  to  his  water  power. 
The  mills  and  dams  of  the  respective  parties  are  situated  on  the  Iowa 
river,  a  short  distance  above  Iowa  City,  and  about  two  miles 
apart.     *     *     *  ^ 

The  cause  was  tried  to  a  jury,  and  a  large  amount  of  testijnony  was 
introduced  by  the  respective  parties;   and  the  jury,  by  direction  of  the 

9  2  statement  condensed  and  part  of  opinion  omitted. 

83  Compare  Kennedy,  J.,  in  Duncan  v.  Duncan,  1  Watts  (Pa.)  322  (1833): 
"It  has  been  contended  that  the  riband  inserted  in  the  parchment,  in  the 
manner  described,  was  sufficient  in  law  to  constitute  a  seal,  if  so  intended 
by  the  party;  and  that  it  ought,  therefore,  to  have  been  received  in  evi- 
dence, and  submitted  to  the  jury  as  a  matter  of  fact  to  be  decided  on  by 
them,  whether  the  riband  was  used  with  that  intent  or  not.  This  argument 
may  be  ingenious,  and,  at  first  view,  somewhat  plausible ;  but  a  moment's  re- 
flection will  show,  as  it  appears  to  me,  that  it  is  not  solid,  and  cannot  an- 
swer the  design  of  the  law  in  regard  to  seals.  I  apprehend  that  whether  an 
instrument  of  writing  be  under  seal  or  not,  is  a  question  of  law  to  be  solved 
by  the  court  from  the  inspection  of  the  instrument  itself.  It  is  highly  im- 
portant to  the  interests  of  society,  that  every  man  should  be  able  to  determine 
with  certainty  upon  looking  at  an  instrument  of  writing,  whether,  if  genuine, 
it  is  a  deed  or  not,  that  is,  whether  it  has  what  the  law  denominates  a  seal 
affixed  to  it  or  not ;  but  it  must  be  obvious  that  unless  the  true  character  of 
a  seal  is  fixed  by  the  law,  which  is  uniform  and  certain,  and  may  be  known 
by  every  one,  it  will  be  oftentimes  impossible  to  determine  whether  an  in- 
strument of  writing  is  a  deed  or  not.  If  parties  are  permitted  to  substitute 
any  mark  or  device  which  their  imagination  may  suggest  for  a  seal,  and  it  is 
to  be  made  a  question  of  fact  to  be  decided  by  a  jury  whether  it  was  so  in- 
tended or  not ;  it  will  not  only  introduce  great  confusion  and  uncertainty,  but 
a  principle  which  cannot  be  carried  into  effect  without  repealing  some  of  the 
provisions  of  our  statutes  providing  for  the  recording  of  deeds." 


920  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

court  proceeded,  under  the  charge  of  the  sheriff,  to  inspect  the  dams, 
wheels  and  premises  testified  about,  and  did  inspect  them.  The  jury 
returned  a  verdict  for  defendants.    The  plaintiffs  appeal. 

Cole.  T-"*  *  *  *  The  next  error  assigned  is  upon  the  giving  of 
the  eighth  instruction,  which  is  as  follows :  "You  will  determine  from 
all  the  evidence  in  the  case,  and  all  the  facts  and  circumstances  dis- 
closed on  the  trial,  including  your  personal  examination,  whether 
the  water  was  by  the  act  of  the  defendant  backed  up  on  the  premises 
of  the  plaintiffs  to  the  damage  of  their  water  power,  as  alleged.  If 
you  find  that  it  was  backed  up  to,  or  about,  the  line  or  beyond  the  line 
of  plaintiff,  but  not  in  such  a  manner  or  to  such  a  depth  as  to,  at  that 
time,  or  the  commencement  of  this  suit,  cause  any  perceptible  damage 
to  the  water  power  of  plaintiffs,  you  will  inquire  no  further,  but  find  a 
verdict  for  the  defendants." 

Two  points  are  made  in  argument  upon  this  instruction:  First.  In 
allowing  the  jury  to  base  their  verdict,  in  any  degree,  upon  their  per- 
sonal examination.  Second.  In  requiring  them  to  find  perceptible 
damage  to  the  water  power  of  plaintiffs  before  they  could  return  a 
verdict  for  them.  During  the  progress  of  the  trial,  "the  jury,  by  con- 
sent of  parties  and  by  direction  of  the  court,  proceeded,  under  charge 
of  the  sheriff,  to  inspect  the  dams,  wheels  and  premises  testified  about, 
and  did  so  inspect,"  as  shown  by  the  transcript.  This  inspection  by 
the  jury  was  ordered  under  the  Revision,  section  3061."°  Whenever, 
in  the  opinion  of  the  court,  it  is  proper  for  the  jury  to  have  a  view  of 
the  real  property  which  is  the  subject  of  controversy,  or  of  the  place 
in  which  any  material  fact  occurred,  it  may  order  them  to  be  con- 
ducted in  bi  body,  under  the  charge  of  an  officer,  to  the  place,  which 
shall  be  shown  to  them  by  some  person  appointed  by  the  court  for  that 
purpose;  while  the  jury  are  thus  absent,  no  person  other  tlian  the  per- 
son so  appomted  shall  speak  to  them  on  any  subject  connected  with 
the  trial."  (A  similar  provision  is  made  as  to  criminal  trials.  See  sec- 
tion 4800.) 

The  question  then  arises  as  to  the  purpose  and  intent  of  this  statute. 
It  seems  to  us  that  it  was  to  enable  the  jury,  by  the  view  of  the  prem- 
ises or  place,  to  better  understand  and  comprehend  the  testimony  of 
the  witnesses  respecting  the  same,  and  thereby  the  more  intelligently 
to  apply  the  testimony  to  the  issues  on  trial  before  them,  and  not  to 
make  them  silent  witnesses  in  the  case,  burdened  with  testimony  un- 
known to  both  parties,  and  in  respect  to  which  no  opportunity  for 
cross-examination  or  correction  of  error,  if  any,  could  be  afforded  ei- 
ther party.  If  they  are  thus  permitted  to  include  their  personal  ex- 
ainination,  how  could  a  court  ever  properly  set  aside  their  verdict  as 

»*  Statement  condensed  and  pJirt  of  opinions  omitted. 

•  6  That  at  common  law,  independent  of  any  statute,  the  court  might  prop- 
erly in  its  discretion  order  a  view  by  the  jury,  see  Springer  v.  Chicago,  135. 
111.  n.'"ili,  26  N.  E.  rA4,  12  L.  R.  A.  OO'J  (18!>1),  and  cases  there  cited. 


Sec.  4)  PHYSICAL  OBJECTS  921 

being  against  the  evidence,  or  even  refuse  to  set  it  aside  without  know- 
ing the  facts  ascertained  by  such  personal  examination  by  the  jury?  It 
is  a  general  rule,  certainly  if  not  universal  that  the  jury  must  base  their 
verdict  upon  the  evidence  delivered  to  them  in  open  court,  and  they 
may  not  take  into  consideration  facts  known  to  them  personally,  but 
outside  of  the  evidence  produced  before  them  in  court.  If  a  party 
would  avail  himself  of  the  facts  known  to  a  juror,  he  must  have  him 
sworn  and  examined  as  other  witnesses.*" 

Wright,  J.  (dissenting).  *  *  *  The  language  of  the  same  in- 
struction, however,  which  allowed  the  jury  to  use  their  "personal  ex- 
amination" of  the  premises  in  determining  whether  there  was  back  wa- 
ter, etc.,  is  the  material  error  relied  upon  in  this  connection. 

As  to  this,  I  say  briefly,  that  the  jury  had  a  view  of  the  premises, 
and  that  by  order  of  the  court.  This  the  law  allows.  That  they  had 
any  thing  else  than  this  view  is  not  pretended.  If  the  only  object  of 
the  statute  was  to  enable  the  jury  to  better  understand,  and  the  more 
intelligently  to  apply  the  testimony  of  the  witnesses,  then  I  confess  that 
I  do  not  see  why,  upon  this  basis  alone,  they  might  not,  in  determining 
tlie  ultimate  facts,  "include,"  or  made  use  of,  this  "personal  examina- 
tion." If  they  use  it  to  enable  them  to  understand  and  apply  the  tes- 
timony, then,  it  seems  to  me,  they  are  possessed  of  facts  unknown  to 
the  parties — and  whether  the  impressions  received  and  the  applica- 
tion of  the  testimony  are  true  or  false,  can  no  more  be  discovered  than 
if  they  have  actually  "burdened"  themselves  with  testimony.  And 
even  in  this  view,  therefore,  the  construction  of  the  instruction  would 
be  unwarranted. 

But  I  believe  the  statute  intended  that  this  personal  examination  or 
view  should  be  used  with  the  facts  and  circumstances,  to  aid  in  the  de- 
termination of  the  cause.  Thus,  to  take  an  illustration  drawn  from 
the  criminal  statute  (which  is  similar  to  that  provided  for  civil  cases, 
Revision,  §§  3061,  4800) — if,  in  a  homicide,  the  witnesses  differ  as  to 
the  distance  between  the  parties  as  at  the  time  of  the  fatal  shot,  those 
on  one  side  placing  it  at  fifty,  and  those  on  the  other  at  one  hundred, 
feet,  and  there  is  no  disagreement  as  to  the  exact  locality,  I  say  the 
jury,  having  a  view  of  the  premises,  have  a  perfect  right  to — that  they 
must,  that  they  cannot  help  calling  to  their  aid  their  view  of  the  local- 
ity and  distance ;  and  from  these,  with  the  testimony,  they  reach  their 
conclusions.  So,  too,  in  a  civil  case,  they  may  view  "the  place  where 
any  material  fact  occurred."  A.  charges  that  B.  assaulted  him  in 
a  building  near  to  an  inhabited  dwelling  to  the  north,  but  that  the 
building  had  no  window  or  other  opening  on  that  side,  and  that  his 
cries  for  help  were,  hence,  not  heard.  The  existence  or  non-existence 
of  such  window  becomes  material,  and  the  testimony  is  in  direct  con- 

96  Accord:  Roberts  v.  City  of  Phuadelphia,  239  Pa.  339,  86  Atl.  926  (1913), 
semble.  See,  also,  cases  collected  in  note  to  People  v.  Thorn,  42  L.  R.  A.  368 
(1898). 


922  CIRCUMSTANTIAL  EVIDEXCB  (Cll.  5 

flict.  The  jury  are  conducted  to  the  place,  and  now,  I  ask,  what  are 
they  to  do?  Make  use  of  the  view  to  apply  the  testimony,  or  see  and 
know  for  themselves  the  exact  condition  of  the  wall — whether  there 
is  or  not  such  an  opening?  I  say  the  latter.  Or  to  take  another  il- 
lustration, drawn  from  this  case :  There  was  disagreement  as  to  wheth- 
er there  was  or  was  not  a  perceptible  current  immediately  below  plain- 
tiffs' dam.  One  party  attempted  to  establish  that  there  was,  and,  hence, 
that  there  was  no  back-water ;  the  other,  that  there  was  not,  and  hence, 
interference  with  plaintiffs'  power.  Now,  by  no  means  claiming  that 
the  jury  could  do  more  than  view  the  premises,  I  maintain  that  they 
could  not  do  otherwise  than  look  at  the  actual  condition  of  the  wa- 
ter, and  that  the  view  thus  had  becomes  an  aid;  is  to  them,  and  for 
them,  and  for  each  and  every  man,  testimony.  It  is  said  there  is  no 
chance  for  cross-examination;  that  the  basis  of  the  juror's  conclu- 
sion may  be  erroneous.  I  answer,  "All  this  is  equally  true,  if  he  is 
to  have  the  view  only  to  better"  understand  and  explain  the  testi- 
mony. And  so  I  might  illustrate  my  views  in  many  other  ways,  but 
this  must  suffice.  And  if  to  this  conclusion,  the  objection  is  that  a 
court  could  not  properly  set  aside  a  verdict,  as  being  against  eviHence, 
because  it  could  not  know  what  it  was,  I  answer,  first,  that  this  "view" 
is  not  allowed,  except  in  the  opinion  of  the  court  it  is  proper.  And, 
second,  the  legislature  doubtless  considered  this  very  difficulty,  and  yet 
deemed  it  better  to  give  this  power — the  court,  judging  when  it  should 
be  exercised — even  though  the  difficulty  of  knowing  upon  what  the  ver- 
dict was  based  might  be  really  increased,  than  to  withhold  it  entirely. 
And  especially  so  as  the  parties  can  be  heard  before  the  order  is  made, 
when  this  very  objection,  as  applied  to  the  particular  case,  can  be  fully 
presented  and  as  fully  considered.  *  *  ♦ 
Judgment  reversed. 


HINNERS  et  al.  v.  EDGEWATER  &  FT.  L.  R.  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1908.     75  N.  J.  Law,  514,  69 

Atl.  161.) 

Garrison,  J.®^  This  writ  of  error  is  brought  by  the  railroad  com- 
pany to  reverse  the  judgment  rendered  in  the  circuit  court  of  Bergen 
county  upon  an  appeal  from  the  award  of  commissioners  in  a  con- 
demnation proceeding.     *     ♦     * 

A  subject  of  more  general  interest  is  presented  by  the  assignment 
based  upon  the  exception  to  the  language  in  which  the  trial  court  in- 
structed the  jury  touching  the  use  to  be  made  by  them  of  the  view  of 
the  premises  which  in  accordance  with  the  requirement  of  the  statute 
had  been  had.    What  the  court  said  upon  this  point  was  as  follows: 

"You  have  listened  to  all  the  evidence  in  this  case,  but  you  may  use 
your  own  judgment  in  connection  with  the  testimony  that  is  before 

"T  I'urt  of  oplniou  omitted. 


Sec.  4)  PHYSICAL  OBJECTS  923 

you.  The  whole  question  is  a  question  of  opinion,  and  the  very  object 
in  sending  you  to  look  at  this  property  was  to  enable  you  to  form  your 
own  opinion  as  to  the  question  which  you  are  now  called  upon  to  decide, 
giving  due  consideration,  of  course,  to  the  evidence  which  has  been 
presented,  and  giving  it  such  weight  as  you  think  it  is  entitled  to.  But 
nevertheless  beyond  that  you  have  a  right  to  use  your  own  judgment 
in  connection  with  the  testimony,  and  say  what  you  think  the  landown- 
ers ought  to  have  for  the  value  of  the  strip  taken,  and  the  cost  of  re- 
storing their  plant  on  some  other  part  of  the  property." 

On  the  part  of  the  plaintiff  in  error,  it  was  insisted  that  by  this  charge 
the  jury  were  instructed  that  they  might  "bring  in  a  verdict  in  accord- 
ance with  their  own  opinions  irrespective  of  the  evidence."  The  de- 
fendant in  error,  on  the  other  hand,  contends  that  the  jury  was  not 
instructed  to  give  any  such  probative  force  to  their  view  independently 
of  or  without  due  regard  to  the  evidence,  but  that  they  were,  on  the 
contrary,  expressly  told  to  use  their  view  in  forming  their  judgment 
of  the  evidence  and  in  reaching  an  opinion  with  reference  thereto. 

We  think  that  the  latter  is  the  fair  interpretation  to  be  put  upon  the 
language  in  question,  and  that  the  trial  judge  did  not  fall  into  the  error 
imputed  to  him  by  the  former  construction  of  his  charge.  Thus  inter- 
preted the  instruction  was  a  proper  one.  The  view  of  the  premises 
in  condemnation  cases  is  made  not  under  the  thirty-first  section  of  the 
jury  act  (Gen.  St.  p.  1851),  but  under  the  express  direction  of  the 
condemnation  act  (P.  L.  1900,  p.  79).  Considering  the  radical  differ- 
ences tliat  exist  between  the  complex  issues  submitted  to  ordinary  trial 
juries  and  the  single  question  raised  upon  the  appeal  in  condemnation 
cases,  it  may  well  be  doubted  whether  the  stringent  rule  laid  down  as 
to  the  limited  function  of  an  ordinary  jury  of  view  is  at  all  applic- 
able to  condemnation  proceedings.  Speaking  for  myself,  I  think 
that  it  is  not;  and  in  many  jurisdictions  the  distinction  has  been 
observed  and  acted  upon.  It  is  not,  however,  necessary  in  the  pres- 
ent case  to  lay  any  especial  emphasis  on  this  distinction,  for  the  rea- 
son that  the  charge  under  review  does  not  when  reasonably  inter- 
preted give  any  undue  weight  or  latitude  to  the  view  that,  under 
the  statute,  the  jury  is  expressly  required  to  make.  In  effect,  the  jury 
were  told  that  they  might  make  use  of  their  view  of  the  premises  in 
forming  their  judgment  of  the  testimony  and  in  reaching  an  opinion 
upon  its  consideration,  and  that  their  opinion  upon  the  questions  they 
were  to  decide  should  be  based  upon  the  testimony  as  thus  under- 
stood by  them  and  applied  to  what  they  had  seen.  This  I  think  is  a  cor- 
rect charge.  If  the  jury  may  not  make  this  use  of  their  view,  it  is 
impossible  for  me  to  conceive  of  any  reason  for  the  imperative  re- 
quirement of  the  statute  that  a  view  must  be  had. 

The  circumstance  that  the  jury's  judgment  of  the  testimoov  may  in 
some  instance  be  modified,  and  in  extreme  instances  perhaps  controlled 
by  the  result  of  their  view,  instead  of  militating  against  the  construc- 
tion contended  for  is  the  strongest  reason  for  its  adoption;    for  it  is 


924  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

admitted  on  all  sides  that  one  of  the  legitimate  uses  of  a  view  is  that 
the  jury  may  understand  the  testimony.  This  being  so,  it  may  well 
follow  as  to  some  testimony  that  to  understand  it  is  to  discredit  it, 
while  as  to  other  testimony  to  understand  it  is  to  accept  it  even  in  the 
face  of  contradiction  or  denial.  For  instance,  if  the  testimony  were 
that  a  building  was  of  insignificant  size  and  in  a  tumble-down  condi- 
tion and  the  jury  upon  viewing  the  building  saw  that  it  was  of  large 
dimensions  and  in  perfect  repair,  the  testimony  that  contradicted  the 
jury's  obser\'ation  would  go  for  nothing,  not  because  it  had  been  over- 
powered by  illicit  evidence,  but  simply  because  it  was  understood  by  the 
jury  for  what  it  was  worth.  Instances  may  be  multiplied  in  which  the 
jury  might  properly  use  its  view  to  check  up  the  testimony  adduced  by 
the  parties  without  any  infringement  by  the  jury  of  the  rule  that  pro- 
hibits the  importation  into  the  case  of  outside,  or  even  of  inside,  in- 
formation tlirough  some  other  channel  than  that  recognized  by  the  law. 
The  language  of  the  charge  in  the  present  case  is  entirely  consistent 
with  this  legitimate  use  by  the  jury  of  its  view  of  the  premises,  and 
can  only  by  the  most  strained  construction  be  held  to  do  violence  to  it. 
In  what  is  thus  said  it  must  not  be  inferred  that  the  condemnation  act 
may  not  be  subject  to  an  even  broader  construction  of  its  requirement 
for  a  view  of  the  premises  by  the  jury. 

The  case  of  De  Gray  v.  N.  Y.  &  N.  J.  Tel.  Co.,  68  N.  J.  Law,  454,  53 
Atl.  200,  relied  upon  by  the  plaintiff  in  error  is  entirely  without  appli- 
cation. That  case  was  not  at  all  concerned  with  the  question  of  a 
view;  indeed,  neither  the  word  nor  the  subject  is  once  mentioned  by 
Mr.  Justice  Fort  in  the  opinion  delivered  by  him  in  the  Supreme  Court. 
What  that  case  held  was  that  "the  experiences  of  the  jurors"  as  to 
whether  telephone  poles  detracted  from  the  market  value  of  abutting 
land  was  an  extrajudicial  and  improper  means  of  arriving  at  a  verdict. 
But  obviously  a  decision  upon  that  point  can  have  no  bearing  upon  a 
view  that  is  expressly  required  by  a  statutory  proceeding. 

A  discriminating  and  comprehensive  statement  of  judicial  decision 
upon  this  subject  is  contained  in  15  Cyc.  p.  880,  subtit.  "Eminent  Do- 
main" ;  and  a  similarly  instructive  summary  will  be  found  under  the 
same  caption  in  7  Ency.  PI.  &  Pr.  p.  581. 

Our  conclusion  is  that  the  points  relied  upon  by  the  plaintiff  in  er- 
ror direct  our  attention  to  no  ground  for  the  reversal  of  tlie  judgment 
before  us,  which  is  therefore  aftirmed. 

Judgment  affirmed."* 

»«In  Carpenter  v.  Carpenter  (N.  n.)  101  Atl.  628,  L.  B.  A.  1017F,  974 
(1917),  the  judge  before  whom  a  case  was  tried  without  a  jury  made  a  per- 
Bonal 'exaiidnation  of  a  place  in  controversy  which  was  beyond  the  slate  line, 
and  it  was  urged  that  in  so  doin.i?  he  comluctod  a  part  of  the  trial  outside  of 
the  jurisdiction.     In  ovcrniling  this  objection,  Walker,  J.,  said: 

"In  some  sense  the  purpose  of  a  view  is  the  aoiuisltion  by  the  jury  of  a 
special  and  restricted  kind  of  evidence,  which  the  trial  court  in  its  discretion 
tluds  may  be  of  use  to  the  jury  in  reaching  a  vi-rdlct.  The  jury  are  not  sent 
out  to  get  evidence  generally,  or  to  examine  physical  facts  not  authorized  In 


Sec.  4)  PHYSICAL  OBJECTS  925 

the  order.  Thoy  do  not  hear  oral  testimony ;  no  witnesses  are  examined ;  no 
arguments  are  made.  They  merely  see  such  physical  objects  as  are  properly 
shown  to  tlioni,  and  receive  impressions  therelrom.  Tliey  get  a  mental  pic- 
ture of  the  locality,  which  as  sensible  men  they  carry  back  to  the  courtroom 
and  use  in  tlieir  deliberations  as  evidence.  It  would  therefore  be  senseless  to 
say  that  in  this  restricted  sense  the  information  thus  gained  by  actual  in- 
spection is  not  evidence  which  the  trier  of  the  fact  is  authorized  to  use  in 
reaching  a  verdict,  and  which  counsel  are  entitled  to  comment  upon  in  argu- 
ment. The  acquisition  of  such  evidence  does  not  depend  upon  the  oaths  of 
witnesses,  is  not  tested  by  cross-examination,  and  presents  no  questions  of 
law  calling  for  a  ruling  of  the  court  on  the  grounds  of  admissibility  or  rele- 
vancj'.  The  court  as  such  has  no  function  to  perform  when  such  evidence 
is  presented,  for  it  depends  entirely  upon  the  jury's  ability  to  observe  what  is 
pointed  out  to  them.  No  trial  is  had  while  the  view  is  in  progress,  and  tlie 
court  is  not  in  session  at  the  place  of  the  view  for  the  trial  of  the  case. 

"The  procedure  by  which  special  evidence  of  the  character  indicated  be- 
comes available  is  in  fact  based  upon  a  useful  rule  of  necessity,  without 
which  much  valuable  information  clearly  bearing  upon  the  trial  of  cases 
would  be  withheld  from  the  tribunal  charged  with  the  duty  of  deciding  the 
facts.  It  provides  a  method  by  which  evidence  of  a  peculiar  and  restricted 
character  may  be  obtained  in  the  absence  of  the  court  and  without  the  ob- 
servance of  the  rules  deemed  essential  in  the  production  of  evidence  given  in 
court.  It  may  not  be  inaccurate  to  say  that  this  procedure  is  anomalous,  but 
is  justified  in  fact  as  a  necessary  exception  to  the  general  rule  that  evidence 
must  be  produced  in  court  subject  to  numerous  judicial  restrictions  and  direc- 
tions. 

"There  is  much  apparent  conflict  in  the  language  used  by  courts  in  defining 
the  object  or  purpose  of  ordering  or  permitting  views  to  be  taken.  In  some  of 
the  authorities  it  is  said  that  a  view  is,  in  no  proper  sense,  intended  to  fur- 
nish evidence,  but  to  afford  a  means  by  which  the  jury  can  better  understand 
and  apply  the  strictly  legal  evidence  already  in  the  case  or  to  be  thereafter 
submitted.  This  restrictive  language  is  derived  from  St.  4  &  5  Anne,  c.  16, 
§  8,  where  in  the  discretion  of  the  court  jurors  may  be  ordered  to  take  a  view 
of  the  'place  in  question,  in  order  to  their  better  understanding  the  evidence 
that  will  be  given  upon  the  trials  of  such  issues.'  Similar  expressions  occur 
in  the  statute  law  of  many  of  the  scates.  In  this  state  the  statute  provides 
that:  'In  the  trial  of  actions  involving  questions  of  right  to  real  estate,  or  in 
which  the  examination  of  places  or  objects  may  aid  the  jury  in  understanding 
the  testimony,  the  court,  on  motion  of  either  party  may,  in  their  discretion, 
direct  a  view  of  the  premises  by  the  jury,  under  such  rules  as  thoy  may  pre- 
scribe.' P.  S.  c.  227,  §  19.  It  is  not  clear  how  this  distinction  proves  the 
proposition  that  the  information  derived  from  a  view  is  not  for  all  practical 
purposes  evidence,  or  that  it  is  not  as  much  evidence  as  similar  information 
conveyed  by  an  inspection  of  a  physical  object  exhibited  to  the  jury  in  court. 

"Other  authorities  hold  that  the  information  obtained  by  the  jury  upon  a 
view  is  as  much  evidentiary  in  its  character  as  the  sworn  testimony  of  wit- 
nesses regularly  received  in  court,  while  still  other  courts  regard  it  as  evi- 
dence to  be  considered  like  sworn  testimony,  subject  to  the  qualification  that 
alone  it  is  not  sufficient  to  support  a  verdict.  For  cases  in  support  of  these 
differing  opinions  see  note  in  42  L.  R.  A.  385.  While  the  purpose  of  a  view 
is  not  to  obtain  'evidence'  in  the  broad  sense  of  that  term  or  to  permit  the 
jury  to  use  their  power  of  observation  while  taking  a  view  to  discover  mate- 
rial facts  not  apparent  from  the  actual  situation  of  the  things  under  obser- 
vation, it  is  difficult  to  understand  why  the  impressions  made  upon  tlieir 
minds  by  an  inspection  of  a  physical  object  regularly  pointed  out  to  them 
should  not  be  permitted,  in  a  legal  sense,  to  have  the  force  of  evidence,  when 
as  a  matter  of  simple  mental  reasoning  honest  jurymen  could  reach  no  other 
result.  If  the  object  is  black  when  seen  by  the  jury  it  would  be  absurd  to 
expect  them  to  find  that  it  was  white,  in  the  alisence  of  evidence  indicating 
that  they  had  been  imposed  upon.  An  instruction  that  although  they  knew 
from  an  authorized  observation  of  it  that  it  was  black,  they  could  not,  as  a 
matter  of  law,  find  it  was  of  that  color,  because  tliey  had  no  legal  evidence 
of  it.  would  strike  the  ordinary  mind  as  a  strange  and  unreasonable  doctrine 


926  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

ORSCHELN  V.  SCOTT. 

(Court  of  Appeals  of  Missouri,  1901.     90  Mo.  App.  352.) 

Ellison,  J.^^  This  is  an  action  for  damages  alleged  to  have  re- 
sulted to  plaintiff  by  reason  of  defendant's  assault  upon  him  with  a 
knife  whereby  one  of  his  eyes  was  cut  out.  The  verdict  and  judgment 
in  the  trial  court  was  for  plaintiff  in  the  sum  of  $3,000.  Of  this  sum 
the  verdict  stated  that  $2,500  was  for  compensatory,  $500  was  for 
punitive  damages.  The  answer,  besides  a  general  denial,  pleaded  plain- 
tift"s  own  first  assault.     *     *     * 

The  court  gave  an  instruction  that  in  estimating  the  damages  the 
jury  could  consider  the  age  of  plaintiff.  He  was  before  the  jury,  and, 
as  already  stated,  was  a  witness  in  the  cause.  Yet  there  was  no  evi- 
dence oft'ered  as  to  his  age,  and  the  defendant  claims  that  such  omis- 
sion rendered  the  instruction  improper.  It  was  held  by  this  court 
in  two  personal  injury  cases  that  in  the  absence  of  evidence  offered  in 
that  behalf,  it  was  error  to  give  such  instruction.  Hinds  v.  City  of 
Marshall,  22  Mo.  App.  208;  Gessley  v.  Railroad,  26  Mo.  App.  156. 
Notwithstanding  these  cases,  we  are  of  the  opinion  that  in  a  case  of 
this  nature,  calling  for  a  character  of  damages  which  are  not  the 
subject  of  ascertainment  with  mathematical  precision,  the  inspection 
and  observation  of  the  jury  is  all  that  is  necessary  as  a  base  upon 
which  to  place  an  instruction  as  to  age.  The  question  of  age  has  its 
influence  chiefly  as  to  prospective  damages  during  the  life  of  the  party. 
Such  damages  are  necessarily  uncertain  and  tlieir  mode  of  ascertain- 

based  upon  a  refinement  in  legal  reasoning  subversive  of  the  just  and  prac- 
tical administration  of  justice.  'There  is  no  sense  in  the  conchision  that  the 
knowledge  which  the  jurors  acquired  by  the  view  is  not  evidence  in  the  case.' 
1  Thomp.  Trials,  §893;  2  Wig.  Ev.  §  1168;  Tully  v.  Railroad,  134  Mass.  499 
[18S3] ;  7  Enc.  PI.  &  Pr.  581.  There  is  little  merit  in  the  contention  that  the 
libelant  had  no  means  of  knowing  what  impressions  the  evidence  produced  by 
the  view  had  upon  the  justice,  and  hence  that  no  way  was  open  to  meet  or 
explain  them ;   for  this  is  equally  true  when  a  jury  takes  a  view. 

"A  more  extended  discussion  of  this  subject  or  a  critical  examination  of 
the  cases  outside  this  jurisdiction  which  seem  to  be  germane  is  unnecessary, 
because  the  unquestioned  practice  in  this  state  shown  by  the  cases  is  deter- 
minative of  tne  question.  A  view  is  one  means  of  obtaining  a  certain  class  of 
evidence.  Information  thus  acquired  by  the  jury,  which  is  material  to  the 
issue  and  necessarily  involved  in  the  subject-matter  of  the  view,  has  been  rec- 
ognized as  evidence  in  the  following  cases,  among  others,  without  a  sugges- 
tion that  Its  use  as  such  was  open  to  doubt:  Cook  v.  New  Durham,  64  N.  H. 
419  420  13  Atl.  650  [1S871 ;  Concord  Land  &  Water  Power  Co.  v.  Clough,  70 
N   il.  027,  47  Atl.  704  [19001 ;    Flint  v.  Company,  73  N.  II.  483,  485,  62  Atl.  788 

[ioOOl;    Lane  v.  Manflioster  Mills,  75  N.  11.  102.  106,  71  Atl.  629  [1908];   City 

Bowling  Allevs  v.  Herlin.  78  N.  II.  109,  170,  97  Atl.  976  [1900];    Osman  v. 

Company,  78  N.  II.  597,  99  Atl.  287  [1910]." 

Whether  a  view  by  the  jury  is  such  a  part  of  the  trial  as  to  require  the 
presence  of  the  defendant  in  a  criminal  case,  see  People  v.  Thorn,  156  N.  Y. 

286,  50  N.  E.  947,  42  L.  U.  A.  368  (1898),  annotated. 
•  0  Part  of  opinion  omitted. 


Sec.  4)  PHYSICAL  OBJECTS  927 

ment  is  necessarily  indefinite,  and  much  is  necessarily  left  to  the  sound 
sense  and  discretion  of  the  jury.  This  is  constantly  repeated  in  ad- 
judicated cases  in  this  State  and  elsewhere.  It  is  not  necessary  to  fix 
an  exact  age  in  order  that  the  ^ury  may  estimate  the  future.  In  cases 
of  this  character,  it  is  of  no  practical  importance  to  know  the  pre- 
cise age.  It  is  not  a  case  of  that  kind.  It  would  make  no  appreciable 
or  substantial  difference  in  the  jury's  estimate  of  probable  future  dam- 
ages, whether  the  injured  party  was  ten,  or  twelve  years  of  age ;  or, 
whether  he  was  forty  or  forty-one,  two,  three  or  four  years  old.  Mor- 
tality tables  are  not  necessary  as  evidence.  If  this  is  not  true,  then 
tlie  age  to  the  month  and  day  should  be  proven.  And  if  the  age  is  not 
known,  even  by  the  plaintiff  himself,  as  is  sometimes  the  case,  the  jury 
would  not  be  at  liberty  to  make  any  estimate,  in  that  respect  of  future 
damages.  Their  observation  of  the  person  himself  during  the  trial 
would  be  of  no  importance.  It  seems  to  me,  therefore  that  the  observa- 
tion of  plaintiff  by  the  jury  was  sufficient  as  a  basis  from  which  to 
estimate  the  damages. 

"Inspection  is  to  be  regarded  rather  as  a  means  of  dispensing  with 
evidence  than  as  evidence  itself.  That  which  the  court  or  jury  sees, 
need  not  be  proved.  The  appearance  of  a  defendant,  for  instance,  so 
as  to  make  up  a  basis  of  comparison  in  cases  of  identity,  need  not  be 
proved  by  testimony,  when  the  defendant  appears  in  person  at  the 
trial.  By  the  Romans,  this  method  of  proof  is  frequently  noticed. 
*  *  *  Nor  is  it  only  the  immediate  object  presented  to  the  eye  that 
is  thus  proved.  Inferences  naturally  springing  from  such  appearances 
are  to  be  accepted ;  age,  bodily  strength,  being  thus  inferred.  *  *  *  " 
1  Wharton  on  Evi.,  §  345. 

Greenleaf  (volume  1,  §  13a)  says,  that  the  court  has  at  its  disposal 
for  the  ascertainment  of  fact  "self-perception  or  self-observation,  au- 
toptic  proference;  i.  e.,  the  presentation  of  the  object  itself  for  the 
personal  observation  of  the  tribunal."  And  in  sections  13b  to  13d  he 
approves  of  establishing  age  by  observation.  So  it  has  been  decided, 
and  that,  too,  in  criminal  cases,  that  observation  of  the  jury  could  be 
relied  upon  to  establish  the  age  of  an  accused.  Com.  v.  Emmons,  98 
Mass.  6  (approved  in  Keith  v.  Railroad,  140  Mass.  175,  3  N.  E.  28) ; 
State  V.  Arnold,  35  N.  C.  184;  State  v.  McNair,  93  N.  C.  628.  We 
regard  this  view  as  having  met  the  approval  of  our  Supreme  Court  in 
the  case  of  State  v.  Thompson,  155  Mo.  300,  55  S.  W.  1013.  In  that 
case  it  was  necessary  to  establish  that  the  defendant  was  over  sixteen 
years  of  age.  He  was  a  witness  and  Judge  Gantt  said :  "Not  only 
could  they  (the  jury)  use  their  eyes  in  determining  that  fact,  but  the 
defendant  testified  that  he  was  a  graduate,"  etc.  And  so,  on  kindred 
subjects,  the  same  rule  had  frequently  been  laid  down.  Thus,  obser- 
vation of  resemblance  between  father  and  child,  when  the  latter  is 
old  enough  to  have  distinctive  features,  will  establish  the  paternity 
of  the  partv  alleged  to  be  the  father.  State  v.  Smith,  54  Iowa,  104,  6 
N.  W.  153,' 37  Am.  Rep.  192;   State  v.  Horton,  100  N.  C.  443,  6  S.  E. 


928  CIUCUMSTAXTIAL  EVIDENCE  (Ch.  5 

238,  6  Am.  St.  Rep.  613;  Clark  v.  Bradstreet,  80  Me.  454,  15  Atl.  56, 
6  Am.  St.  Rep.  221;  Gilmanton  v.  Ham,  38  N.  H.  108;  State  v. 
Woodruff,  67  N.  C.  89 ;  Gaut  v.  State,  50  N.  J.  Law,  490,  14  Atl. 
600.  And  observation  will  suffice  to  show  race  or  color  of  person. 
Garvin  v.  State,  52  Miss.  207 ;  W^arlick  v.  White,  76  N.  C.  175. 

Indeed,  it  is  universally  conceded  that  where  the  party  in  question 
is  absent,  the  opinion  of  the  witness  as  to  his  age,  formed  from  his 
appearance,  is  competent  evidence :  Lawson  on  Expert  and  Opin. 
Evi.  528;  Rogers  on  Expert  Test.  10;  Eisner  v.  Sup.  Lodge  K.  of  H., 
98  Mo.  645,  11  S.  W.  991 ;  State  v.  Douglass,  48  Mo.  App.  39;  Com- 
monwealth V.  O'Brien,  134  Mass.  198;  State  v.  Bernstein,  99  Iowa, 
5,  68  N.  W.  442 ;  Jones  v.  State,  32  Tex.  Cr.  R.  108,  22  S.  W.  149 ; 
Bice  v.  State,  37  Tex.  Cr.  R.  38,  38  S.  W.  803 ;  Garner  v.  State,  28 
Tex.  App.  561,  13  S.  W.  1004;  Benson  v.  McFadden,  50  Ind.  431; 
State  V.  Grubb,  55  Kan.  678,  41  Pac.  951.  Now  it  is  manifest  that  if 
an  ordinary  nonexpert  witness  may  form  an  opinion  of  an  absent 
person's  age  from  his  appearance,  and  may  give  that  opinion  in  evi- 
dence, the  jury  also  can  form  an  opinion  from  the  appearance  of  the 
party  who  is  present  before  them  during  the  trial,  especially  when  he 
is  both  a  party  and  a  witness.  Why  should  a  witness  testify  to  that 
which  the  jurymen  see  for  themselves?  If  a  black  man  is  before  a 
jury  as  a  party  and  witness,  must  others  be  called  upon  to  tell  the  jury 
that  he  is  black?  Where  a  jury  has  as  much  opportunity  for  knowl- 
edge of  a  non-expert  subject  as  anyone  else,  it  is  idle  to  call  others  to 
tell  them  what  they  already  see  and  know.  If  the  witness  agrees  with 
the  jury's  observation,  his  testimony  is  useless  and  if  he  testifies  in  the 
face  of  what  they  see  for  themselves,  they  will  refuse  to  credit  him. 
The  very  question  now  before  us  was  decided  in  Commonwealth  v. 
Emmons,  98  Mass.  6,  supra.  That  case  was  a  prosecution  charging 
the  defendant  with  permitting  two  minors  to  play  billiards  at  his  place. 
One  of  them  was  a  witness,  but  there  was  no  proof  of  his  age,  and  the 
trial  court  "ruled  that  the  jury  might  determine  by  personal  inspection 
of  him  whether  or  not  he  was  a  minor."  On  appeal,  the  Supreme  Court 
of  Massachusetts  said : 

"There  is  nothing  in  the  bill  of  exceptions  from  which  it  can  be  in- 
ferred that  the  defendant  was  aggrieved  by  the  ruling  of  the  court  ih 
permitting  the  jury  to  judge  whether  one  of  the  alleged  minors  was 
under  age,  from  his  appearance  on  the  stand.  There  are  cases  where 
such  an  inspection  would  be  satisfactory  evidence  of  the  fact.  It  cer- 
tainly was  not  incompetent  for  the  jury  to  take  his  appearance  into 
consideration  in  passing  on  the  question  of  his  age;  and,  as  it  does 
not  appear  that  this  may  not  have  afforded  plenary  evidence  of  the 
fact,  the  defendant  fails  to  show  that  he  was  convicted  on  insufficient 
evidence,  or  that  he  has  been  prejudiced  by  the  ruling  of  the 
court."     *     *     * 

It  follows  from  the  foregoing  that  defendant's  objection  to  the  want 
of  evidence  as  to  ago  is  not  well  founded. 


Sec.  4)  PHYSICAL  OBJECTS  929 

During  the  trial,  plaintiff  was  permitted,  over  defendant's  objection, 
to  exhibit  the  empty  eye-socket  to  the  jury  with  the  scar  above  and 
below.  It  is  said  in  support  of  defendant's  objection  that  it  was  ad- 
mitted tliat  defendant  had  cut  and  destroyed  the  eye  and  that  the  ex- 
hibition to  the  jury  could  serve  no  other  purpose  than  to  excite  their 
pity  and  sympathy.  Undoubtedly  such  was  the  tendency.  But  if 
plaintiff  was  entitled  to  make  the  showing,  such  result  can  only  be  re- 
garded as  an  unavoidable  consequence.  It  is  a  result  which  follows, 
in  greater  or  less  degree,  the  mere  entrance  of  a  maimed  litigant  into 
the  courtroom.  It  was  a  species  of  real  evidence,  or,  to  use  Green- 
leaf's  language,  of  autoptic  proference.  There  was  no  better  way  to 
show  the  extent  of  the  injury,  thereby  aiding  in  the  estimate  of  dam- 
ages. Haynes  v.  Trenton,  123  Mo.  335,  27  S.  W.  622 ;  Thompson  on 
Trial,  §  858;  Carrico  v.  Railroad,  39  W.  Va.  86,  19  S.  E.  571,  24  L. 
R.  A.  50.  Such  exhibition  is  generally  and  rightly  treated  as  a  proper 
process  of  proof,  subject  to  occasional  exclusion  in  cases  of  abuse. 
1  Greenleaf  on  Evi.  §  13f ;  2  Taylor  on  Evi.  3656.     *     *     * 

Ellison,  J.  Since  the  foregoing  opinion  was  written,  but  before 
it  was  promulgated,  we  have  been  cited  to  the  case  of  Phelps  v.  City  of 
Salisbury,i°«  *  *  *  j^gt  reported  in  161  Mo.  1,  61  S.  W.  582, 
wherein  it  is  held  by  the  Supreme  Court  that  an  instruction  as  to  a 
plaintiff's  age  when  there  was  no  evidence  thereof  introduced  was 
error,  notwithstanding  he  was  present  before  the  jury.  Our  conclu- 
sion on  that  subject,  as  expressed  in  the  foregoing  opinion,  must  there- 
fore be  considered  not  authority. ^°^ 


WISTRAND  V.  PEOPLE. 

(Supreme  Court  of  Illinois,  1904.    213  111.  72,  72  N.  E.  74S.) 

This  is  a  writ  of  error,  sued  out  of  this  court  by  Charles  Wistrand. 
the  plaintiff  in  error,  to  review  a  judgment  of  the  criminal  court  of 
Cook  county  whereby  plaintiff  in  error  was  adjudged  guilty  of  the 
crime  of  rape  and  sentenced  to  the  penitentiary  for  a  term  of  two 
years. 

The  indictment  consisted  of  three  counts.  The  first  and  third 
charged  rape  by  force  upon  one  Eva  Goldstein.  There  was  no  evidence 
of  the  use  of  force  to  sustain  these  counts.  The  second  count  charged 
the  commission  of  the  crime  without  force,  alleging  that  the  defend- 
ant was  a  male  person  above  the  age  of  16  years,  that  the  female  was 
under  the  age  of  14  years,  and  that  the  act  was  committed  with  the 
consent  of  the  female.     *     *     * 

100  In  this  case  the  Supreme  Court  apparently  held  that  inspection  alone 
did  not  furnish  a  sufficient  basis  to  determine  age  for  this  purpose. 

101  In  State  v.  Gebhardt,  219  Mo.  70S,  119  S.  W.  350  (1909),  it  was  held  that 
the  jury  might  properly  find  that  defendant  was  over  sixteen  from  inspection 
and  the  fact  that  he  was  an  attorney. 

HiNT.Ev.— 59 


930  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

Scott,  J.^°"  *  *  *  j^^  ^l^jg  ^.^gg  ^-^^  £^(,|-  ^\^^^  ^^^^  female  had  not 
reached  the  age  of  14  was  shown  by  the  evidence  of  her  father.  The 
fact  that  the  sexual  intercourse  took  place  was  shown  by  the  evidence 
of  the  female  herself,  and  by  the  written  confession  of  the  male,  made 
shortly  after  his  arrest.  This  confession  contained  also  a  statement 
that  he  was  44  years  old,  and  his  age  was  not  otherwise  proven.  It 
is  elementary  that  the  corpus  delicti  cannot  be  proven  by  the  confession 
of  the  defendant  alone.  May  v.  People,  92  111.  343 ;  Williams  v.  Peo- 
ple, 101  111.  382 ;  Gore  v.  People,  162  111.  259,  44  N.  E.  500.  Unless 
the  defendant  was  above  the  age  of  16  at  the  time  of  the  alleged  com- 
mission of  the  offense,  there  was  no  violation  of  the  statute.  It  was 
as  essential  to  prove  his  age  as  it  was  to  establish  the  age  of  tlie  fe- 
male, or  to  show  that  fornication  occurred.  Either  of  the  three 
elements  lacking,  the  corpus  delicti  is  not  established.  Consequently, 
there  should  be  evidence  tending  to  establish  each  of  these  three  nec- 
essary facts,  aside  from  the  confession  of  the  defendant.  So  far  as 
proving  his  age  was  concerned,  there  was  no  evidence  except  his  con- 
fession. It  follows,  therefore,  that  without  his  confession  there  was 
no  proof  that  a  crime  had  been  committed,  because,  except  he  was  more 
than  16  years  of  age,  no  crime  was  committed.  For  the  purpose  of 
fixing  the  age  of  the  defendant,  persons  who  had  seen  him  would  have 
been  competent  to  testify  relative  to  his  appearance,  and  such  testimony 
would  have  been  proper  for  the  consideration  of  the  jury  on  the  ques- 
tion of  age. 

Defendant  in  error  suggests  that  the  defendant  was  present  in  court 
on  the  trial,  and  that  this,  together  with  the  confession,  was  sufficient 
to  justify  the  jury  in  finding  him  to  be  more  than  16  years  of  age.  The 
defendant  did  not  take  the  witness  stand  except  on  a  preliminary  ques- 
tion in  reference  to  the  admission  of  his  confession  in  evidence,  and 
the  jury  was  excluded  from  the  courtroom  while  he  was  testifying  on 
that  subject.  But  whether  he  did  or  did  not  testify,  the  law  does  not 
allow  the  jury  to  fix  his  age  by  inspecting  his  person.  Stephenson  v. 
State,  28  Ind.  272.  While  the  appearance  of  the  defendant  might  be 
conclusive  evidence  to  the  jury,  there  would  be  some  difficulty  in  hav- 
ing evidence  of  that  character  preserved  in  the  bill  of  exceptions  for  the 
inspection  of  a  court  of  review.  "To  allow  a  jury  to  make  up  their 
verdict  upon  a  disputed  fact  from  their  own  individual  observation 
would  be  most  dangerous  and  unjust."  Seaverns  v.  Lischinski,  181 
111.  358,  54  N.  E.  1043. 

There  is  no  merit  in  the  other  errors  assigned.  The  judgment  will 
be  reversed,  and  the  cause  will  be  remanded  to  the  criminal  court  of 
Cook  county. 

Judgment  reversed. ^°^ 

102  statement  condensed  and  part  of  opinion  omitted. 

108  See  Qulnn  v.  People,  51  Colo.  350,  117  Pac.  996,  40  L.  R.  A.  (N.  S.)  470 
(1911),  suggesting  that  whether  a  person  was  under  age  might  be  determined 


Sec.  4)  PHYSICAL  OBJECTS  931 


HANAWAIvT  V.  STATE. 

(Supreme  Court  of  Wisconsin,  1885.     64  Wis.  84,  24  N.  W.  489,  54  Am. 

Rep.  588.) 

Taylor,  J.  This  was  an  action  to  charge  the  plaintiff  in  error  with 
the  support  and  maintenance  of  a  bastard  child.  On  the  trial  in  the 
circuit  court  the  state  was  permitted,  against  the  objection  of  the  plain- 
tiff in  error,  to  bring  into  court,  and  exhibit  to  the  jurors  for  their  in- 
spection, as  evidence  in  the  case,  the  child  of  which  he  was  charged 
with  being  the  father;  such  child  then  being  less  than  one  year  old. 
This  is  assigned  as  error  in  this  court.  The  plaintiff  also  assigns  as 
error  that  the  counsel  for  the  state  was  permitted  to  comment  to  the 
jury  and  draw  their  attention  to  the  alleged  similarity  of  the  ears  of  the 
child  to  the  ears  of  the  plaintiff  in  error,  as  well  as  to  the  ears  of  the 
plaintift"s  father,  who  was  also  in  court,  and  in  the  presence  of  the 
jury,  the  child,  at  the  time,  being  absent.  Upon  the  question  of  the 
propriety  of  exhibiting  the  child  to  the  jury  as  evidence  in  cases  in- 
volving its  paternity,  the  decisions  of  the  courts  are  not  in  harmony. 
In  North  Carolina  the  supreme  court  of  that  state  hold  that  such  ex- 
hibitions mav  properly  be  mxade.  See  State  v.  Woodruff,  67  N.  C.  89 ; 
State  V.  Britt,  78  N.'C.  439;  Warlick  v.  White,  76  N.  C.  175;  and 
State  V.  Bowles,  52  N.  C.  579.  The  same  was  held  by  the  supreme 
court  of  Iowa  in  State  v.  Smith,  54  Iowa,  104,  6  N.  W.  153,  37  Am. 
Rep.  192.  In  this  last  case  the  child  was  over  tsvo  years  old;  but,  in 
the  case  of  State  v.  Danforth,  48  Iowa,  43,  30  Am.  Rep.  387,  the  same 
court  held  it  was  improper  to  exhibit  to  the  jury  a  child  only  three 
months  old.  In  Eddy  v.  Gray,  4  Allen  (Mass.)  435,  Jones  v.  Jones, 
45  j\Id.  144,  and  Keniston  v.  Rowe,  16  IMe.  38,  the  court  hold  that  testi- 
mony of  witnesses  that  the  child  looks  like  or  resembles  in  appearance 
the  person  charged  to  be  the  father  is  not  admissible,  and  in  Reitz  v. 
State,  33  Ind.  187,  and  Risk  v.  State,  19  Ind.  152,  it  was  held  error 
to  allow  the  prosecution  to  give  the  child  in  evidence,  so  that  the 
jury  might  compare  it  with  the  defendant  who  was  present  in  court. 

In  the  Douglas  Case,  Lord  ^^lansfield  is  reported  as  saying:  '*I 
have  always  considered  likeness  as  an  argument  of  a  child's  being  the 
son  of  a  parent ;  and  the  rather  as  the  distinction  between  individuals  in 
the  human  species  is  more  discernible  than  in  other  animals.  A  man 
may  survey  ten  thousand  people  before  he  sees  two  faces  perfectly 
alike,  and  in  an  army  of  a  hundred  thousand  men  every  one  may  be 
known  from  another.  If  there  should  be  a  likeness  of  feature,  there 
may  be  a  discriminancy  of  voice,  a  difference  in  the  gestures,  the 

in  some  cases  by  mere  inspection,  but  not  unless  attention  was  called  to  the 
matter,  and  bence  where  nothing  appeared  beyond  the  fact  tbat  the  alleged 
minor  was  before  the  jury  a  general  verdict  could  not  be  supported. 
•  It  would  seem  that  appellate  courts  might  assume  that  the  trial  judge 
could  use  his  eyes  and  determine  whether  there  was  any  real  questioD  which 
required  something  more  than  inspection. 


932  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

smile,  and  various  other  things,  whereas  a  family  likeness  runs  general- 
ly through  all  these,  for  in  everything  there  is  a  resemblance ;  as  of  fea- 
tures, size,  attitude,  and  action."  This  language  attributed  to  Lord 
Mansfield  is  taken  from  Wills  on  Circumstantial  Evidence,  p.  123. 
This  author,  on  the  next  page,  says  that  in  a  Scotch  case,  when  the 
question  was  who  was  the  father  of  a  certain  woman,  an  allegation  that 
she  had  a  strong  resemblance  in  the  features  of  the  face  to  one  of  the 
tenants  of  the  alleged  father  was  held  not  to  be  relevant  as  being  too 
much  a  matter  of  fancy  and  of  opinion  to  form  a  material  article  of  evi- 
dence. In  the  case  of  Jones  v.  Jones,  supra,  the  learned  judge  who 
wrote  the  opinion  refers  to  the  language  used  by  Lord  Mansfield  in  the 
Douglas  Case,  and  disapproves  of  it  as  authority,  and  thinks  it  has  not 
been  followed  as  a  precedent  in  the  English  courts ;  and  he  quotes  with 
approval  the  language  of  Justice  Heath  in  the  case  of  Day  v.  Day,  de- 
cided in  1797,  in  which  the  learned  judge  stated  to  the  jury  "that  resem- 
blance is  frequently  exceedingly  fanciful,  and  he  therefore  cautioned 
the  jury  as  to  the  manner  of  considering  such  evidence."  The  learned 
judge  in  the  case  of  Jones  v.  Jones,  supra,  in  disapproving  of  the  lan- 
guage used  by  Lord  Mansfield,  says :  "We  all  know  that  nothing  is 
more  notional  in  the  great  majority  of  cases.  What  is  taken  as  a  re- 
semblance by  one  is  not  perceived  by  another  with  equal  knowledge  of 
the  parties  between  whom  the  resemblance  is  supposed  to  exist." 

It  should  be  remembered  that  in  the  Douglas  Case,  and  the  Maryland 
case,  the  question  of  parentage  was  as  to  a  person  who  was  full  grown. 
So  that  if  there  is  anything  certain  in  family  likeness  it  would  be  fully 
developed,  and  if  in  any  case  such  claimed  likeness  could  be  consid- 
ered by  a  jury  in  determining  the  question  of  parentage,  it  would  be  in 
a  case  of  that  kind.  In  the  case  of  Jones  v.  Jones,  the  court  seemed  to 
be  of  the  opinion  that,  "when  the  parties  are  before  the  jury,  and  they 
can  make  the  comparison  for  themselves,  whatever  resemblance  is  dis- 
covered may  be  a  circumstance,  in  connection  with  others,  to  be  consid- 
ered." In  any  case  this  kind  of  evidence  is  inherently  unsatisfactory, 
as  it  is  a  matter  of  general  knowledge  that  different  persons,  with  equal 
opportunities  of  observation,  will  arrive  at  different  conclusions,  even 
in  the  case  of  mature  persons,  where  a  family  likeness  will  be  fully 
developed  if  there  be'  any.  And  when  applied  to  the  immature  child  its 
worthlessness  as  evidence  to  establish  the  fact  of  parentage  is  greatly 
enhanced,  and  is  of  too  vague,  uncertain,  and  fanciful  a  nature  to  be 
submitted  to  the  consideration  of  a  jury. 

The  learned  author  of  "Beck's  Medical  Jurisprudence"  says:  "It 
has  been  suggested  that  the  resemblance  of  a  child  to  the  supposed  fa- 
ther might  aid  in  deciding  doubtful  cases.  This,  however,  is  a  very 
uncertain  source  of  reliance.  We  daily  observe  the  most  striking  dif- 
ferences in  physical  traits  between  parent  and  child,  while  individuals 
born  in  different  parts  of  the  globe  have  been  mistaken  for  each  other. 
And  even  as  to  malformations,  although  some  remarkable  resemblances 
in  this  respect  have  been  noticed  between  father  and  child,  yet  we 


Sec.  4)  PHYSICAL  OBJECTS  933 

should  act  unwisely  in  relying  too  much  on  them.  There  is,  however,  a 
circumstance  connected  with  this  which,  when  present,  should  certainly 
defeat  the  presumption  that  the  husband  or  paramour  is  the  father  of 
the  child,  and  that  is  when  the  appearance  of  the  child  evidently  proves 
that  its  father  must  have  been  of  a  different  race  from  the  husband 
or  paramour,  as  when"  a  mulatto  is  born  of  a  white  woman  whose  hus- 
band is  also  white,  or  of  a  black  woman  whose  husband  is  a  negro." 
In  a  case  where  the  question  of  race  is  concerned,  the  child  may  be  ex- 
hibited for  the  purpose  of  showing  that  it  is  or  is  not  of  the  race  of 
its  alleged  father.  Warlick  v.  White,  76  N.  C.  175.  In  a  case  like  the 
one  at  bar,  we  think  no  exhibition  should  be  made. 

Justice  Lyon,  in  the  case  of  Washburn  v.  Railroad  Co.,  59  Wis.  364- 
370,  18  N.  W.  328,  says :  "To  allow  jurors  to  make  up  their  verdict  on 
their  individual  knowledge  of  disputed  facts  material  to  the  case,  not 
testified  to  by  them  in  court,  or  upon  their  private  opinions,  would  be 
most  dangerous  and  unjust.  It  would  deprive  the  losing  party  of  the 
right  of  cross-examination  and  the  benefits  of  all  the  tests  of  credibility 
which  the  law  affords.  Besides,  the  evidence  of  such  knowledge  or 
the  grounds  of  such  opinions  cannot  be  preserved  in  a  bill  of  excep- 
tions or  questioned  on  appeal.  It  would  make  each  juror  the  absolute 
judge  of  the  accuracy  and  value  of  his  own  knowledge  or  opinions,  and 
compel  the  appellate  court  to  affirm  judgments  on  the  facts  when  all 
the  evidence  is  before  it,  and  there  is  none  whatever  to  support  the 
judgment."  This  reasoning  clearly  shows  the  impropriety  of  permit- 
ting the  jury  to  base  their  judgment,  in  whole  or  in  part,  upon  their 
inspection  of  the  child  exhibited  to  them  in  court.  If  the  child  itself, 
when  presented  to  the  jury  for  inspection,  is  or  may  be  evidence  tend- 
ing to  prove  its  parentage,  then  tliis  court  upon  appeal  could  not  reverse 
their  verdict,  although  the  written  bill  of  exceptions  entirely  fail  to 
support  such  verdict,  for  the  reason  that  this  court  would  not  have  be- 
fore it  all  the  evidence  in  the  case  upon  which  the  jury  acted. 

The  learned  attorney  general  says  the  bill  of  exceptions  does  not 
show  that  the  child  was  exhibited  to  the  jury  as  evidence  in  the  case. 
In  this  he  appears  to  be  mistaken,  as,  in  the  part  of  the  bill  of  excep- 
tions which  follows  the  reporter's  notes  of  the  evidence,  it  is  clearly 
stated  tiiat  "in  course  of  the  trial  the  plaintiff  produced  in  court  the 
child  claimed  to  have  been  begotten  by  the  defendant,  and  proposed  to 
exhibit  the  same  to  the  jury  as  evidence  that  it  was  the  defendant's 
child.  The  defendant  objected,  and  the  court  ruled  that  the  child 
might  be  exhibited  in  evidence,  but  that  no  comments  should  be  made." 
This  statement,  it  will  be  seen,  is  made  a  part  of  the  bill  of  exceptions. 

The  comments  made  by  the  counsel  for  the  state  to  the  jury  in  his 
argument,  calling  the  attention  of  the  jury  to  a  peculiarity  of  the  ears 
of  the  defendant  and  of  his  father,  and  his  assertion  that  the  child  had 
the  same  peculiarity  as  to  the  ears,  in  tlie  absence  of  the  child,  and 
without  its  appearing  that  the  attention  of  the  jury  had  been  before 
called  to  such  alleged  peculiarity  of  the  ears  of  the  child,  the  defendant, 


934  CIRCUMSTANTIAL  EVIDENCE  (Ch.  5 

or  his  father,  was  highly  improper  and  was  hkely  to  prejudice  the 
rights  of  the  defendant.  This  impropriety  on  the  part  of  the  prosecut- 
ing attorney  might,  in  itself,  be  sufficient  ground  for  a  reversal  of  the 
judgment,  in  the  absence  of  any  direction  on  the  part  of  the  presiding 
judge  to  the  jury  to  disregard  entirely  the  statements  so  made  by  the 
counsel,  and  a  clear  statement  to  the  jury  by  such  judge  of  the  im- 
propriety of  such  comments  on  the  part  of  the  counsel  in  his  argument. 

For  the  errors  in  permitting  the  child  to  be  exhibited  to  the  jury  as 
evidence  in  the  case,  tending  to  prove  its  paternity,  and  on  account 
of  the  impropriety  of  the  counsel  for  the  prosecution  in  calling  the 
attention  of  the  jury  to  the  alleged  peculiarity  of  the  child,  the  defend- 
ant's, and  his  father's  ears,  as  above  set  forth,  the  judgment  of  the 
circuit  court  must  be  reversed. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause  is  re- 
manded for  a  new  trial. 


STATE  ex  rel.  RISON  v.  BROWNING. 
(Supreme  Couft  of  Kansas,  1915.    96  Kan.  540,  152  Pac.  672.) 

BuRCH,  J.  The  proceeding  was  one  for  bastardy.  The  defend- 
ant was  found  guilty,  and  the  principal  errors  assigned  are  that  the 
child  was  exhibited  to  the  jury  as  evidence  in  the  case,  and  that  the 
county  attorney  in  his  closing  argument  discussed  the  subject  of  its 
resemblance  to  the  defendant. 

The  child  was  born  on  December  24,  1913,  and  the  trial  occurred  on 
May  11,  1914.  There  are  instances  in  which  physical  characteristics 
of  a  father  are  stamped  upon  his  child  so  definitely  that  they  distinctly 
appear  at  birth,  or  even  before  birth.  In  some  instances  resemblances 
may  not  appear  until  late  in  the  course  of  the  child's  independent  de- 
velopment, and  in  still  other  instances  resemblances  may  never  ap- 
pear with  recognizable  certainty.  Sometimes  a  child  may  strongly 
resemble  one  not  its  father,  and  not  related  to  it.  The  result  is  that 
the  evidence  of  paternity  furnished  by  the  features  of  the  child  may 
be  strong  or  weak,  or  inconclusive,  or  worthless. 

No  arbitrary  age  limit  for  the  exhibition  of  a  child  in  evidence  can 
be  fixed,  because  maturity  and  permanence  of  feature  may  be  of  slow 
or  of  rapid  attainment,  and  because  marked  resemblances  appearing 
early  may  fade  with  the  changes  incident  to  growth.  There  is  no  other 
test  that  can  be  applied,  and  it  becomes  the  province  of  the  trial  court 
to  exercise  its  discretion  in  the  matter.  If  in  the  judgment  of  the  trial 
court  the  exhibition  of  the  child  to  the  jury  would  appreciably  tend 
to  promote  the  purpose  of  the  proceeding,  the  exhibition  should  be  per- 
mitted. If,  however,  the  trial  court  siiould  be  satisfied  that  no  substan- 
tial advancement  toward  the  truth  would  result  from  the  exhibition,  it 
should  be  forbidden. 


Sec.  4)  PHYSICAL  OBJECTS  935 

An  exercise  of  the  trial  court's  discretion  can  seldom  be  reviewed 
by  this  court,  because  it  can  seldom  be  shown  either  that  power  was 
abused  or  that  prejudice  resulted.  Like  a  scene  viewed  by  the  jury  or 
the  demeanor  of  a  witness  while  testifying,  the  matter  cannot  be  pre- 
sented to  this  court  in  such  a  way  that  it  is  authorized  to  substitute 
its  judgment  for  that  of  the  district  court.  Should  it  be  admitted  that 
the  evidence  was  weak,  or  inconclusive,  or  worthless,  the  presump- 
tion would  be  that  the  jury  appreciated  the  fact,  and  gave  it  no  more 
weight  than  it  was  entitled  to  receive. 

Substantially  the  foregoing  conclusions  respecting  the  authority  of 
the  trial  court  and  the  attitude  of  this  court  toward  an  exercise  of  such 
authority  were  reached  in  the  case  of  Shorten  v.  Judd,  56  Kan.  43,  48, 
42  Pac.  ZZ7,  338,  54  Am.  St.  Rep.  587,  in  which  it  was  said : 

"While  in  most  cases  evidence  of  family  resemblance  by  view  and 
comparison  of  the  jury  is  of  little  value  in  proof  of  parentage,  yet 
it  has  often  been  held  admissible  where  the  child  has  attained  an  age 
when  its  features  have  assumed  some  degree  of  maturity  and  perma- 
nency. Where  the  child  is  a  young  infant,  it  has  been  held  best  not 
to  exhibit  it  to  the  jury.  Much  must  be  left  to  the  discretion  of  the 
trial  court,  however,  as  to  the  proper  age,  and  we  would  not  feel  war- 
ranted in  a  reversal  of  the  judgment  in  this  case  on  account  of  the 
child's  appearance  before  the  jury." 

Whenever  the  child  is  exhibited  to  the  jury  as  proof  of  paternity, 
counsel  are  at  liberty  to  discuss  the  subject. 

The  judgment  of  the  district  court  is  affirmed.  All  the  Justices  con- 
curring.^"* 


WAGNER  V.  CHICAGO,  R.  I.  &  P.  RY.  CO. 

(Supreme  Court  of  Illinois,  1917.    277  111.  114,  115  N.  E.  201.) 

Cart  WRIGHT,  J.^°'  *  *  *  The  action  was  for  damages  in  the 
loss  of  a  part  of  the  plaintiff's  foot  while  coupling  cars  as  foreman  of 
a  switching  crew  in  the  service  of  the  defendant.     *     *     * 

The  court  permitted  the  plaintiff  to  exhibit  his  foot  to  the  jury,  and 
also  to  exhibit  the  shoe  which  he  wore  at  the  time  of  the  accident 
and  to  offer  the  shoe  in  evidence.  Whether  one  who  is  injured  may 
exhibit  an  injured  member  to  the  jury  is  primarily  in  the  discretion  of 
the  trial  court,  and  it  is  properly  exercised  in  any  case  where  the  per- 
sonal view  will  aid  the  jury  in  understanding  the  evidence,  and  that 
may  be  so  where  there  is  no  controversy  concerning  the  injury  nor 
the  extent  of  it,  as  was  the  fact  in  this  case.     Chicago  &  Alton  Rail- 

104  Contra:  In  case  of  a  child  three  months  old,  Flores  v.  State  (Fla.)  7;{ 
South.  234,  L.  R.  A.  1917B,  1143  (1910),  annotated. 

See  People  v.  Kingcannon.  276  111.  251,  114  N.  E.  508  (1916).  admitting  proof 
that  a  child  and  its  alleged  father  had  similar  malformations  of  the  hand. 

106  Part  of  opinion  omitted. 


936  CIRCUMSTANTIAL  EVIDENCE  (Cll.  5 

road  Co.  v.  Clausen,  173  '111.  100,  50  N.  E.  680.  Where,  however,  the 
only  purpose  and  effect  of  an  exhibition  of  that  kind  is  to  excite 
feeling  rather  than  to  enlighten  the  jury  as  to  any  fact  or  to  aid  in 
settling  any  disputed  question  of  fact,  it  should  not  be  permitted. 
In  this  case  there  was  not  only  no  controversy  concerning  the  injury 
nor  the  extent  of  it,  as  was  stated  at  the  time  of  the  proposed  exhibi- 
tion, but  the  evident  purpose  was  to  excite  in  the  minds  of  the  jury 
pity  and  commiseration  for  the  condition  of  the  plaintiff  and  thereby 
to  increase  the  damages.  The  exhibition  for  the  purpose  which  the 
record  shows  was  intended  should  not  have  been  allowed,  and  if  it  now 
appeared  that  the  damages  allowed  were  excessive  it  would  be  neces- 
sary to  reverse  the  judgment.  In  view,  however,  of  the  amount  of  the 
recovery,  it  would  seem  that  substantial  injury  did  not  result  from 
what  was  done.  *  *  * 
Judgment  affirmed.^"" 

106  See  Evans  v.  Chicago,  M.  &  St.  P.  R.  Co.,  133  Minn.  293,  158  N.  W.  .335 
(1916).  where  a  new  trial  was  granted  because  the  court  permitted  plaintiff's 
amputated  hand  to  be  shown  to  the  jury.  And  so  in  Melton  v.  State,  47  Tex. 
Cr.  R.  451,  S3  S.  W.  822  (1904),  where  the  widow  was  permitted  to  make  a 
dramatic  display  of  blood-stained  clothing  worn  by  the  deceased. 


Sec.  1)  THE  BEST  EVIDENCH  937 

CHAPTER  VI 
THE  BEST  EVIDENCE 


SECTION  1.— CONTENTS  OF  A  DOCUMENT 


DOCTOR  LEYFIELD'S  CASE. 

(Court  of  the  Exchequer,  1611.    10  Coke,  88a.) 

John  Leyfield,  Doctor  of  Divinity,  brought  an  action  of  trespass  in 
the  King's  Bench,  Hil.  8  Jac.  Regis,  Rot.  1282,  against  Henry  Hillary, 
for  corn  and  hay  taken  and  carried  away  at  Old  Cleve  in  the  county 
of  Somerset.  The  defendant  pleaded  in  bar,  that  Queen  Elizabeth 
was  seised  of  the  Rectory  of  Old  Cleve  in  the  same  county  in  her 
demesne  as  of  fee,  as  in  right  of  the  Crown  of  England;  and  by  her 
letters  patent  20  Junii  35  of  her  reign  (without  saying  [1  Bulstr.  154. 
Cr.  Jac.  317.  2  Roll.  Rep.  172,  191.  1  Rol.  Rep.  221.  5  Co.  74a.  Lane, 
32]  "here  shewed  forth")  demised  the  said  rectory  to  Conand  Prowse 
for  his  hfe,  who  16  Jan.  anno.  3  Jac.  Regis  demised  the  said  rectory 
to  George  Pincomb  for  eight  years,  if  the  said  Conand  tarn  diu  viver- 
et;  and  that  the  defendant  as  servant  to  the  said  George,  took  the 
com  and  hay  as  tithes  severed  from  the  nine  parts,  ar»d  averred  the 
life  of  the  said  Conand:  upon  which  the  plaintiff  demurred  in  law, 
and  shewed  the  cause  of  his  demurrer,  because  the  defendant's  plea 
amounted  to  the  (Winch.  20.  Jenkins  Cent.  133)  general  issue.  And  it 
was  adjudged  in  the  King's  Bench,  that  tlie  bar  was  insufficient,  be- 
cause the  defendant  in  his  plea  (Cr.  Eliz.  146,  217.  1  Leon.  178.  1 
Bulstr.  155.  Cr.  Jac.  317.  Lit.  Rep.  306)  did  not  shew  the  Court 
the  letters  patent  of  Queen  Elizabeth  made  to  Conand  Prowse,  which 
the  Court  took  to  be  matter  of  (Co.  Lit.  72a.)  substance,  and  which  the 
defendant  ought  to  have  shewed  forth,  although  he,  in  whose  right 
he  justified,  had  but  part  of  the  estate.  Whereupon  a  writ  of  error 
was  brought  in  the  Exchequer-Chamber,  and  there  two  errors  were 
moved.  ^     *     *     * 

As  to  the  other  error  which  was  assigned,  the  said  two  points  were 
argued.  1.  If  the  letters  patent  ought  to  be  shewed  by  the  defendant, 
who  justifies  as  servant  to  him  who  has  but  parcel  of  tlie  estate  of 
him  to  whom  the  letters  patent  were  granted.  2.  Admitting  that  he 
ought  to  shew  them,  if  the  omission  of  this  clause  (Cur'  hie  porlat') 
be  matter  of  substance  or  matter  of  form;   for  if  it  be  but  matter  of 

1  Part  of  report  of  case  omitted. 


938  THE  BEST  EVIDENCE  (Ch.  6 

form,  then  forasmuch  as  the  plaintiff  has  not  shewed  it  particularly 
and  expressly  for  this  cause  of  demurrer,  he  shall  not  take  advantage 
of  it  by  the  said  statute  of  27  El.  cap.  5.    And  as  to  the  first,  Austin's 
Case,  in  1  &  2  P.  &  M.  E\y.  115,  was  cited,  where  in  an  information  of 
intrusion  in  the  manor  of  East  Farleigh  in  Kent,  the  defendant  pleaded 
the  letters  patent  of  King  Henry  8.  to  Sir  Thomas  Wyat  in  tail,  and  that 
Sir  Thomas  leased  to  him  for  thirty-six  years,  without  shewing  forth 
to  the  Court  the  letters  patent;    and  the  Lord  Dyer  in  reporting  the 
case,  saith,  nota  hoc ;  and  this  stands,  as  it  was  said,  upon  great  reason, 
for  the  lessee  having  but  parcel  of  the  estate,  the  letters  patent  do  not 
belong  to  him,  but  to  his  lessor,  and  therewith  agrees  29  Ass.  p.  2, 
J.  Eatbread's  Case,  and  the  reason  there  given,  is,  because  the  patent 
doth  not  remain  with  him  who  has  but  parcel  of  the  estate.    And  in 
28  H.  8,  Dy.  29  b,  in  trespass  the  defendant  said,  that  the  place  where, 
was  ten  acres  of  land,  whereof  the  King  was  seised  in  fee  in  the  right 
of  his  Crown ;   and  by  his  letters  patent  granted  the  land  to  the  Lady 
Carew  for  term  of  Hfe,  who  leased  to  the  defendant  for  years,  and 
averred  the  life  of  the  first  lessee,  and  so  justified,  and  it  was  moved 
if  the  plea  was  good  without  shewing  the  first  letters  patent;   and  it 
was  held  by  Brown,  Willowby,  and  Baldwin,  that  he  shall  not  be  com- 
pelled to  shew  them,  because  the  letters  patent  do  not  belong  to  him, 
no  more  than  a  sub-collector,  under-sheriff  or  incumbent,  because  they 
have  not  any  means  to  make  their  grantors  or  masters  shew  them: 
and  by  them  there  is  a  difference,  when  the  patentee  grants  over  his 
whole  interest,  there  the  patent  belongs  to  him,  and  therefore  he  shall 
shew  it-  forth,  but  when  he  grants  by  parcel,  it  is  otherwise :  and  with 
the  case  of  th^  incumbent  agree  31  E.  3.    Monstrans  des  Faits  177  & 
31  H.  6,  14,  and  the  case  of  the  sub-collector  and  under-sheriff,  22  H. 
7,  42  a.'&  3.     1  H.  6,  14  b.  12  E.  3.    Monstrans  de  Faits  65.    A  sub- 
taxer  shall  justify  the  taking  of  goods  without  shewing  the  commis- 
sion;    but  if  a  man  will  justify  the  imprisonment  of  the  body  of  a 
man  by  warrant,  he  ought  to  shew  the  warrant. 

But  it  was  resolved,  that  the  lessee  for  years  in  the  case  at  Bar 
ought  to  shew  the  letters  patent  made  to  tlie  lessee  for  life:  for  it 
is  a  maxim  in  the  law,  that  if  he  who  is  party  or  privy  in  estate,  or 
interest,  or  he  who  justifies  in  the  right  of  him  who  is  party  or  privy 
pleads  a  deed,  although  he  who  is  privy  claims  but  parcel  of  the  original 
estate,  yet  he  ought  to  shew  the  original  deed  to  the  Court. 

And  the  reason  that  deeds  being  so  pleaded  shall  be  shewed  to  the 
Court,  is,  that  to  every  deed  two  things  are  requisite  and  necessary; 
the  one,  that  it  be  sufficient  in  law,  and  that  is  called  the  legal  part, 
because  the  judgment  of  that  belongs  to  the  Judges  of  tlie  law;  the 
other  concerns  matter  of  fact,  sc.  if  it  be  sealed  and  delivered  as  a 
deed,  and  the  trial  thereof  belongs  to  the  country.  And  therefore 
every  deed  ought  to  approve  itself,  and  to  be  proved  by  others ;  ap- 
prove itself  upon  its  shewing  forth  to  the  Court  in  two  manners.  1. 
As  to  the  composition  of  tlie  words  to  be  sufficient  in  Uw,  and  the 


Sec.  1)  CONTENTS  OF  A    DOCUMENT  939 

Court  shall  judge  that.  2.  That  it  be  not  razed  or  interlined  in  ma- 
terial points  or  places,  and  upon  that  also  in  ancient  time  the  Judges 
did  judge  upon  tlieir  view,  the  deed  to  be  void,  as  appears  in  7  E.  3, 
'57.  25  E.  3,  41.  41  E.  3,  10.  &c.  but  of  late  times  the  Judges  have 
left  that  to  be  tried  by  the  jury,  s.  if  the  razing  or  interlining  was 
before  the  delivery.  3.  That  it  may  appear  to  the  Court  and  to  the 
party,  if  it  was  upon  condition,  limitation,  or  with  power  of  revocation, 
&c.  to  the  intent  that  if  there  be  a  condition,  limitation,  or  power  of 
a  revocation  in  the  deed,  if  tlie  deed  be  poll,  or  if  there  wants  a 
counterpart  of  the  indenture,  the  other  party  may  take  advantage  of  the 
condition,  limitation,  or  power  of  revocation,  and  therewith  Litt.  c. 
Conditions,  f.  90  &  91,  40  Ass.  34,  agree.  And  these  are  the  reasons  of 
the  law,  that  deeds  pleaded  in  Court,  shall  be  shewed  forth  to  the 
Court.  And  therefore  it  appears,  that  it  is  dangerous  to  suffer  any 
who  by  the  law  in  pleading  ought  to  shew  the  deed  itself  to  the  Court, 
upon  the  general  issue  to  prove  in  evidence  to  the  jury  by  witnesses 
that  there  was  such  a  deed,  which  they  have  heard  and  read;  or  to 
prove  it  by  a  copy,  for  the  viciousness,  rasures,  or  interlineations,  or 
other  imperfections  in  these  cases,  will  not  appear  to  the  Court;  or 
peradventure  the  deed  may  be  upon  condition,  limitation,  with  power 
of  revocation,  and  by  this  way  truth  and  justice,  and  tlie  true  reason 
of  the  common  law  would  be  subverted.  But  yet  in  great  and  notori- 
ous extremities,  as  by  casualty  of  fire,  that  all  his  evidences  were 
burnt  in  his  house,  there  if  that  should  appear  to  the  Judges,  they  may, 
in  favour  of  him  who  has  so  great  a  loss  by  fire,  suffer  him  upon  the 
general  issue  to  prove  the  deed  in  evidence  to  the  jury  by  witnesses, 
that  affliction  be  not  added  to  affliction ;  and  if  the  jury  find  it,  al- 
though it  be  not  shewed  forth  in  evidence,  it  shall  be  good  enough, 
as  appears  in  28  Ass.  p.  3,  but  in  12  Ass.  p.  16,  the  Judges  would  not 
suffer  a  deed  to  be  given  in  evidence  which  was  not  shewed  forth  to 
the  jury.  Vide  26  Ass.  p.  2,  the  like.  But  the  copy  of  a  record  may 
be  shewed  and  given  in  evidence  to  the  jury  for  records  are  of  so  high 
a  nature,  and  such  credit  in  law,  that  they  cannot  be  proved  by  other 
means  than  by  themselves  and  no  rasure  or  interlineations  shall  be 
intended  in  them.  And  therefore  a  copy  of  a  record  being  testified  to 
be  true,  is  permitted  to  be  given  in  evidence ;  but  the  sure  way  is,  to 
exemplify  it  under  tlie  Great  Seal,  or  at  least  under  the  seal  of  the 
Court.  And  in  the  said  case  of  casualty  by  fire  there  ought  to  be  great 
care  and  discretion  in  the  Judges,  for  notwithstanding  any  sucli  casu- 
alty by  fire,  he  in  pleading  ought  to  shew  forth  the  deed  to  the  Court, 
otherwise  his  plea  will  be  insufficient  and  judgment  shall  be  given 
against  him  ;  for  the  law  will  rather  suffer  a  mischief  in  a  private  case, 
than  an  inconvenience,  which  by  the  breaking  of  the  rule  of  law, 
should  be  brought  upon  the  public.  Also  the  deed  ought  not  only,  as 
hath  been  said,  to  approve  itself,  but  it  ought  to  be  proved  by  others, 
sc,  by  witnesses,  that  it  was  sealed  and  delivered ;  for  otherwise  al- 
tliough  the  fabric  and  composition  of  the  deed  be  legal,  yet  without 


D40  THE  BEST  EVIDENCE  (Cll.  fi 

the  other  it  is  of  no  effect;    and  all  of  this  which  has  been  said  of 
deeds,  as  to  the  legal  part,  may  be  also  affirmed  of  the  King's  letters 
patent.     *     *     * 
Judgment  affirmed.^ 


SIR  EDWARD  SEYMOUR'S  CASE. 

(Court  of  Queen's  Bench,  1711.     10  Mod.  8.) 

In  a  trial  of  ejectment  between  Sir  Edward  Seymour  and  his  mother- 
in-law,  the  Court  allowed  tlie  contents  of  a  deed  to  be  given  in  evidence, 
by  witnesses ;  nay  witnesses  who  put  the  contents  of  die  deed  in  writ- 
ing upon  memory,  four  or  five  days  after  reading  the  deed. 

The  Court  seemed  of  opinion,  that  in  case  a  deed  was  lost  by  some 
inevitable  accident,  that  there  it  might  be  proved  by  a  copy.  But  in 
case  there  was  no  copy,  the  contents  of  it  could  not  be  proved  from 
the  memory  of  those  that  knew  the  deed;  and  though  it  were  hard  for 
a  man  that  had  no  copy,  to  lose  the  benefit  of  his  deed,  yet  the  incon- 
veniences of  admitting  that  sort  of  evidence  would  be  greater. 

But  here  the  opinion  of  the  Court  was  founded  upon  a  particular 
reason,  for  the  deed  by  which  the  plaintiff  was  to  prove  his  title  was 
not  lost,  but  proved  to  be  in  the  hands  of  the  defendant;  so  that  in 
this  case  the  danger  of  allowing  this  sort  of  evidence  was  none  at  all ; 
for  if  the  defendant  was  wronged  by  the  parol  evidence,  it  was  in  his 
power  to  set  all  right  by  producing  the  deed. 


JONES  V.  RANDALL. 

(Court  of  King's  Bench,  1774.    1  Cowp.  17.) 

This  was  an  action  upon  a  wager,  whether  a  decree  of  the  court  of 
Chancery  would  or  would  not  be  reversed  in  tlie  house  of  lords? 
Verdict  for  the  plaintiff,  damages  fifty  guineas. 

Upon  a  rule  to  shew  cause,  why  there  should  not  be  a  new  trial  in 
this  case,  three  objections  were  made  to  the  sufficiency  of  the  evidence 
given  at  the  trial.  1st.  That  a  copy  of  the  reversal  only,  and  not  the 
minute  book  itself,  was  produced.    2dly.    If  such  copy  was  admissible, 

2  After  the  rule  became  settled  that  the  accidental  destruction  of  a  deed 
was  a  sufficient  excuse  for  its  uonproduction  in  evidence,  it  was  inevitable 
that  the  same  situation  should  be  recognized  as  an  excuse  for  failure  to  make 
;)rofert  in  pleading.    Kead  v.  lirocknian,  3  Term  II.  151  (1780). 

By  the  middle  of  the  eightoonlh  century,  the  rule  rc(juh-ing  the  production 
of  the  original  instrument  was  understood  to  cover  unsealed  writings  as  well 
as  sealed,  and  without  regard  to  whether  they  formed  the  basis  of  the  action 
or  defense,  or  were  merely  used  for  some  subsidiary  pur^jose.  Cole  v.  Gib- 
son, 1  Ves.  new  (17.'/)). 

'J'he  same  rule  came  to  bo  applied  to  criminal  cases.  Atty.  Geu.  v.  Le  Mer- 
<;hant,  2  Term  R.  201  (1772). 


Sec.  1)  CONTENTS  OP  A    DOCUMENT  941 

yet  it  ought  to  have  been  upon  stamps.  3dly.  That  the  previous  pro- 
ceedings ought  to  have  been  shewn,  whereas  the  decree  only  was  pro- 
duced. 

Lord  Mansfield.^  The  minutes  of  the  judgment  are  the  solemn 
judgment  itself:  not  a  word  is  added  upon  tiie  journals:  and  a  copy 
of  them  may  certainly  be  read  in  evidence ;  for  the  inconvenience  would 
be  endless,  if  the  journals  of  the  house  of  lords  were  to  be  carried  all 
over  the  kingdom.  As  to  such  copy  being  upon  stamps,  it  was  decided 
in  Queen  Anne's  time  by  the  opinion  of  all  the  judges  of  England, 
that  copies  of  the  proceedings  of  parliament  need  not  be  stamped. 
Formerly  a  doubt  was  entertained,  whether  the  minutes  of  the  House 
of  Commons  were  admissible,  because  it  is  not  a  court  of  record ;  but 
the  journals  of  the  House  of  Lords  have  always  been  admitted,  even  in 
criminal  cases. 

Rule  discharged.* 


JORY  V.  ORCHARD. 
(Court  of  Common  Pleas,  1799.    2  Bos.  &  P.  39.) 

Trespass  for  taking  and  driving  away  the  Plaintiff's  cattle. 

The  cause  was  tried  before  Grose,  J.,  at  the  last  Summer  assizes  for 
Cornwall,  when  it  appeared,  that  the  Defendant  took  the  cattle  as  a 
distress  for  non-payment  of  a  poor-rate,  by  virtue  of  a  warrant  from 
a  magistrate,  which  was  produced  and  read.  The  counsel  for  the  De- 
fendant then  called  on  the  Plaintiff  to  prove  a  demand  of  a  copy  of  the 
warrant  pursuant  to  24  Geo.  2,  c.  44,  s.  6,°  upon  which  a  paper  was  pro- 
duced by  a  witness,  who  swore  that  it  was  a  copy  of  the  demand  of  the 
warrant.  It  was  objected,  however,  that  such  copy  would  not  be  read 
in  evidence  without  proof  of  notice  given  to  the  Defendant  to  produce 
the  original ;  in  answer  to  which  it  was  shewn,  that  the  Plaintiff's  attor- 

3  Opinion  of  Ashton,  J.,  omitted. 

*  And  so  in  case  of  the  books  of  the  Bank  of  England.    Mortimer  v.  McCal- 1\ 
Ian,  6  M.  &  W.  58  (1840),  where  the  court  announced  the  rule  as  applying  gen- " 
erally  to  all  public  and  official  records.     In  such  cases  it  seems  that  a  copy 
may  be  used,  though  in  the  particular  instance  the  original  might  be  pro- 
duced without  inconvenience.     Marsh  v.  Collnett,  2  Esp.  665  (ITOS). 

In  Owner  v.  Bee  Hive  Spinning  Co.,  [1914]  1  K.  B.  105,  the  court  invoked 
the  principle  of  inconvenience  to  excuse  the  production  of  a  printed  notice  re- 
quired to  be  kept  posted  in  a  factory,  because  the  removal  might  subject  the 
party  to  a  penalty,  though  it  was  urged  in  support  of  the  objection  that  an- 
other notice  could  be  substituted  at  the  factory. 

5  That  section  enacts,  "that  no  action  shall  be  brought  against  any  consUi- 
ble,  headborough,  or  other  officer,  or  against  any  person  or  persons  acting  by 
his  order  and  in  his  aid,  for  any  thing  done  in  obedience  to  any  warrant  un- 
der the  hand  or  seal  of  any  Justice  of  the  Peace,  until  demand  hath  been 
maxle  or  left  at  the  usual  place  of  his  abode  by  the  party  or  parties  intending 
to  bring  such  action,  or  by  his,  her,  or  their  attorney  or  agent  in  writing, 
signed  by  the  party  demandhig  the  same,  of  the  perusal  and  copy  of  such 
warrant,  and  the  same  bath  been  refused  or  neglected  for  the  space  of  six 
days  after  such  demand." 


942  THE  BEST  EVIDENCE  (Ch.  6 

ney  intending  to  deliver  a  demand  under  the  above  act,  made  out  two 
papers  for  that  purpose  precisely  to  the  same  effect,  and  signed  them 
both  for  his  client;  one  of  which  he  delivered  to  the  Defendant,  and 
the  other,  which  was  the  paper  now  produced,  he  kept  in  his  own  pos- 
session. This  the  learned  Judge  refused  to  receive,  because  no  notice 
had  been  given  to  produce  the  demand  delivered  to  the  Defendant, 
which  he  thought  the  best  evidence ;   accordingly  he  directed  a  nonsuit. 

A  rule  nisi  having  been  obtained  upon  a  former  day  for  setting  aside 
this  nonsuit, 

Bayley,  Serjt.  now  shewed  cause.  First,  The  demand  left  with 
the  Defendant  ought  to  have  been  produced.  There  is  no  reason  why 
the  general  rule,  that  a  copy  cannot  be  read  without  notice  to  produce 
the  original  having  been  given,  should  not  apply  to  this  case.  If  a  let- 
ter be  written,  and  the  party  writing  it  enter  a  copy  in  his  letter-book 
and  sign  it,  would  it  not  be  necessary  to  give  notice  to  produce  the 
original  before  the  duplicate  could  be  admitted  in  evidence? 

Lord  Eldon,  C.  J.  With  respect  to  the  only  question  which  arose 
at  nisi  prius,  namely,  whether  this  paper  is  to  be  considered  as  a  copy 
of  the  original  notice,  or  as  a  duplicate  original,  the  strong  inclination 
of  my  opinion  is,  that  it  is  a  duplicate  original,  which,  under  the  cir- 
cumstances of  the  case,  afforded  evidence  enough  for  the  Plaintiff  to 
insist  that  the  trial  should  proceed.  I  have  looked  into  the  act  of  par- 
liament with  a  view  to  discover  a  new  ground  on  which  any  distinction 
may  be  founded  between  the  notice  required  by  the  first  section,  to  be 
given  to  Justices  of  the  Peace  previous  to  the  commencement  of  an 
action  against  them,  and  the  demand  required  by  the  sixth  section ;  but 
without  success.  Unless  I  am  mistaken,  it  is  the  usual  course  in  ac- 
tions against  Justices  of  the  Peace  to  produce  a  duplicate  original ;  and 
the  same  thing  is  done  with  respect  to  notices  to  quit.  It  is  true,  that 
a  notice  to  a  Justice  of  the  Peace  need  not  be  signed  either  by  the 
Plaintiff  or  his  attorney ;  though  on  the  back  of  it  the  name  and  place 
of  abode  of  the  attorney  must  be  indorsed ;  but  it  must  have  certain 
specified  contents ;  and  the  production  of  a  copy,  or  duplicate  of  that 
notice,  therefore,  is  not  the  very  best  evidence  to  prove  that  the  notice 
had  the  contents  specified  in  the  act.  So  a  duplicate  of  a  notice  to  quit 
is  not  the  very  best  evidence  of  the  contents  of  the  notice  delivered : 
for  in  that  case,  also,  the  contents  may  be  proved  to  a' certainty  by  the 
production  of  the  notice  itself,  and  the  supposed  duplicate  original 
may  be  inaccurate.  I  do  not  see  on  what  ground  the  distinction  be- 
tween those  cases  and  this  can  be  supported,  the  Plaintiff  having 
shewn,  that  the  paper  produced  was  signed  in  the  manner  required  by 
the  act.  The  practice  of  allowing  duplicates  of  this  kind  to  be  given 
in  evidence,  seems  to  be  sanctioned  by  this  principle,  that  the  original 
delivered  being  in  the  hands  of  the  Defendant,  it  is  in  his  power  to 
contradict  the  duplicate  original,  by  producing  the  other,  if  they  vary. 
We  cannot  hold  the  paper  produced  in  this  case  to  be  insufficient,  with- 
out overturning  the  practice  in  actions  against  magistrates,  and  in  cases 


Sec.  1)  COiNTENTS  OF  A    DOCUMENT  943 

of  notices  to  quit,  unless  I  mistake  as  to  what  that  practice  is; — con- 
ceiving it  to  be  as  I  have  stated,  I  think  this  nonsuit  cannot  be  sup- 
ported. 

BuLLER,  J.  I  am  confident  that  this  question  has  often  arisen,  and 
been  decided,  at  nisi  prius.  But  points  of  this  kind  pass  unnoticed,  un- 
less afterwards  moved  in  court.  The  attorney  in  this  case  made  two 
copies  of  the  paper,  one  of  which  he  meant  to  deliver ;  he  signed  both, 
and  it  was  indifferent  which  of  them  he  delivered,  for  they  were  both 
originals.  It  appears  clearly  from  the  report,  that  the  nonsuit  was 
directed  on  the  ground  of  the  paper  produced  in  evidence  being  a 
copy ;  but  I  think  it  clear,  that  both  the  papers  were  originals.  With 
respect  to  the  second  point,  I  agree  with  my  Brother  Bayley,  that  if 
any  thing  appear  upon  the  report,  which  would  be  the  cause  of  a 
nonsuit  at  the  second  trial,  the  Court  will  take  it  into  consideration, 
though  not  expressly  reserved.  But  the  statute  in  question  not  being  a 
penal  act,  the  Court  are  not  bound  to  construe  it  strictly.  I  think,  there- 
fore, the  demand  being  signed  by  tlie  Plaintiff's  attorney  for  him,  is 
within  the  meaning  of  the  statute,  a  demand  signed  by  the  Plaintiff. 

Heath,  J.  I  am  of  the  same  opinion.  In  principle  I  cannot  dis- 
tinguish this  case  from  that  of  a  duplicate  notice  to  quit,  which  is  re- 
ceived in  evidence. 

RoOKE,  J.  I  confess,  that  I  cannot  make  up  my  mind  to  agree  with 
my  Lord  Chief  Justice  and  my  Brothers.  The  act  requires  this  de- 
mand to  be  signed.  In  the  other  cases  which  have  been  mentioned, 
both  the  notice  delivered,  and  the  duplicate  retained,  may  be  consid- 
ered as  originals.  But  here  something  more  is  to  be  done  beyond  the 
mere  production  of  the  paper;  tlie  signature  is  to  be  proved;  and 
how  tliat  is  to  be  proved,  by  shewing  that  another  paper  was  signed 
by  the  party,  I  do  not  perceive.  I  think  that  the  Plaintiff  should  have 
given  notice  to  produce  the  original  demand  before  he  could  entitle 
himself  to  give  the  counterpart  in  evidence. 

Rule  absolute. 


BUTCHER  et  al.  v.  JARRATT. 

(Court  of  Coiumon  Tleas,  1S02.     3  Bos.  &  P.  14.3.) 

Trover  for  "a  certificate  in  writing  of  the  register  of  a  certain  ship 
or  vessel  called  the  Salem,  which  said  ship  or  vessel  had  been  reg- 
istered by  the  Plaintiffs,  according  to  the  statute  in  that  case  made 
and  provided." 

At  the  trial  before  Lord  Alvanlcy,  C.  J.,  at  the  Guildhall  Sittings 
after  last  Hilary  Term,  it  appeared,  that  the  Defendant  having  been 
employed  as  broker  in  the  sale  of  the  ship  Salem  by  the  Plaintiffs 
had  got  the  certificate  of  registry  in  question  into  his  hands,  and  re- 
fused to  deliver  it  at  their  desire  to  the  person  who  had  purchased  of 
them,  so  as  to  enable  them  to  obtain  a  fresh  certificate  of  registry.    To 


944  THE  BEST  EVIDENCE  (Ch.  6 

prove  that  such  a  certificate  had  been  granted,  an  officer  of  the  cus- 
toms was  called,  who  produced  the  original  registry  from  which  the 
certificate  was  copied.  This  evidence  was  objected  to,  on  the  i'a.rt  of 
the  Defendant,  because  no  notice  had  been  given  to  the  Defendant  to 
produce  the  certificate  of  registry  itself,  without  which  it  was  insisted, 
that  the  Plaintiffs  could  not  resort  to  any  secondary  evidence  of  the 
instrument  which  they  sought  to  recover.  Lord  Alvanley  admitted  the 
evidence,  and  a  verdict  was  found  for  the  Plaintiffs. 

A  rule  nisi  for  a  new  trial  was  obtained  on  a  former  day,  on  the 
ground  of  the  evidence  having  been  improperly  admitted,  and  the  case 
of  Cowan  v.  Abrahams,  1  Esp.  N.  P.  Cas.  50,  was  then  cited,  where 
Lord  Kenyon  in  an  action  of  trover  for  a  bill  of  exchange,  refused 
to  admit  any  evidence  respecting  the  bill,  notice  not  having  been  given 
to  the  Defendant  to  produce  the  bill  itself. 

Lord  Alvanley,  C,  J.  Without  controverting  the  rule  laid  down 
by  Lord  Kenyon,  I  think  this  case  very  distinguishable  from  Cowan 
v.  Abrahams.  None  of  the  arguments  used  by  his  Lordship  in  that 
case  apply  to  the  present.  There  the  best  evidence  of  the  contents  of 
the  bill  of  exchange  was  unquestionably  to  be  derived  from  the  produc- 
tion of  the  bill  itself.  But  the  production  of  the  certificate  of  registry 
could  in  this  case  have  answered  no  purpose  whatever,  the  only  ques- 
tion being.  Whether  the  Defendant  wrongfully  detained  the  certificate 
from  the  Plaintiffs  or  not?  It  seems  to  me,  therefore,  no  violation 
of  the  rules  of  evidence  to  admit  proof  of  the  existence  of  the  certifi- 
cate, in  order  to  charge  the  Defendant  with  a  tortious  conversion  of 
that  instrument. 

Heath,  J.  There  is  a  material  difiference  between  an  action  of  as- 
sumpsit on  a  promise  contained  in  an  instrument  in  writing,  and  an 
action  of  trover  for  the  instrument  itself.  In  the  former,  the  promise 
must  be  proved  as  laid,  and  consequently  can  be  best  proved  by  in- 
spection of  the  instrument ;  in  the  latter,  the  gist  of  the  action  is  the 
tort.  Undoubtedly,  if  a  party  unnecessarily  take  upon  himself  to 
describe  the  instrument,  he  must  prove  his  description.  But  that  is  not 
the  case  here.  In  fact,  the  original  was  produced ;  and  that  which  the 
Defendant  insists  ought  to  have  been  produced,  was  only  a  copy. 

RooKE,  J.  This  action  is  brought  to  recover  from  the  Defendant 
the  property  in  a  specific  tiling:  and  therefore,  I  think  the  evidence 
received  at  the  trial  was  properly  received.  Where  a  written  instru- 
ment is  to  be  used  as  a  medium  of  proof,  by  which  a  claim  to  a  demand 
arising  out  of  the  instrument  is  to  be  supported,  there,  I  admit,  the  in- 
strument itself  must  be  produced,  or  notice  to  produce  it  must  have 
been  given  to  the  Defendant,  before  any  evidence  of  its  contents  can 
be  received.  But  this  being  an  action  of  trover  for  the  certificate  of 
registry  itself,  I  can  see  no  sound  reason  why  evidence  should  not  be 
admitted  of  the  existence  of  the  certificate  in  the  same  manner  as  evi-- 
dcnce  of  a  xjicturc,  or  other  specific  thing,  is  constantly  admitted,  where 


Sec.  1)  CONTENTS  OF  A    DOCUMENT  945 

it  is  sought  to  be  recovered  in  the  same  form  of  action.  It  is  true, 
that  if  a  party  take  upon  himself  to  describe  the  contents  of  the  instru- 
ment, he  must  prove  it  as  he  describes  it.  In  this  case,  it  was  not  pos- 
sible for  the  Defendant  to  entertain  a  doubt  what  was  the  thing  de- 
manded, there  being  but  one  certificate  of  registry  to  a  ship  existing  at 
any  one  period.  The  original  registry,  which  is  a  kind  of  duplicate 
of  the  certificate,  was  produced ;  and  the  certificate  itself  being  in  the 
possession  of  the  Defendant,  it  was  in  his  power  to  produce  it,  and 
shew  that  the  PlaintifT's  evidence  respecting  the  certificate  was  not 
correct,  if  that  had  been  the  case. 

Chambrk,  J.  There  is  an  essential  difiference,  as  I  conceive,  be- 
tween the  mode  of  proving  a  very  general  or  a  very  minute  description 
of  a  written  instrument.  The  rule  undoubtedly  is,  that  no  evidence 
can  be  received  of  the  contents  of  a  written  instrument  but  the  instru- 
ment itself.  But  in  this  case  the  Plaintiffs  declared  in  trover  for  a 
written  instrument,  describing  it  generally,  and  not  referring  to  its 
contents,  of  which  evidence  could  not  have  been  received,  as  no  notice 
had  been  given  to  the  Defendant  to  produce  the  instrument  itself.  I 
think,  therefore,  the  evidence  was  properly  admitted. 

Rule  discharged.* 


DWYER  V.  COLLINS. 

(Court  of  the  Exchequer,  1852.     7  Exch.  639.) 

This  was  an  action  by  the  endorsee  against  the  acceptor  of  a  bill  of 
exchange :  to  which  the  defendant  pleaded,  inter  alia,  that  the  bill  was 
given  for  a  gaming  debt.  On  the  trial,  before  the  Lord  Chief  Baron, 
at  the  Middlesex  Sittings  after  last  Term,  tiie  defendant  proceeded  to 
prove  his  plea ;  and  for  that  purpose  gave  evidence  of  the  gaming,  and 
swore  that  the  only  bill  he  ever  gave  to  the  drawer  of  the  bill  which 
was  declared  on,  was  by  way  of  payment  of  the  debt  then  incurred. 
The  defendant's  counsel,  being  required  to  prove  that  the  identical  bill 
declared  upon  was  that  which  was  given  on  that  occasion,  called  for  the 
bill,  which  the  plaintiff's  counsel  declined  to  produce.  The  defendant's 
counsel  then  called  as  a  witness  the  plaintift''s  attorney,  who  was  present 
in  Court,  and  asked  him  whether  he  had  the  bill  with  him.  The  plain- 
tiff's counsel  objected  that  such  a  question  need  not  be  answered,  as  it 
would  be  a  breach  of  professional  confidence  to  do  so.  The  Lord  Chief 
Baron,  after  consulting  some  of  the  other  Judges  of  this  Court — at  that 
time  sitting  in  the  Exchequer  Chamber — decided  that  the  question 
must  be  answered.    The  attorney  having  admitted  that  the  bill  was  in 

0  In  How  V.  Hall,  14  East,  275  (1811),  the  same  result  was  reached  on  the 
thoorj'  that  the  pleading  in  such  actions  served  the  puriiose  of  a  notice  to 
produce;  and  so  in  Com.  v.  Messinger,  1  Bin.  (Pa.)  273,  2  Am.  Dec.  441  (ISOS),  a 
criminal  prosecution  for  the  larceny  of  a  written  instrument. 

HiNT.Ev.— 60  * 


946  THE  BEST  EVIDENCE  (Cll.  6 

his  possession  and  in  Court,  the  defendant's  counsel  called  for  its  pro- 
duction; which  being  refused,  he  then  offered  to  give  secondary  evi- 
dence of  its  contents.  The  plaintiff's  counsel  objected,  that  there  ought 
to  have  been  a  previous  notice  to  produce;  and  the  Lord  Chief 
Baron,  after  consulting  the  same  Judges,  ruled  in  favour  of  the  de- 
fendant. The  evidence  was  then  given,  and  a  verdict  passed  for  the 
defendant,  the  Judge  reserving  leave  to  the  plaintiff's  counsel  to  move 
to  enter  a  verdict  on  the  points  made  at  the  trial.  On  a  former  day  in 
this  Term, 

Humfrey  obtained  a  rule  nisi  accordingly. 

Parke,  B.^  [After  stating  the  facts  as  set  forth  at  the  commence- 
ment of  the  report,  his  Lordship  proceeded :]  Mr.  Humfrey  obtained  a 
rule  nisi  for  a  new  trial,  arid  the  Court  granted  it,  as  we  thought  the 
subject  fit  to  be  more  fully  considered,  notwithstanding  the  opinion 
which  had  been  given  to  the  Lord  Chief  Baron,  and  on  which  he  had 
acted.  The  case  has  been  fully  argued  at  the  bar,  and  all  the  authori- 
ties considered ;  and  we  are  of  opinion  that  the  rule  ought  to  be  dis- 
charged. We  do  not  propose  to  decide  whether  the  defendant's  evi- 
dence in  this  case,  that  no  other  bill  was  given  to  the  drawer  than  one 
for  this  gambling  debt,  superseded  the  necessity  of  further  proof ;  nor 
to  consider  the  question,  whether  the  pleadings  themselves  give  as  much 
notice  that  the  bill  will  be  the  subject  of  inquiry  as  they  do  in  an  ac- 
tion of  trover  for  a  written  instrument,  where  a  notice  to  produce  is 
unnecessary — it  having  been  decided  by  the  Court  of  Queen's  Bench  in 
Read  v.  Gamble,  10  A.  &  E.  597,  n.,  and  in  Goodered  v.  Armour,  3 
Q.  B.  956,  and  followed  by  this  Court  in  Lawrence  v.  Clark,  14  M.  & 
W.  250,  that  in  a  case  like  the  present  the  pleadings  do  not  give  con- 
structive notice.  We  wish  to  decide  this  case  upon  the  more  general 
ground,  the  principal  subject  of  the  argument  at  the  bar.  There  are, 
therefore,  two  questions  to  be  considered. 

First,  whether  the  plaintift"s  attorney  was  protected  from  answering 
the  simple  question,  as  to  the  bill  being  in  his  possession  and  in  court. 

Secondly,  whether  on  his  refusal,  it  was  competent  for  the  defend- 
ant to  give  secondary  evidence  of  its  contents,  no  previous  notice  to 
produce  having  been  given. 

We  are  of  opinion  that  the  ruling  of  my  Lord  Chief  Baron  was  right, 
on  both  questions.  The  relation  of  attorney  and  client  prevents  the 
former  from  disclosing  any  communication  made  to  him  in  the  or- 
dinary course  of  his  employment,  and  on  the  faith  of  the  confidence 
which  the  client  reposes  in  his  legal  adviser.  But  the  privilege  does 
not  extend  to  matters  of  fact  which  the  attorney  knows  by  any  other 
means  than  confidential  communication  with  his  client,  though,  if 
lie  had  not  been  employed  as  attorney,  he  probably  would  not  have 
known  them.  Thus,  he  may  prove  the  client's  swearing  to  the  truth 
of  an  answer  in  Chancery;  and  his  handwriting,  by  seeing  it  in  docu- 

^  I'arl  of  oiiiuiuii  umiUoa. 


Sec.  1)  CONTENTS  OF  A  DOCUMENT  947 

ments  prepared  by  him  in  the  name  of  his  employer;  in  the  same  way 
he  may  prove  the  fact  that  a  particular  document  is  then  in  his  posses- 
sion and  in  Court — for  tliis  is  not  a  fact  professionally  communicated 
to  him ;  though  of  course  he  could  not  be  compelled  to  disclose  the 
contents  of  any  document  which  is  professionally  intrusted  to  him,  and 
which  he  is  acquainted  with  only  by  virtue  of  professional  confidence. 
That  the  privilege  of  an  attorney  does  not  extend  to  protect  him 
from  answering  whether  the  document  is  then  in  court,  was  decided  by 
Best,  C.  J.,  at  Nisi  Prius,  in  Bevan  v.  Waters,  1  Moo.  &  M.  235.  In 
Eicke  v.  Nokes,  Id.  303,  Lord  Tenterden  permitted  a  clerk  of  the  de- 
fendant's attorney  to  be  asked,  whether  a  copy  of  a  bill  had  not  been 
given  to  him  by  the  defendant;  and  the  Court  of  Queen's  Bench  decid- 
ed, in  the  case  of  Coates  v.  Birch,  2  Q.  B.  252,  that  an  attorney  might  be 
asked  whether  he  had  then  in  his  possession,  on  the  trial  and  in  court, 
a  warrant,  though  he  said  he  had  no  documents  which  he  had  not  re- 
ceived from  his  client  in  the  course  of  their  professional  communica- 
tions. These  authorities  are  quite  satisfactory  to  us :  for  it  is  obvious 
that  the  answer  to  the  question  betrays  po  secret,  directly  or  indirect- 
ly communicated  to  him  in  professional  confidence.     *     *     * 

The  next  question  is,  whether,  the  bill  being  admitted  to  be  in  court, 
parol  evidence  was  admissible  on  its  non-production  by  the  attorney  on 
demand,  or  whether  a  previous  notice  to  produce  was  necessary.  On 
principle,  the  answer  must  depend  on  the  reason  why  notice  to  produce 
is  required.  If  it  be  to  give  his  opponent  notice  that  such  a  document 
Will  be  used  by  a  party  to  the  cause,  so  that  he  may  be  enabled  to  pre- 
pare evidence  to  explain  or  confirm  it,  then,  no  doubt,  a  notice  at  the 
trial,  though  the  document  be  in  court,  is  too  late.  But  if  it  be  merely 
to  enable  the  party  to  have  the  document  in  court,  to  produce  it  if  he 
likes,  and  if  he  does  not,  to  enable  the  opponent  to  give  parol  evidence ; 
— if  it  be  merely  to  exclude  the  argument  that  the  opponent  has  not 
taken  all  reasonable  means  to  procure  the  original  which  he  must  do 
before  he  can  be  permitted  to  make  use  of  secondary  evidence,  then  the 
'demand  of  production  at  the  trial  is  sufificient.  We  are  not  able  to 
find  a  trace  of  the  reason  suggested  on  the  part  of  the  plaintiff,  un- 
til it  is  mentioned  by  Mr.  Starkie,  in  his  book  on  Evidence,  and  after- 
wards by  Mr.  Taylor,  in  his.  There  is  no  satisfactory  authority 
which  appears  to  us  to  support  such  a  position.  If  this  be  the  principle 
on  which  notice  to  produce  is  required,  it  is  a  solitary  instance,  we 
believe,  in  the  law,  prior  to  the  New  Rules,  of  its  being  necessary  for 
one  party  to  give  notice  of  the  evidence  which  the  other  means  to 
adduce  against  him.  If  this  be  the  true  reason,  the  measure  of  the 
reasonable  length  of  notice  would  not  be  the  time  necessary  to  procure 
the  document,  a  comparatively  simple  inquiry,  but  the  time  necessary 
to  procure  evidence  to  explain  or  support  it,  a  very  complicated  one, 
depending  on  the  nature  of  the  plaintiff's  case,  and  the  document  itself 
and  its  bearing  on  the  cause ;  and  in  practice  such  matters  have  never 
been  inquired  into,  but  only  the  time,  with  reference  to  the  custody  of 


948  THE  BEST  EVIDENCE  (Ch.  6 

the  document,  and  the  residence  and  convenience  of  the  party  to  whom 
notice  has  been  given,  and  the  Hke.     We  think  the  plaintiff's  alleged 
principle  is  not  the  true  one  on  which  notice  to  produce  is  required,  but 
that  it  is  merely  to  give  a  sufficient  opportunity  to  the  opposite  party  to 
produce  it,  and  thereby  to  secure,  if  he  pleases,  the  best  evidence  of  the 
contents;    and  a  request  to  produce  immediately  is  quite   sufficient 
for  that  purpose,  if.it  be  in  court.    With  this  view  the  opinion  of  our 
Brother  Alderson  accords,  as  reported  in  Lawrence  v.  Clark,  14  M.  & 
W.  253.    There  is  no  case  in  support  of  the  plaintiff's  position,  except 
that  of  Cook  V.  Hearn,  above  referred  to,  which  we  think,  for  the  rea- 
sons given  before,  quite  insufficient ;  and  a  case  of  Exall  v.  Partridge, 
said  to  have  been  quoted  by  the  late  Lord  Abinger  when  at  the  bar, 
mentioned  in  the  report  of  Doe  d.  Wartney  v.  Grey,  1  Stark.  283,  but 
not  reported  elsewhere,  in  which  Lord  Kenyon  is  said  to  have  told  the 
attorney  that  he  need  not  produce  the  instrument,  which  had  a  sub- 
scribing witness,  unless  he  had  notice  in  time  to  enable  him  to  pro- 
duce the  attesting  witness.    There  is  probably  a  mistake  in  this,  as  the 
party  requiring  the  document  would  have  been  bound,  if  it  were  pro- 
duced, to  call  the  subscribing'witness,  unless  in  the  excepted  case  where 
the  party  producing  it  claimed  title  under  it.    This  case  cannot  be  relied 
upon.    In  the  case  of  Doe  v.  Grey  itself,  it  did  not  appear  that  the  at- 
torney had  received  the  notice  to  produce,  which  the  night  before  was 
served  upon  his  wife,  or  had  the  lease  itself  in  court  on  the  trial.    Nor 
does  that  fact  appear  in  either  of  the  cases  of  Read  v.  Gamble  and  Law- 
rence V.  Clark,  before  referred  to ; — the  expression,  that  the  counsel  re- 
fused to  produce,  is  not  equivalent,  and  the  fact  is  not  so  proved.    We 
think  that  the  rule  must  be  discharged ;   and  it  would  be  some  scandal 
to  the  administration  of  the  law  if  the  plaintiff's  objection  had  pre- 
.  vailed. 

Rule  discharged. 


KINE  v.  BEAUMONT. 
(Court  of  Common  Pleas,  1822.     3  Brod.  &  Bing.  288.) 

Action  by  the  endorsee  of  a  bill  of  exchange  against  the  endorser. 
At  the  trial,  before  Dallas,  C.  J.,  London  sittings  after  last  term,  the 
plaintiff  offered  to  prove  the  notice  of  dishonour  of  the  bill,  (which  no- 
tice had  been  given  in  a  letter,)  by  a  copy  of  the  letter,  taken  at  the 
time  it  was  written ;  but  did  not  prove  any  notice  to  the  defendant  to 
produce  that  letter. 

It  was  objected,  that  a  copy  of  the  letter  ought  not  to  be  allowed  in 
evidence,  till  it  was  proved  that  the  defendant  had  received  notice  to 
produce  the  original  letter.  A  verdict  was  found  for  the  plaintiff,  with 
leave  for  the  defendant  to  move  to  set  it  aside  and  enter  a  nonsuit,  if 
this  objection  should  be  thought  well  founded. 

Bosanquet,  Serjt.,  on  a  former  day,  obtained  a  rule  nisi  accordingly. 


Sec.  1)  CONTENTS  OF  A  DOCUMENT  949 

Bosanquet,  in  support  of  his  rule.  Neither  a  notice  to  quit  nor  a 
notice  of  action  to  a  magistrate  can  be 'proved  by  a  copy,  where  no 
notice  has  been  given  to  produce  the  original  notice,  except  in  cases 
where  the  notice  served  was  one  of  two  duplicate  originals,  drawn  out 
and  signed  at  the  same  time  and  by  the  same  hand.  This  was  tlie 
ground  of  the  decisions  in  Jory  v.  Orchard  [2  B.  &  P.  39J,  Anderson 
V.  May  [2  B.  &  P.  237],  Gotlieb  v.  Danvers,  1  Esp.  455;  Surtees  v. 
Hubbard,  4  Esp.  203 ;  Philipson  v.  Chase,  2  Campb.  1 10 ;  and  forms 
the  distinction  to  which  the  decisions  by  Lord  Ellenborough  seem  al- 
ways to  have  reference.  In  Surtees  v.  Hubbard  he  refers  to  the  case 
of  a  notice  to  quit,  and  of  such  notices  duplicate  originals  are  usually 
made ;  but  no  case  has  decided  that  a  copy  of  a  notice  to  quit,  where 
duplicate  originals  have  not  been  drawn  out,  can  be  given  in  evidence, 
without  proving  notice  to  produce  the  notice  served. 

Dallas,  C.  J.^  It  appeared  to  me  at  the  trial,  that  the  objection 
there  taken,  and  now  supported,  was  well  founded.  So  I  thought 
originally ;  so  Lord  Ellenborough  thought  at  one  time ;  so  Lord 
Kenyon  thought.  But,  at  the  suggestion  of  counsel,  and  on  a  refer- 
ence made  to  some  of  the  later  cases,  a  verdict  was  taken  for  the 
plaintiff,  and  I  saved  the  point  for  the  opinion  of  this  Court. 

In  the  case  of  Roberts  v.  Bradshaw  [1  Starkie,  N.  P.  C.  28],  Lord 
Ellenborough  expressly  says,  that  a  letter  acquainting  a  party  with  the 
dishonour  of  a  bill,  is  in  the  nature  of  a  notice,  and  that  it  is  unneces- 
sary to  prove  notice  to  produce  such  a  letter.  I  own  I  do  not  see  any 
great  inconvenience  which  can  arise,  in  practice,  from  giving  notice 
to  produce  such  a  letter ;  but  still  the  question  comes  to  this,  whether, 
in  substance  and  reason,  the  law  is  not  by  the  late  determination  set- 
tled, that  where  a  copy  of  a  letter,  containing  notice  of  dishonour  of 
a  bill  of  exchange  is  tendered  in  evidence,  such  copy  is  admissible, 
without  proving  a  notice  to  the  party  in  whose  possession  the  letter 
itself  may  be,  to  produce  it. 

I  am  not  now  going  to  enter  into  nice  distinctions  between  a  copy 
2nd  a  duplicate  original ;  though  I  cannot  set  any  great  difference  be- 
tween a  duplicate  original  and  a  copy  made  at  the  time ;  but,  feeling 
the  necessity  that  there  should  be  a  uniformity  in  the  practice  of  the 
Courts,  we  will  inquire  what  the  practice  of  the  Court  of  King's  Bench 
is  on  like  occasions. 

On  this  ground  only  we  delay  giving  our  judgment. 

BuRROuGH,  J.  I  can  see  no  substantial  distinction  between  a  dupli- 
cate original  and  a  copy  made  at  the  time. 

Richardson,  J.  At  present,  I  own  I  do  not  see  any  sound  distinc- 
tion between  a  duplicate  original  and  a  copy  authenticated  on  oath. 

Adjornatur. 

And  now, 

Dallas,  C.  J.,  said:  In  this  case  we  see  no  reason  to  change  the 
opinion  we  in  part  expressed  when  the  question  was  last  before  the 

8  Opinion  of  Park,  J.,  omitted. 


950  THE  BEST  EVIDENCE  (Ch.  G 

Court;  but,  as  a  matter  of  ^general  practice,  we  wished  to  collect  the 
opinion  of  other  Judges,  and  the  result  is,  that  the  copy  of  an  original 
letter,  giving  notice  of  the  dishonour  of  a  bill,  is  admissible,  without 
notice  to  produce  the  original  lettisr,  and,  consequently  that,  in  this 
case,  the  verdict  must  stand,  and  the  rule  to  enter  a  nonsuit  be  dis- 
charged.^ 

Rule  discharged. 


ENGLES  V.  BLOCKER  et  al. 
(Supreme  Court  of  Arkansas,  1917.     127  Ark.  385,  192  S.  W.  193.) 

This  was  an  action  by  Blocker  and  another,  as  plaintiffs,  to  recover 
commissions  for  effecting  a  trade  or  sale  of  certain  leases  for  de- 
fendant.    There  was  a  verdict  for  plaintiffs,  and  defendant  appealed. 

Hart,  J.^°  *  *  *  It  is  also  insisted  that  the  court  erred  in  ad- 
mitting the  carbon  copies  of  the  letters  written  by  Blocker  which  were 
set  out  in  the  statement  of  facts.  We  do  not  think  the  court  erred 
in  admitting  these  letters  in  evidence.  Blocker  testified  that  they 
were  mailed  to  Engles,  and  the  letters  written  by  Engles  to  Blocker 
show  that  each  of  these  letters  except  one  dated  July  11,  1914,  and 
that  of  the  date  of  July  28,  1914,  were  received  by  Engles.  The 
record  also  shows  that  Blocker  wrote  Engles  a  letter  notifying  him 
of  the  formation  of  the  oil  and  gas  corporation  and  did  not  keep  a 
copy  of  it.  His  counsel  asked  Engles  to  produce  the  copy  of  this 
letter.  Engles  denied  having  received  the  letter,  but  admitted  that 
he  had  received  all  the  other  letters  written  to  him  by  Blocker.  We 
think  that  a  carbon  copy  of  a  letter  addressed  to  an  adversary  in  a 
lawsuit  is  admissible  in  evidence  without  making  any  efl'ort  to  re- 
quire the  adverse  party  to  produce  the  letter  received  by  him.  In  this 
respect  there  is  a  distinction  between  letterpress  copies  and  instruments 
produced  by  carbon  paper.  What  is  called  the  "carbon  copy"  is  pro- 
duced by  placing  a  sheet  of  carbon  paper  between  two  sheets  of  letter 
paper  so  that  the  same  impression  produces  both  the  letter  and  the 
carbon  copy.  Because  the  carbon  copy  is  made  at  the  same  time  by 
the  same  impression,  it  may  be  regarded  as  a  duplicate  of  the  original 
letter  itself  and  admitted  in  evidence  without  notice  to  produce  the 
letter.  International  Harvester  Co.  v.  Elfstrom,  101  Minn.  263,  112 
N.  W.  252,  12  E.  R.  A.  (N.  S.)  343,  118  Am.  St.  Rep.  626,  11  Ann. 
Cas.  107;    Chesapeake  &  Ohio  Ry.  Co.  v.  F.  W.  Stock  &  Sons,  104 

9  In  Mcnasha  Wooden  Ware  Co.  v.  llarinon,  128  Wis.  177,  107  N.  W.  299 
(lOOfi),  the  court  lieUl  that  the  contents  of  a  letter  to  a  third  person  could  not 
he  proved  hy  letterpress  cofiy,  without  showing  that  the  original  was  vuiavail- 
able,  observing:  "The  original  letters  aTid  letterpress  copies  are  not  regarded 
as  being  duplicates.  2  Wigmore,  Ev.  §  12.'?4.  sul)d.  2,  and  note  3;  State  v. 
Halstead,  73  Iowa,  376  [35  N.  W.  457  (1887)1 ;  Seibert's  Assignee  v.  Ragsdale, 
103  Ky.  200  [44  S.  W.  G53  (1898)]." 

10  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  1)  CONTENTS  OF  A    DOCUMENT 


951 


Va.  97,  51  S.  E.  161;  Cole  v.  Ellwood  Power  Co.,  216  Pa.  283,  65 
Atl.  678. 

The  letters  signed  by  Blocker  of  which  copies  were  kept  were  mailed 
to  Engles  as  the  evidence  of  their  understanding,  and  Engles  admits 
that  he  received  them.  There  seems  to  be  no  good  reason  for  Block- 
er, when  he  is  seeking  to  enforce  their  obligation,  to  ask  for  the  pro- 
duction of  the  letters  received  by  Engles.  If  proof  of  the  duplicate 
was  important  to  Engles,  he  was  at  liberty  to  make  use  of  it  and  could 
have  introduced  the  letter  received  by  him  to  show  that  the  carbon  copy 
was  not  a  duplicate  of  it.  Inasmuch  as  he  did  not  do  so,  it  is  to  be 
presumed  that  the  carbon  copy  introduced  by  Blocker  was  a  duplicate 
of  the  original  letter  received  by  him.     *     *    * 

Judgment  affirmed. ^^ 


YOUNG  et  al.  v.  PEOPLE. 
(Supreme  Court  of  Illinois,  1906.     221  111.  51,  77  N.  E.  .536.) 

At  the  June  term,  1905,  the  grand  jury  of  Cook  county  returned  in- 
to the  criminal  court  of  said  county  an  indictment  against  Louis  Young, 
Edward  C.  Keefe,  and  one  McCormick,  charging  them  with  unlaw- 
fully and  feloniously  obtaining  from  Patrick  H.  Greear,  on  the  loth 
day  of  June,  1905,  the  sum  of  $1,200  in  cash  by  means  of  tlie  confi- 
dence game.  Louis  Young  and  Edward  C.  Keefe  were  arrested,  Mc- 
Cormick not  being  found,  and  upon  a  trial  Young  and  Keefe  were 
found  guilty  and  sentenced  to  the  penitentiary  for  an  indeterminate 
period,  and  they  have  sued  out  a  writ  of  error  from  this  court  to  the 
criminal  court  of  Cook  county  to  reverse  said  judgment  of  convic- 
tion.    *     *     *  _ 

Hand,  J.^"  *  *  *  The  court  also  permitted  the  state  to  introduce 
in  evidence  a  copy  of  a  telegram  purporting  to  have  been  sent  by 
Keefe  from  Mankato,  Wis.,  June  13,  1905,  to  Fred  Gondorf  (Mc- 
Cormick) at  Chicago,  requesting  Gondorf  (McCormick)  to  meet  Keefe 
the  next  day  at  10:30  at  the  Majestic  Hotel,  without  proof  of  the  loss 
or  destruction  of  the  original  telegram,  or  even  that  the  copy  offered 
was  a  copy  of  the  original.  The  copy  introduced  was  the  copy  retained 
by  the  telegraph  company  among  its  files  in  its  Chicago  office,  and  the 
court  seems  to  have  entertained  the  view  that  such  copy  was  the 
original.  This  was  not  the  correct  view.  It  was  not  shown  that  Fred 
Gondorf  (McCormick)  ever  received  said  telegrain,  or  that  it  was 
ever  acted  upon  by  either  Keefe,  McCormick,  or  Young,  or  that  it 

11  For  a  collection  of  the  cases  dealing  with  copies  produroa  by  mechaniral 
processes,  see  note  to  Int.  Harvester  Co.  v.  Elfstrom,  12  L.  R.  A.  (^.  S.)  343 

^' That  a  photograph  of  a  document  is  reg^irded  as  secondary  evidence,  see 
Maclean  v.  Scripps,  52  Mich.  214,  17  N.  W.  81o.  18  ^.  ^\.  209  (lSb3). 
12  statement  abridged  and  part  of  opinion  omitted. 


952  THE  BEST  EVIDENCE  (Ch.  6 

was  signed  or  sent  by  Keefe.  It  was  introduced  as  the  admission  of 
Keef  e  that  he  knew  McCormick  and  desired  to  have  him  meet  him.  In 
order  to  bind  Keefe,  it  was  necessary  to  show  he  signed  or  sent  the 
telegram,  or  that  he  acted  upon  the  telegram  after  it  was  received, 
and  the  best  evidence  of  the  contents  of  the  telegram  was  the  orig- 
inal ^^  telegram  filed  at  Mankato,  Wis.  Matteson  v.  Noyes,  25  111. 
591;  Morgan  v.  People,  59  111.  58.  It  was  error  to  admit  in  evi- 
dence the  copy  of  said  telegram. 

When  Keefe  was  arrested,  a  card  ^*  was  taken  from  his  vest  pocket 
upon  which  was  written,  "L.  Y.,  3030  Indiana  avenue,  phone  Douglas 
2685,"  which  were  the  initials  of  Louis  Young,  the  number  of  his 
residence,  and  his  telephone  number.  The  police  officer,  who  re- 
ceived the  card  from  tlie  officer  who  took  it  from  Keefe,  testified  that 
the  last  time  he  saw  it,  which  was  four  or  five  days  before  tlie  trial, 
he  gave  it  to  the  assistant  state's  attorney.  Young  testified  he  had 
never  seen  the  card,  knew  nothing  of  its  contents,  or  how  Keefe  came 
by  it.  The  court,  without  requiring  the  production  of  the  card  by 
the  assistant  state's  attorney,  or  proof  of  its  loss  or  destruction,  over 
the  objection  of  the  plaintiffs  in  error,  permitted  the  police  officers  to 
state  what  was  written  on  the  card  at  the  time  it  was  taken  from 
Keefe.  This  evidence  was  exceedingly  damaging  to  Young,  as  it 
tended  to  connect  Keefe  with  him,  and  it  was  error  to  admit  parol 
proof  of  what  was  written  on  the  card  without  proof  of  the  loss  or 
destruction  of  the  card.    Mariner  v.  Saunders,  5  Oilman,  113;  White- 

13  Compare  Bailey,  J.,  in  Anheuser-Busch  Brew.  Ass'n  v.  Hutmacher,  127 
111.  652,  21  N.  E.  626,  4  L.  R.  A.  575  (1SS9):  "  *  *  *  In  Durkee  v.  Vermont 
Central  Railroad  Co.,  29  Vt.  127  [1856],  the  rule  which  we  consider  the  most 
reasonable  one  is  laid  down,  viz.,  that  the  original,  where  the  person  to  whom 
it  is  sent  takes  the  risk  of  its  transmission,  or  is  the  employer  of  the  tele- 
graph, is  the  message  delivered  to  the  operator,  but  where  the  person  sending 
the  message  takes  the  initiative,  so  that  the  telegraph  is  to  be  regarded  as  his 
agent,  the  original  is  the  message  actually  delivered  at  the  end  of  the  line." 

14  There  is  a  good  deal  of  uncertainty  as  to  how  far  the  best  evidence  rule 
applies  to  writing  on  chattels,  or  name  and  address  or  other  marks  on  a  pack- 
age. Where  the  only  purpose  is  to  identify  the  article,  it  is  generally  held 
that  it  is  not  necessary  to  produce  the  original. 

Benedict,  J.,  in  United  States  v.  Graff,  14  Blatch.  381,  Fed.  Cas.  No.  15,244 
(1878):  "*  *  »  The  witness  was  allowed  to  describe  the  Quarks  upon  the 
barrels  he  received,  for  the  sole  purpose  of  identifying  the  articles.  To  such 
a  question,  the  rule  in  regard  to  parol  evidence  of  the  contents  of  a  docu- 
ment, has  no  application.  Evidence  of  the  character  under  consideration  is 
properly  admitted,  when  the  object  is  to  identify  an  article.  Nor  is  the  ad- 
missibility of  such  evidence  confined  to  cases  where  the  character  of  the  ar- 
ticle sought  to  be  identified  forl)ids  its  production  in  Court.  In  Common- 
Avealth  v.  Morrell,  99  Mass.  542  [1S68],  such  evidence  was  admitted  to  identify 
a  tag.     See,  however,  Rogina  v.  Earr,  4  Foster  &  Finlason,  3.'i6  [1864]." 

In  some  cases  the  relaxation  of  the  rule  has  been  carried  much  farther,  as 
in  Com.  v.  Blood,  11  Gray  (Mass.)  74  (1858),  where,  in  a  prosecution  for  keep- 
ing intoxicating  liquors,  witnesses  were  permitted  to  testify  as  to  the  labels 
on  certain  bottles  and  jugs  which  they  observed  at  the  defendant's  place  of 
business,  though  it  did  not  appear  that  they  could  not  have  been  produced. 
Here  the  labels  were  important,  as  indicating  the  sort  of  liquor  in  the  bottles. 
For  a  criticism  of  this  practice,  see  Wigmore,  §  1182. 


Sec.  1)  CONTENTS  OF  A  DOCUMENT  953 

hall  V.  Smith,  24  111.  166;  Wing  v.  Sherrer,  77  111.  200;  Williams 
V.  Case,  79  111.  356. 

The  plaintiffs  in  error  have  urged  other  grounds  of  reversal,  but, 
as  the  matters  complained  of  are  not  likely  to  occur  on  another  trial, 
it  is  not  necessary  that  they  be  here  considered. 

For  the  errors  of  the  court  in  admitting  in  evidence  the  copy  of  said 
telegram  and  parol  proof  of  the  contents  of  said  letter  and  the  matter 
written  upon  said  card  without  the  proper  foundation  having  been  laid 
for  the  admission  of  secondary  evidence,  the  judgment  of  the  crim- 
inal court  will  be  reversed,  and  the  cause  remanded  to  that  court  for 
a  new  trial. 

Reversed  and  remanded. 


THE  KING  v.  INHABITANTS  OF  CASTLETON. 

(Court  of  King's  Bench,  1795.    6  Term  R.  236.) 

Two  justices  removed  Martha  Pedley  from  Castleton  in  the  county 
of  Derby  to  tlie  liberty  of  Bomford  in  the  same  county  as  the  place 
of  her  last  legal  settlement.  On  appeal  the  Sessions  quashed  the  or- 
der, subject  to  the  opinion  of  this  court,  on  the  following  case. 
,  Martha  Pedley  the  pauper  was  alleged  to  have  been  bound  appren- 
tice to  Nicholas  Timms  of  Castleton,  by  indentures  bearing  date  in  or 
about  the  year  1780.  It  was  proved  on  the  part  of  the  liberty  of  Castle- 
ton that  there  were  two  parts  of  tlie  indenture  of  apprenticeship,  one 
part  whereof  remained  with  the  parish  officers  of  Castleton,  and  which 
had  been  destroyed,  and  tlie  other  part  was  given  to  the  said  Timms, 
who  delivered  the  same  to  Miss  Taylor  of  Bomford  at  the  time  of 
the  assignment  herein-after  mentioned.  Application  was  made  to  Miss 
Taylor,  not  then  or  now  residing  at  Bomford  for  tliat  part  of  the  in- 
denture so  delivered  to  her,  who  on  such  application  said  that  she 
could  not  find  the  same,  nor  did  she  know  where  it  was.  Miss  Tavlor 
is  living,  but  was  not  subpoenaed  to  the  Court  of  Sessions  as  a  wit- 
ness to  produce  that  part  of  the  indenture  which  had  been  delivered 
to  her,  or  to  give  any  account  of  the  same  being  lost.  Timms  after- 
wards by  parol  assigned  the  pauper  to  Miss  Taylor  in  Bomford ;  and 
the  pauper  with  Timm's  consent  served  her  in  Bomford  upwards  of 
40  days.  The  Court  of  Sessions  were  of  opinion  that  the  above  was 
not  sufficient  evidence  of  the  indenture  of  apprenticeship.  The  only 
question  is  whether  that  part  of  the  indenture  of  apprenticeship 
which  was  delivered  to  Miss  Taylor  is  properly  accounted  for. 

Balguy  was  in  support  of  tlie  order  of  sessions ;  and 

Clarke  contra.     But 

The  Court  thought  the  case  too  clear  for  argument;    that  if  the 
indenture  could  not  be  produced,  evidence  must  be  adduced  to  shew 


954  THE  BEST  EVIDENCE  (Ch.  6 

that  it  was  lost  or  destroyed.    Here  it  was  traced  to  the  hands  of  Miss 
Taylor,  and  no  further  evidence  was  given  to  shew   what  had  be- 
come of  it. 
,  Order  of  Sessions  confirmed. 


FREEMAN  v.  ARKELU 

(Court  of  King's  Bench,  1824.     2  Barn.  &  C.  494.) 

Action  for  malicious  prosecution. 

At  the  trial  before  Park,  J.,  at  the  last  assizes  for  the  county  of 
Gloucester,  Dr.  Timbrell  the  magistrate,  before  whom  the  charge  was 
made,  was  called  as  a  witness  on  the  part  of  the  plaintiff.  He  stated 
that  the  defendant  came  before  him  in  March,  1823,  that  the  examina- 
tion was  taken  in  writing;  and  that  he,  the  witness,  at  the  Easter 
quarter  sessions  delivered  the  examination  in  court,  either  to  Mr. 
Bloxam  the  clerk  of  the  peace  or  his  deputy,  then  sitting  at  the  table,- 
who  usually  received  such  papers.  He,  the  witness,  had  a  subpoena 
duces  tecum,  but  he  had  no  papers  with  him  respecting  the  matter ; 
he  said,  he  did  not  know  where  the  information  was,  but  it  was  not  in 
his  possession.  Edward  Bloxam  the  clerk  of  the  peace  stated,  that 
he  had  received  many  papers  from  Dr.  Timbrell  at  the  Easter  ses- 
sions, but  he  could  not  find  any  but  recognisances;  that  an  indict- 
•  ment  had  been  presented  to  the  grand  jury  on  behalf  of  the  defend- 
ant, but  that  it  was  returned  ignoramus,  and  it  was  usual  on  such  oc- 
casions to  throw  away  or  destroy  the  papers  relating  to  the  charge. 
It  was  insisted  on  the  part  of  the  plaintiff  that  this  was  sufficient  evi- 
dence to  show  that  the  original  papers  were  lost  or  destroyed,  and 
that  parol  evidence  of  the  contents  was  admissible.  The  learned 
judge  was  of  opinion,  that  as  Dr.  Timbrell  said  he  had  delivered  the 
information  to  Mr.  Bloxam  or  his  deputy,  the  latter  ought  to  have  been 
called  to  prove  that  the  examination  was  either  destroyed  or  not  to  be 
found ;  and,  consequently,  that  it  was  not  sufficient  evidence  of  the 
destruction  or  loss  of  the  document  to  let  in  parol  evidence  of  the 
contents.  A  rule  nisi  for  a  new  trial  was  obtained  in  Michaelmas 
term  by  Pearson,  on  the  ground,  that  under  the  circumstances  proved, 
parol  evidence  was  admissible. 

Best,  J.^°  Secondary  evidence  is  not  to  be  admitted  until  a  party 
has  taken  all  reasonable  pains  to  obtain  the  primary  evidence.  The 
degree  of  trouble  to  be  taken  for  that  purpose  depends  upon  the  na- 
ture of  the  instrument.  If  the  instrument  be  of  value,  or  of  such  a 
nature  that  the  reasonable  presumption  is,  that  it  is  in  existence,  strict- 
er evidence  is  required  in  order  to  show  that  it  is  destroyed  or  lost. 
If  it  be  an  instrument  of  no  value,  then  the  reasonable  presumption 
being,  that  it  has  been  destroyed  or  lost,  slight  evidence  only  of  its 

18  statement  condensed  and  opinions  of  Bayley  and  Ilolroyd,  JJ.,  omitted. 


Sec.  1)  CONTENTS  OF  A    DOCUMENT  955 

destruction  or  loss  is  required.  That  principle  is  fully  established 
by  the  case  of  Brewster  v.  Sewell,  3  B.  &  Aid.  296.  Now  it  is  impos- 
sible, that  the  plaintiff  in  this  case  should  have  any  interest  in  keep- 
ing back  the  original  information.  Then  has  he  taken  all  reasonable 
pains  to  procure  the  best  evidence.  In  the  first  place,  in  whom  ought 
the  possession  of  such  an  instrument  to  be?  It  appears  that  it  is  not 
the  practice  in  cases  of  misdemeanors  to  return  these  informations  to 
the  assizes  or  sessions.  It  is  not  required  by  law.  The  plaintiff  de- 
livered to  Dr.  Timbrell  a  subpoena  duces  tecum,  commanding  him  to 
produce  the  original  depositions.  He  ought  to  have  told  the  plaintiff 
then  that  he  could  not  comply  with  that  subpoena,  but  without  being 
told  that,  the  plaintiff  goes  further  and  subpoenas  the  clerk  of  the 
peace.  The  plaintiff,  therefore,  provided  himself  with  the  testimony  of 
the  person  who  ought  to  have  had  the  depositions  if  they  were  not 
returned  to  the  sessions,  and  of  the  person  who  ought  to  have  had 
them  if  they  had  been  returned.  If  the  deputy  of  Mr.  Bloxam  received 
them,  he  received  them  for  his  master,  and  in  due  course  would  have 
placed  them  among  his  papers,  and  not  being  found  among  them,  the 
fair  presumption  is,  that  they  are  lost  or  destroyed. 
Rule  absolute. 


GILBERT  V.  BOYD  et  al. 
(Supreme  Court  of  Missouri,  1857.    25  Mo.  27.) 

This  was  an  action  against  the  trustees  of  the  "African  Methodist 
Episcopal  Church"  to  recover  the  value  of  the  services  of  plaintiff 
as  sexton  of  said  church.  The  plaintiff  recovered  before  the  justice 
of  the  peace.  An  appeal  was  taken  to  the  Law  Commissioner's  Court. 
The  plaintiff  offered  in  evidence  a  certified  copy  of  a  deed  to  the 
defendants  as  trustees  of  the  African  Methodist  Episcopal  Church, 
and  offered  to  prove  that  the  original  was  not  in  his  possession,  or 
within  his  power  or  control.  The  counsel  for  defendants  objected 
to  the  admission  of  the  copy  on  the  ground  that  no  notice  had  been 
served  requiring  the  production  of  the  original.  The  objection 
was  sustained.  Plaintiff  also  offered  to  prove  by  a  witness  that  de- 
fendants were  the  acting  trustees  of  said  church.  Defendants  ob- 
jected to  the  reception  of  this  evidence  on  the  ground  that  there 
was  better  evidence,  and  that  the  books  of  the  church  should  be  pro- 
duced. The  objection  was  sustained.  The  plaintiff  submitted  to  a 
non-suit. 

Scott,  Judge.  The  46th  section  of  the  act  concerning  conveyances 
(R.  C.  1S45)  provides,  that  when  any  instrument  in  writing,  convey- 
ing or  affecting  real  estate,  is  acknowledged  or  proved,  certified  and 
recorded,  and  it  shall  be  shown  to  the  court  that  such  instrument  is 
lost,  or  not  within  the  power  of  the  party  wishing  to  use  the  same, 
the  record  thereof,  or  the  transcript  of  such  record,  certified  by  the 


956  THE  BEST  EVIDENCE  (Ch.  6 

recorder,  under  the  seal  of  his  office,  may  be  read  in  evidence  without 
further  proof.  As  the  statute  prescribes  the  state  of  circumstances 
which  authorizes  the  deed  to  be  read  in  evidence,  we  do  not  con- 
ceive that  the  court  had  any  authority  to  require  any  other  fact  to 
be  proved  in  order  to  make  it  testimony  in  the  cause.  The  party 
offering  the  transcript  was  entitled  to  read  it  upon  proof  that  the 
original  was  not  within  his  power,  and  the  court  should  not  have 
required  him  to  prove  a  notice  to  produce  the  original. 

As  the  record  stands,  we  do  not  see  that  there  was  any  written 
evidence  of  the  appointment  of  the  trustees.  If  there  was  none,  the 
fact,  of  course,  might  have  been  proved  by  parol.  We  do  not  know 
that  the  rule  which  permits  civil  officers  and  officers  of  corporations 
to  be  proved  to  be  such  by  reputation  and  their  acts  extends  to  pri- 
vate trustees  when  there  is  written  evidence  of  their  appointment. 
It  is  said  an  agent  may  prove  his  agency  when  it  is  by  parol.  Greenl. 
§  416.  In  general,  the  fact  of  an  agency  cannot  be  proved  by  parol, 
unless  the  non-production  of  the  writing  is  first  accounted  for.  Cow- 
en's  Notes,  1208.  The  official  character  of  officers,  both  civil  and  cor- 
porate, may  be  proved  by  acts  and  reputation.  Cowen's  Notes,  554; 
United  States  v.  Dandridge,  12  Wheat.  64,  6  L.  Ed.  552.  The  other 
judges  concurring,  the  judgment  will  be  reversed,  and  the  cause  re- 
manded.^' 


RIGGS  V.  TAYLOE. 
(Supreme  Court  of  the  United  States,  1824.    9  Wheat.  483,  6  L.  Ed.  140.) 

Todd,  J.^''  This  was  an  action  on  the  case,  brought  by  the  plaintiff 
against  the  defendant,  in  the  circuit  court  of  the  District  of  Columbia, 
upon  a  contract  in  writing,  entered  into  between  the  plaintiff  and  de- 
fendant, for  the  sale  of  bank  stock  of  the  Central  Bank  of .  Georgetown. 
At  the  time  that  this  contract  was  entered  into,  each  party  had  a 
counterpart  of  the  contract,  and  the  plaintiff,  alleging  the  loss  of  his, 
gave  notice  to  the  defendant  to  produce,  upon  the  trial,  the  one  which 
he,  the  defendant,  had;  but  the  defendant  decHned  producing  it, 
stating  that  he  had  lost  his  also.  In  consequence  of  these  losses,  the 
plaintiff,  upon  the  trial  of  the  cause,  oft'ered  to  prove,  by  a  person 
who  was  a  witness  to  the  contract,  and  had  subscribed  it  as  such, 
the  contents  of  the  contract,  and  to  entitle  himself  to  give  this  testi- 
mony, made  the  following  affidavit:  "The  plaintiff  in  this  cause 
makes  oath,  in  relation  to  the  memorandum  of  agreement  between 

18  But  see  Scott  v.  Bassett,  174  111.  390,  51  N.  E.  577  (1898),  where  a  much 
stricter  showing  was  roiiuired  as  to  prior  deeds  in  the  chain  of  title  of  the 
party  offering  the  record  copy. 

The  wording  of  the  recording  acts  differs  so  greatly  that  it  is  impracticable 
to  work  out  the  various  situations,  which  may  arise  under  them. 

17  Part  of  opinion  omitted. 


Sec.  1)  CONTENTS  OF  A  DOCUMENT  957 

the  defendant  and  himself,  relative  to  the  stock  in  the  declaration 
mentioned,  that  his  impression  is  that  he  tore  up  the  same,  after  the 
transfer  of  the  stock,  believing  that  the  statements  upon  which  the 
contract  had  been  made  were  correct,  and  that  he  would  have  no 
further  use  for  the  paper.  He  is  not  certain  that  he  did  tear  it  up,  and 
does  not  recollect  doing  so,  but  such  is  his  impression.  If  he  did  not 
tear  it  up,  it  has  become  lost  or  mislaid ;  and  that  he  has  searched  for 
it  among  his  papers  repeatedly,  and  cannot  find  it."  The  defendant 
objected  to  this  testimony,  and  insisted  that  no  evidence  ought  to  be 
given  of  the  contents  of  the  said  contract.  The  court  sustained  the  ob- 
jection; whereupon  a  verdict  and  judgment  was  given  for  the  de- 
fendant. The  plaintiff  filed  a  bill  of  exceptions  to  the  opinion  of  the 
court,  excluding  the  evidence  aforesaid  from  going  to  the  jury,  and  the 
cause  is  brought  up  to  this  court  by  a  writ  of  error. 

The  only  question  to  be  decided  by  this  court  is,  whether  the  cir- 
cuit court  erred  in  rejecting  the  said  evidence. 

Whether  the  plaintiff  in  the  cause  was  a  competent  witness  to 
prove  the  loss  or  destruction  of  the  written  agreement,  referred  to  in 
the  bill  of  exceptions,  need  not  be  inquired  into,  as  it  was  not  objected 
to  in  the  court  below,  and  the  question  was  waived  by  the  defend- 
ant's counsel  in  this  court. 

The  admissibility  of  evidence  of  the  loss  of  a  deed  or  other 'written 
instrument,  is  addressed  to  the  court,  and  not  to  the  jury. 

The  general  rule  of  evidence  is,  if  a  party  intend  to  use  a  deed,  or 
any  other  instrument,  in  evidence,  he  ought  to  produce  the  original, 
if  he  has  it  in  his  possession ;  but  if  the  instrument  is  in  the  posses- 
sion of  the  other  party,  who  refuses  to  produce  it  after  a  reasonable 
notice,  or  if  the  original  is  lost  or  destroyed,  secondary  evidence,  which 
is  the  best  that  the  nature  of  the  case  allows,  will  in  that  case  be  ad- 
mitted. Phillips  on  Evid.  399.  The  party,  after  proving  any  of 
those  circumstances,  to  account  for  the  absence  of  the  original,  may 
read  a  counterpart,  or,  if  there  is  no  counterpart,  an  examined  copy,  or, 
if  there  should  not  be  an  examined  copy,  he  may  give  parol  evidence  of 
the  contents. 

It  is  contended  by  the  defendant's  counsel  that  the  affidavit  is  de- 
fective, not  being  sufficiently  certain  or  positive  as  to  the  loss  of  the 
original  writing.  The  affiant  only  states  his  impression  that  he  tore 
it  up;  and  if  he  did  not  tear  it  up,  it  has  become  lost  or  mislaid; 
that  this  is  in  the  alternative,  and  not  certain  or  positive.  We  do 
not  concur  in  this  reasoning.  An  impression  is  an  image  fixed  in 
the  mind — it  is  belief ;  and  believing  the  paper  in  question  was  de- 
stroyed, has  been  deemed  sufficient  to  let  in  the  secondary  evidence. 
Phillips  on  Evid.  399;  7  East,  66;  8  East,  284.  The  alternative 
alluded  to  is,  "if  he  did  not  tear  it  up,  it  has  become  lost  or  mislaid." 
Now,  if  he  tore  it  up  it  was  destroyed;  if  it  was  not  destroyed  it  was 
lost  or  mislaid;   in  either  event  it  was  not  in  the  power  or  possession 


958  THE  BEST  EVIDENCE  (Ch.  6 

of  the  affiant,  which,  we  think,  is  sufficiently  certain  and  positive  to 
let  in  the  secondary  evidence. 

It  is  further  contended  that  it  appears  from  the  plaintiff's  own 
showing  the  destruction  or  loss  of  the  writing  was  voluntary  and  by 
his  default;  in  which  case  he  ought  not  to  be  permitted  to  prove  its 
contents.  It  will  be  admitted  that  where  a  writing  has  been  volun- 
tarily destroyed,  with  an  intent  to  produce  a  wrong  or  injury  to  the 
opposite  party,  or  for  fraudulent  purposes,  or  to  create  an  excuse  for 
its  non-production,  in  such  cases  the  secondary  proof  ought  not  to  be 
received;  but  in  cases  where  the  destruction  or  loss  (although  volun- 
tary) happens  through  mistake  or  accident,  the  party  cannot  be 
charged  with  default.  In  this  case  the  affiant  states  that  if  he  tore 
up  the  paper,  it  was  from  a  belief  that  the  statements  upon  which 
the  contract  had  been  made  were  correct,  and  that  he  would  have  no 
further  use  for  the  paper.  In  this  he  was  mistaken.  If  a  party 
should  receive  the  amount  of  a  promissory  note  in  bills,  and  destroy 
the  note,  and  it  was  presently  discovered  that  the  bills  were  forgeries, 
can  it  be  said  that  the  voluntary  destruction  of  the  note  would  pre- 
vent the  introduction  of  evidence  to  prove  the  contents  thereof ;  or, 
if  a  party  should  destroy  one  paper,  believing  it  to  be  a  different  one, 
will  this  deprive  him  of  his  rights  growing  out  of  the  destroyed  pa- 
per? We  think  not.  Cases  of  voluntary  destruction  of  papers,  aris- 
ing from  mistake,  as  well  as  from  accident,  might  be  multiplied  ad- 
infinitum.  In  this  case,  the  evidence  offered  was  that  of  the  subscrib- 
ing witness  to  the  writing ;  it  was  the  best  evidence  that  the  nature  of 
the  case  admitted,  which  was  in  the  possession  or  power  of  the  party. 
This  court  is  therefore  of  opinion  the  circuit  court  erred  in  refusing  to 
let  the  said  evidence  go  to  the  jury.^^     *     *     * 


THE  COUNT  JOANNES  v.  BENNETT. 

(Supreme  Judicial  Court  of  Massachusetts,  1S62.    5  Allen,  1G9,  SI  Am. 

Dec.  738.) 

Tort  brought  on  the  12th  of  June,  1860,  in  the  name  of  "The  Count 
Joannes,  (born  'George  Jones,')"  for  two  libels  upon  him  contained  in 
letters  to  a  woman  to  whom  he  was  then  a  suitor,  and  afterwards  mar- 
ried, endeavoring  to  dissuade  her  from  entering  into  the  marriage. 
*    *    * 

To  sustain  the  second  count,  the  plaintiff  testified  that  he  received 
the  letter  therein  set  forth  from  his  intended  wife,  and  on  the  1st 
of  June  1860,  the  day  before  his  marriage  to  her,  he  burned  it  and 
did  not  take  a  copy;  and  he  was  then  allowed  under  objection  to 
repeat  the  contents  from  memory. 

I'tAnd  HO  in  Steele  v.  Lord.  70  X.  Y.  2S0,  2G  Ain.  Rep.  OOli  (1S77),  where 
the  party  destroyed  certain  canceled  checks  and  vouchers  In  accordance  with 
hl.s  regular  practice. 


Sec.  1)  CONTENTS  OF  A  DOCUMENT  950 

The  judge  ruled  that  neither  of  the  letters  was  a  privileged  com- 
munication ;  and  a  verdict  was  returned  for  the  plaintiff.  The  de- 
fendant alleged  exceptions. 

BiGELOW,  C.  J.^"  (after  holding  that  the  publication  was  not  privi- 
leged). But  on  another  point  raised  at  the  trial,  we  arc  all  of  opin- 
ion that  the  ruling  of  the  court  was  erroneous.  In  support  of  his  sec- 
ond count,  the  plaintiff  was  permitted  to  testify  concerning  the  contents 
of  the  alleged  libel,  after  it  had  appeared  that  he  had  voluntarily  de- 
stroyed the  letter  in  which  it  was  contained.  This  we  think  was  a 
violation  of  the  cardinal  principle  that,  where  it  appears  that  a  party 
has  destroyed  an  instrument  or  document,  the  presumption  arises  that 
if  it  had  been  produced  it  would  have  been  against  his  interest  or  in 
some  essential  particulars  unfavorable  to  his  claims  under  it.  "Con- 
tra spoliatorem  omnia  presumuntur."  In  the  absence  of  apy  proof 
that  the  destruction  was  the  result  of 'accident  or  mistake,  or  of  other 
circumstances  rebutting  any  fraudulent  purpose  or  design,  especially 
where  as  in  the  case  at  bar  it  appears  that  the  paper  was  voluntarily 
and  designedly  burned  by  the  party  who  relies  on  it  in  support  of  his 
action,  the  inference  is  that  the  purpose  of  the  party  in  destroying 
it  was  fraudulent,  and  he  is  excluded  from  offering  secondary  evi- 
dence to  prove  the  contents  of  the  document  which  he  has  by  his  own 
act  put  out  of  existence.  If  such  were  not  the  rule,  and  a  party  could 
be  permitted  to  testify  to  the  language  or  purport  of  written  papers 
which  he  had  wilfully  destroyed,  in  support  of  his  right  of  action 
against  another,  great  opportunities  would  be  afforded  for  the  com- 
mission of  the  grossest  frauds.  A  person  who  has  wilfully  destroyed 
the  higher  and  better  evidence  ought  not  to  be  permitted  to  enjoy  the 
benefit  of  the  rule  admitting  secondary  evidence.  He  must  first  rebut 
the  inference  of  fraud  which  arises  from  the  act  of  a  voluntary  de- 
struction of  a  written  paper,  before  he  can  ask  to  be  relieved  from  the 
consequences  of  his  act  by  introducing  parol  evidence  to  prove  his 
case.  Thus  it  has  been  held  that,  when  a  note  was  burned  by  the 
holder  a  short  time  before  it  fell  due,  he  was  bound  to  show  in  an 
action  upon  a  note  that  the  act  of  destruction  was  honest  and  justih- 
able,  or  he  could  not  recover ;  and  even  an  alleged  negligent  destruc- 
tion or  loss  of  an  instrument,  unaccompanied  by  evidence  or  explana- 
tion to  rebut  the  suspicion  or  inference  of  a  fraudulent  design,  will 
not  authorize  secondary  evidence  of  the  contents  of  the  instrument. 
Blade  v.  Noland.  12  Wend.  (N.  Y.)  173.  27  Am.  Dec.  126.  See,  also, 
Broadwell  v.  Stiles,  8  N.  J.  Law,  58;  Riggs  v.  Tayloe,  9  Wheat.  483, 
487,  6  L.  Ed.  140;  Renner  v.  Bank  of  Columbia,  9  Wheat.  581.  6  L. 
Ed.  166.  This  doctrine  is  especially  applicable  to  actions  for  libel,  in 
which  the  language  used,  and  the  sense  and  meaning  which  properly 
attach  to  it,  constitute  the  gist  of  the  action. 

In  the  case  at  bar,  the  plaintiff  offered  no  evidence  to  show  the 

i»  Statement  condensed. 


960  THE  BEST  EVIDENCE  (Ch.  6 

circumstances  under  which  he  destroyed  the  letter  referred  to  in  his 
second  count.     He  was  not  therefore  entitled  to  offer  any  proof  to 
show  the  contents.     On  this  ground  the  verdict  is  set  aside,  and  a 
New  trial  granted. 


FISHER  &  BALL  v.  CARTER. 
(Supreme  Court  of  Iowa,  1916.    17S  Iowa,  636,  160  N.  W.  15.) 

Ladd,  J. 2°  The  petition  is  in  two  counts,  one  alleging  the  employ- 
ment of  plaintiffs  by  defendant  to  find  a  purchaser  for  his  farm  in 
Kansas,  and  the  reasonable  value  of  so  doing,  and  the  other  alleging 
an  agreement  to  pay  $1  per  acre  for  such  services.    *    *    * 

H.  Henten,  with  whom  defendant  exchanged  farms,  resided  at 
Albany,  Mo.  Fisher  testified  to  having  written  Henten  a  letter  and 
to  have  deposited  it  in  the  United  States  mails  properly  addressed  to 
him  at  Albany,  Mo.,  and  that  he  did  not  have  the  original  or  know 
its  whereabouts,  and  then  identified  a  copy,  unsigned,  as  a  true  copy 
of  such  letter.  The  copy  was  received  in  evidence  over  an  objection 
that  there  was  no  sufficient  excuse  shown  for  not  producing  the  orig- 
inal, and  in  any  event  that  the  letter  was  unsigned.  Even  though  un- 
signed, and  frequently  the  signature  is  not  impressed  on  the  copy,  the 
witness  testified  that  he  wrote  the  original  and  mailed  it,  and  this 
sufficiently  identified  it  as  his,  even  though  not  signed.  Was  the  ab- 
sence of  the  original  sufficiently  accounted  for?  That  the  best  evi- 
dence of  which  the  case  is  susceptible  must  have  been  adduced  is  the 
well-established  rule,  and  our  inquiry  is  limited  to  ascertaining  wheth- 
er a  copy  of  a  letter  is  to  be  regarded  as  such  evidence  upon  a  showing 
that  the  original  is  in  the  hands  of  a  third  party  beyond  the  jurisdic- 
tion of  the  court.  In  Bullis  v.  Easton,  96  Iowa,  513,  65  N.  W.  395, 
and  Simons  v.  Petersberger,  171  Iowa,  564,  151  N.  W.  392,  the  show- 
ing was  that  the  originals  could  not  be  obtained  and  secondary  evi- 
dence of  their  contents  held  rightly  received;  and  in  Waite  v.  High, 
96  Iowa,  742,  65  N.  W.  397,  a  remark  is  to  be  found  that:  "It  does 
not  follow  that,  because  the  books  were  in  another  state,  their  pro- 
duction at  the  trial  could  not  havebeen  secured."  ^^     *     *     * 

20  Part  of  opinion  omitted. 

21  In  the  omitted  passage  the  court  cited  the  foHowlncr  cases  as  sustaining 
the  view  tliat  the  fact  tliat  a  documont  was  in  tlie  hands  of  a  third  person 
heyond  the  jurisdiction  furaislied  sufhcient  pround  for  the  admission  of  .sec- 
ondary evidence:  Bowden  v.  Achor,  O't  Ga.  24.3,  22  S.  E.  254  (ISO."));  Zeller- 
hach  V.  AlionherR,  99  Cal.  .^T,  3.3  Pac.  786  (1893) ;  Butlor  v.  Mail  &  Express 
I'ul).  Co..  171  N.  Y.  208,  63  N.  E.  951  (1902) ;  Ilovle  v.  ISfann.  144  Ala.  516.  41 
South.  8.35  (190.J) ;  Vinal  v.  Oilman,  21  W.  Va.  301,  45  Am.  Kep.  562  (1883) ; 
Burton  v.  Driggs,  20  Wall.  125,  22  L.  Ed.  299  (1873). 

And  a.s  sustaining  the  conclusion  in  the  principal  case,  the  court  cited  Shaw 
V.  Mason,  10  Kan.  184  (1872);  McDonald  v.  Erhes,  231  111.  295,  S3  N.  B.  162 
(1907; ;  Wiseman  v.  Nortlicrn  Pac.  By.  Co.,  20  Or.  425,  26  Pac.  272.  23  Am. 
St.  Kep.  135  (1891) ;    Kirchner  v.  Laughlin,  6  N.  M.  300,  28  Pac.  505  (1892) ; 


Sec.  1)  CONTENTS  OF   A    DOCUMENT  901 

Secondary  evidence  of  the  contents  of  a  writing  is  received  as  the 
best  evidence  obtainable  only  upon  showing  that  the  original  writing 
cannot  be  produced  by  the  party  offering  such  evidence  within  a  rea- 
sonable time  by  the  exercise  of  reasonable  diligence.  Precisely  what 
must  be  done  to  constitute  such  diligence  depends  on  the  facts  of  each 
case. 

There  is  no  criterion  by  which  to  measure  the  necessary  effort,  but  in 
all  cases  the  party  asserting  the  loss  or  destruction  of  the  paper  or 
document  is  required  to  show :  "That  he  has  in  good  faith  exhausted 
in  a  reasonable  degree  all  the  sources  of  information  and  means  of 
discovery  which  the  nature  of  the  case  would  naturally  suggest,  and 
which  were  accessible  to  him."     1  Greenl.  Ev.  §  558. 

It  is  not  sufficient  that  the  witness  assert  that  it  is  lost;  he  must 
search  for  it  in  every  place  where  there  is  reasonable  probability  that 
it  may  be  found.  To  exact  any  less  diligence  would  impair  the  ad- 
vantage of  reducing  communications  or  agreements  to  writing.  This 
much  is  exacted  from  the  party  tendering  evidence  of  the  contents, 
not  because  of  the  power  of  the  court  to  order  the  production  of  the 
writing  found,  but  to  make  sure  that  the  court  has  the  best  evidence 
attainable  by  the  party  offering  it  on  which  to  base  its  judgment. 

That  the  instrument  may  be  in  another  jurisdiction  and  in  the  cus- 
tody of  a  third  party  should  not  relieve  the  party  desiring  to  avail 
himself  of  its  use  in  evidence  from  exercising  reasonable  diligence  to 
procure  the  original  writing  for  such  purpose.  The  best  evidence  ob- 
tainable is  quite  as  essential  to  the  administration  of  justice,  whether 
in  the  state  or  beyond  its  borders,  and  there  is  no  sound  reason  for 
relaxing  the  rule  exacting  diligence  in  its  production  when  found  where 
its  production  may  not  be  compelled.  What  will  constitute  such  dili- 
gence as  said  depends  on  the  facts  of  each  case,  on  the  character  and 
importance  of  the  writing,  the  purposes  for  which  it  is  to  be  used,  and 
the  place  it  would  naturally  be  kept.  If  such  an  one  as  the  owner 
likely  would  preserve  or  one  on  which  the  action  or  defense  is  found- 
ed a  more  thorough  search  would  be  exacted  than  were  the  paper  of 
little  importance.  Something  also  depends  on  whether  the  party  was 
aware  beforehand  that  it  would  be  required  in  the  course  of  the  trial 
or  this  developed  during  the  trial. 

Manifestly  there  is  some  room  for  the  exercise  of  sound  discretion 
in  determining  whether  the  degree  of  diligence  has  been  exercised. 
Surely  the  diligence  exacted  is  not  shown  where  no  effort  whatever  has 
been  put  forth  to  obtain  a  document  or  other  writing  beyond  the  juris- 
diction of  the  court.  Ordinarily  the  loan  or  use  of  it  for  the  pur- 
Justice  V.  Luther.  94  X.  O.  793  (ISSG) ;  rrin^joy  v.  Guss.  10  Old.  82.  SG  Pa*-. 
292.  S  Ann.  Cas.  412  (190G) ;  Brujier  v.  Trinceton  &  St.  M.  Mut.  Fire  Ins.  Co.. 
1''9  Wis  281,  ion  N.  W.  9."»  (lOOG)  ;  Wood  v.  Culli-n.  1.*^  Minn.  ."91  (CU.  :\(\~, 
[ISGSD;  Kearney  v.  Mayor,  92  N.  Y.  G17  (1S83) ;  Turner  v.  Yates,  10  How. 
14,  14  L.  Ed.  S24  (1S53). 

HiNT.Ev.— Gl 


902  THE  BEST  EVIDENCE  (Ch.  6 

poses  of  the  trial  may  be  had  for  the  mere  asking  or  its  production 
may  be  obtained  by  taking  the  deposition  of  its  custodian.  That  the 
production  of  writings  may  not  be  compelled  in  another  jurisdiction 
does  not  alone  show  that  they  are  inaccessible,  for  it  is  a  matter  of 
common  knowledge  tliat  ordinarily  they  may  be  and  are  procured  in 
one  of  the  methods  suggested,  and  that  refusal  to  furnish,  loan,  or 
produce  the  papers  as  required  is  exceptional.  A  somewhat  extended 
and  attentive  examination  of  the  authorities  has  convinced  us  that 
proof  that  writing  is  in  the  custody  of  a  third  party  in  another  juris- 
diction is  not  sufficient  showing  of  diligence  to  justify  a  court  in 
foregoing  the  advantage  of  the  original  paper  in  reaching  a  decision, 
that  such  proof  does  not  establish  inaccessibility,  even  though  its  pro- 
duction may  not  be  compelled,  and  that  reasonable  effort  to  procure 
without  success  or  conditions  reasonably  indicating  that  these  would 
have  been  of  no  avail  or  refusal  to  deliver  or  something  of  like  con- 
sequence should  be  shown  before  secondary  evidence  of  the  contents 
of  the  writing  is  received.  No  effort  whatever  was  made  by  appel- 
lee to  obtain  the  original  letter  either  by  borrowing  it  for  use  at  the 
trial  or  by  taking  the  deposition  of  Henten  and  having  it  attached 
thereto  in   connection  with  the   testimony. 

There  is  no  showing  that  the  copy  introduced  was  a  duplicate  of 
the  original,  and  for  this  reason  the  authorities  relied  on  by  appellee 
are  not  controlling.  See  International  Harvester  Co.  v.  Elfstrom,  101 
Minn.  263,  112  N.  W.  252,  12  L.  R.  A.  (N.  S.)  343,  118  Am.  St.  Rep. 
626,  11  Ann.  Cas.  107;  State  v.  Albertalli,  78  N.  J.  Law,  90,  7Z  Atl. 
128.  But  on  motion  for  new  trial  it  appeared  by  affidavit  of  Henten 
that  several  months  prior  to  the  trial  the  original  letter  had  been  de- 
livered to  defendant,  and  had  not  been  returned.  He  must  have  had 
it  then  at  the  time  of  the  trial,  and  if  the  copy  adduced  was  defective 
in  any  manner  might  have  corrected  it  by  producing  the  original.  The 
ruling  then,  though  erroneous,  was  without  prejudice.    *    *    * 

Judgment  affirmed.-^ 


HOWARD  V.  SMITH. 
(Court  of  Common  Pleas,  1S41.    3  Man.  &  G.  2.^4.) 

On  a  rule  nisi  to  enter  a  verdict  for  plaintiff  or  grant  a  new  trial  on 
the  ground  of  the  admission  of  improper  evidence  on  the  part  of  de- 
fendant.    The  facts  are  set  out  in  the  opinion.-^ 

TiNDAL,  C.  J.  This  case,  which,  as  well  as  that  of  Bethell  v.  Blcn- 
cowe,  (3  Man.  &  G.  119,)  involves  a  question  on  the  admissibility  of 
evidence  offered  to  prove  the  terms  of  a  tenancy,  has  stood  over  for 
the  consideration  of  the  court.    It  was  an  action  of  replevin,  in  which 

22  For  a  collection  of  the  later  cases,  see  note  to  Federal  Chemical  Co.  v. 
JenniiiKS,  L.  R.  A.  1017D,  529  (1917). 

23  Statement  condensed. 


Sec.  1)  CONTENTS  OF  A    DOCUMENT  903 

the  defendant,  as  bailiff  of  one  Micklethwaite,  acknowledged  the  tak- 
ing as  a  distress  for  rent  due  from  the  plaintiff  as  tenant  to  Mickle- 
thwaite at  ;£20.  per  annum,  payable  quarterly,  and  in  which  the  plain- 
tiff pleaded  non  tenuit  modo  et  forma. 

The  premises  in  question  had  been  before  held  under  a  written  agree- 
ment by  a  person  who  was  called  as  a  witness,  and  who  stated  that  the 
plaintiff,  in  a  conversation  with  him,  had  expressed  his  willingness  to 
take  the  premises  upon  the  same  terms  as  those  upon  which  he,  the  wit- 
ness, had  held  them.  Whereupon  they  went  together  to  Micklethwaite, 
who  agreed  that  the  plaintiff  should  have  them  on  the  same  terms.  The 
written  agreement  was  mentioned  in  the  conversation  between  the  wit- 
ness and  the  plaintiff,  but  it  was  not  produced,  either  on  the  occasion 
of  that  conversation  or  at  the  time  of  the  conversation  with  Mickle- 
thwaite. Another  witness  was  called,  who  proved  that  the  plaintiff  had 
stated  to  him  that  he  held  the  premises  at  i20.  a  year :  and  it  was  fur- 
ther proved  that  the  plaintiff  had  said  that  he  had  gone  to  Mickle- 
thwaite and  had  paid  him  £3,  towards  the  quarter's  rent  due  on  the  29th 
of  September. 

It  was  objected  that  after  what  had  passed  with  the  former  tenant 
respecting  this  written  agreement,  these  declarations  were  no.t  re- 
ceivable in  proof  of  the  terms  on  which  the  premises  were  held  by 
the  plaintiff,  for  the  purpose  of  showing  either  the  amount  of  the  rent, 
or  that  it  was  payable  quarterly.  But  we  are  of  opinion  that  the 
statements  made  by  the  plaintiff  himself  of  the  terms  upon  which  he 
w-as  actually  holding  the  premises,  were  admissible  against  him,  not- 
withstandmg  what  had  passed  respecting  the  written  agreement  under 
which  the  former  tenant  had  held ;  and  that  the  present  case  must  be 
governed  by  the  law  as  laid  down  in  Slatterie  v.  Pooley,  (6  M.  &  W. 
664.) 

Rule  discharged.^* 

24  The  following  colloquy  took  place  on  the  argument:  "Bompas,  Serjt.. 
contra.  Where  a  tenant  holds  under  a  written  instrument,  the  terms  of  the 
tenancy  cannot  be  proved  by  parol, — even  though  the  parol  testimony  be  ten- 
dered, in  an  action  to  which  the  tenant  is  a  party, — as  the  impression  left  on 
the  mind  of  the  witnes.s  by  statements  made  by  the  tenant.  [Erskine,  J. 
What  objection  can  there  be  to  the  reception  of  tlie  tenant's  own  statomonte 
against  himself?]  The  danger  of  misrepresentation  or  mistake  is  the  same 
as  it  would  be  if  the  witness  stated  the  impression  left  on  his  mind  froui 
having  read  a  written  document.  [Tindal,  C.  J.  Slattery  v.  Pooley,  in  the 
Exchequer  is  an  authority  against  you.]" 

In  Slattery  v.  Pooley,  6  M.  &  W.  664  (1S40),  the  court  announced  broadly 
that  whatever  the  adverse  party  said  had  always  been  received  against  him, 
though  it  involved  the  contents  of  a  writing. 

The  Court  of  Queen's  Bench  In  Ireland  refused  to  follow  this  view.  Law- 
less v.  Queale,  8  Ir.  L.  Rep.  382  (1&15). 

For  a  collection  of  the  cases,  .see  Swing  v.  Cloquet  Lumber  Co.,  121  Minn. 
221,  141  X.  W.  117,  L.  R.  A.  191SC,  660  (1913),  annotated. 


964  THE  BEST  EVIDENCE  (Cll.  6 

PRUSSING  V.  JACKSON. 
(Supreme  Court  of  Illinois,  1904.    20S  111.  S5,  69  N.  E.  771.) 

BoGGS,  J.='  This  was  an  action  for  libel  against  the  plaintiff  in 
error  by  the  defendant  in  error.  The  declaration  charged  that  the 
plaintiff  in  error  composed  and  caused  to  be  published  in  the  Chicago 
Times-Herald,  a  daily  newspaper  published  in  the  city  of  Chicago, 
a  certain  false,  scandalous,  defamatory,  and  libelous  article,  set  forth 
in  hasc  verba,  with  appropriate  innuendoes,  in  the  declaration.  The 
article  is  quiet  lengthy,  and  it  is  not  necessary  to  the  proper  disposition 
of  the  case  it  should  be  recited  in  this  opinion.     *     *     * 

\\'e  think,  however,  the  plaintiff  in  error  has  lawful  right  to  complain 
of  an  erroneous  ruling  of  the  court  as  to  the  admissibility  of  evidence. 
It  was  sought  to  maintain  the  action  against  the  plaintiff*  in  error  as  the 
author  of  the  alleged  libelous  publication  which  appeared  in  the  Chica- 
go Times-Herald.  He  was  in  no  wise  connected  with  the  manage- 
ment, control,  or  publication  of  the  newspaper,  and  had  no  interest 
therein.  The  action  was  against  him  on  the  alleged  ground  that  he 
was  the  author  of  a  statement  in  the  form  of  a  letter,  which  appeared 
as  a  part  of  the  publication,  and  that  he  had  given,  or  permitted  one 
Varian,  a  reporter  for  the  newspaper,  to  take,  the  letter  under  such 
circumstances  as  that  he  should  be  held  to  have  procured  it  to  be  pub- 
lished.   The  cause  was  tried  before  the  court  and  a  jury.     *     *     * 

Counsel  for  the  defendant  in  error,  however,  insist  that  the  judgment 
should  not  be  reversed  because  of  the  reception  in  evidence  of  the 
printed  -®  article,  for  the  reason  that  previous  to  its  reception  in  evi- 
dence declarations  of  the  plaintiff'  in  error  had  been  proven,  in  sub- 
stance, that  tlie  letter  which  appeared  in  the  publication  was  the  one 
which  the  reporter  had  received  in  the  office  of  the  plaintiff  in  error. 
The  defendant  in  error,  as  a  witness,  had  testified  that  the  plaintiff  in 
error  admitted  to  him  that  the  statement  published  in  the  newspaper 
was  the  same  statement  which  the  reporter,  Varian,  received  in  the 
office  of  the  plaintiff  in  error.  Counsel  now  insist — to  quote  from  their 
brief — that  "it  is  a  well-settled  principle  of  law  that  admissions  of  a 
party  against  himself  as  to  the  contents  of  a  writing  are  primary  evi- 
dence." This  contention  cannot  be  regarded  as  an  open  question  in  this 
state.  Strader  v.  Snyder,  67  III.  404,  was  an  action  on  the  case  brought 
by  Snyder  against  the  appellants  for  an  alleged  libel  published  in  a 
newspaper  called  the  Macomb  Eagle.  The  defendants  were  in  no  way 
connected  with  the  newspaper  establishment,  and  the  prosecution  was 
on  the  theory  that  they  had  prepared  the  manuscript,  and  delivered  it 
to  the  editor  for  publication.    The  court  permitted  the  plaintiff''s  coun- 

26  Part  of  opinion  omitted. 

2e  In  the  omitted  passage  the  court  held  that  it  did  not  snfliricntly  appear 
that  the  orifcinal  manuscript  could  not  be  obtained,  so  as  to  admit  the  printed 
article  as  a  copy. 


Sec.  1)  CONTENTS  OF   A    DOCUMENT  905 

sel  to  read  the  printed  article  in  evidence  without  first  producing  the 
original  manuscript.  We  there  held  it  was  error  to  permit  the  printed 
publication  to  be  read  to  the  jury  without  first  producing  or  accounting 
for  the  manuscript.     *     *     * 

To  hold  the  testimony  of  the  plaintiff  that  the  defendant  said  to  or 
in  the  hearing  of  such  plaintiff  that  a  writing  material  to  be  produced  in 
evidence  contained  certain  statements  to  be  sufficient  to  deprive  the 
defendant  of  the  right  to  be  judged  by  the  writing  itself  is  to  abrogate 
in  its  entirety  the  rule  that  the  contents  of  a  written  instrument  cannot 
be  proved  by  parol  in  the  absence  of  proof  accounting  for  and  excusing 
the  nonproduction  of  the  writing.  Such  testimony  is  proper  as  secon- 
dary proof  of  the  contents  of  an  instrument  which  has  been  shown  to  be 
lost,  or  its  production  in  some  legal  manner  excused.  It  is  true,  the 
defendant  in  error  caused  the  plaintiff  in  error  to  be  sworn  as  a  wit- 
ness, and,  over  the  objection  and  exception  of  the  plaintiff  in  error, 
asked  him  if  he  knew  who  composed  that  letter  which  appeared  in  the 
article,  and  the  witness,  being  required  by  the  court  to  answer,  re- 
plied, "Yes,  sir;  I  did.''  On  cross-examination  he  said  he  could  not 
say  whether  he  wrote  the  article  as  it  appeared  in  the  newspaper,  but 
that  he  wrote  a  letter  "similar  to  it,"  which  he  allowed  Mr.  \'arian, 
the  reporter  for  the  Times-Herald,  to  take  from  his  oftice;  that  he 
did  not  authorize  the  publication  of  the  article,  and  had  never  seen  the 
original  since  the  reporter  took  it.  The  court  erred  in  overruling  the 
objection  to  the  question  propounded  to  the  plaintiff  in  error  by  coun- 
sel for  the  defendant  in  error.  The  primary  evidence  of  the  contents 
of  the  writing  was  the  instrument  itself,  and  the  court  erred  in  forcing 
the  plaintiff  in  error  to  become  a  party  to  an  effort  to  prove  the  con- 
tents of  such  writing  by  the  preponderance  of  parol  proof  as  to  the 
statement  which  appeared  in  the  writing. 

The  judginent  of  the  Appellate  Court  and  that  of  the  circuit  court 
are  each  reversed,  and  the  cause  will  be  remanded  to  the  circuit  court 
for  such  other  and  further  proceedings  as  to  law  and  justice  shall  ap- 
pertain. 

Reversed  and  remanded. 


SWING  V.  CLOQUET  LUMBKR  CO. 

(Supreme  Court  of  Miimesota,  1913.     121  Minu.  221.  141  N.  W.  117.  L.  R.  A. 

1918C,  GGO.) 

Action  in  the  district  court  for  St.  Louis  county  by  the  trustee  for 
the  creditors  of  the  Union  Mutual  Fire  Insurance  Company  of  Cin- 
cinnati to  recover  $1,106.88,  the  amount  of  a  certain  assessment  levied 
against  defendant  as  a  policy  holder  in  said  company.     *     ♦     * 

The  case  was  tried  before  Ensign,  J.,  who  made  findings  and  or- 
dered judgment  in  favor  of  plaintiff  for  $591.25.  From  the  judg- 
ment entered  pursuant  to  the  order  for  judgment,  defendant  appealed. 


9G6  THE  BEST  EVIDENCE  (Cll.  6 

Hallam,  J.-^  *  *  *  2  Defendant  contends  that  there  is  no  com- 
petent proof  as  to  the  contents  of  the  premium  note  given  by  it  or 
of  the  poHcy  issued  by  plaintiff.  It  is  true  neither  document  was 
offered  in  evidence.  It  does  appear  that  a  premium  note  was  given 
and  that  a  pohcy  was  issued.  It  was  necessary  for  plaintiff  to  further 
prove,  by  competent  evidence,  the  amount  of  the  note  and  the  amount 
and  duration  of  the  policy. 

Plaintiff  offere^l  for  this  purpose  the  policy  register  of  the  com- 
pany. This  contains  entries  showing  the  issuance  of  policy  No.  2652, 
the  date  thereof,  tlie  original  amount  thereof,  the  amount  of  the 
premium  note,  the  amount  that  it  was  reduced  by  fire,  and  the  amount 
of  insurance  remaining  in  force.  Plaintiff  contends  that  the  policy 
register  is  competent  evidence  of  these  facts.  Pie  invokes  the  rule 
applied  to  stock  corporations  that,  where  the  name  of  an  individual  ap- 
pears on  the  stockbook  of  a  corporation  as  a  stockholder,  that  fact 
establishes  prima  facie  his  relation  as  a  stockholder  in  an  action  against 
him  to  enforce  a  stockholder's  liability.  -Holland  v.  Duluth  Iron  Min- 
ing &  Development  Co.,  65  Minn.  324,  68  N.  W.  50,  60  Am.  St.  Rep. 
480;  TurnbuU  v.  Payson,  95  U.  S.  418,  24  L.  Ed.  437.  It  is  un- 
necessary to  determine  whether  this  rule  is  to  be  so  extended  as  to 
make  a  policy  register  of  a  company  such  as  this  evidence  in  an  action 
of  this  sort  to  establish  the  relation  of  policy  holder,  the  amount  of 
the  policy,  and  the  existence  and  amount  of  the  premium  note.  It 
does  appear  in  this  case,  from  competent  evidence,  that,  the  two  as- 
sessments above  mentioned  were  paid  on  a  policy  bearing  the  num- 
ber 2652.  It  appears  that  defendant  sustained  a  loss  by  fire ;  that 
there  was  paid  by  the  insurance  company  to  defendant,  by  reason 
thereof  and  on  account  of  this  policy,  the  sum  of  $33.26;  that  de- 
fendant receipted  therefor,  and,  in  said  receipt,  recited  that  this  policy 
No.  2652  was  reduced  in  the  amount  of  this  loss,  leaving  the  sum  of 
$4,966.74  still  in  force.  It  further  appears  that  on  December  30, 
1890,  defendant  returned  to  the  company  this  policy  with  a  letter  con- 
taining the  following: 

"Herewith  return  as  requested, 

Prera.  Expires. 

26.J2  Gon'lForra.  .$5,000.00  fiVMIiO  July  1, 1894. 

"Kindly  give  us  proper  credit  for  return  premium  and  forward 
note  to  us  and  oblige." 

This  testimony  constitutes  an  admission  in  writing  of  the  essential 
parts  of  the  policy  and  of  the  premium  note.  Some  controversy  has 
existed  in  the  past  as  to  whether  the  contents  of  a  written  instrument 
may  be  proved  against  a  party  by  his  own  admissions,  and  the  ques- 
tion has  not  heretofore  been  decided  in  this  state.  Webster  v.  Fergu- 
son, 94  Minn.  86,  91,  102  N.  W.  213.  The  weight  of  authority  is 
to  the  effect  that  such  proof  is  competent.     Slatterie  v.  Pooley,  6  M. 

27  Statenieut  condensed  and  i)arl  of  opinion  omitted. 


Sec.  2)  OTIIRU   FACTS  OCT 

&  W.  (Eng.)  664;  2  Wigmore,  Evidence,  §  1255  et  seq.  This  rule  is 
sound  in  principle,  at  least  when  the  admissions  are  in  writing,  as 
they  are  in  this  case.  We  hold  tliat  a  written  admission  of  tiie  con- 
tents of  a  written  document  may  he  estabHshcd  against  the  party  mak- 
ing the  admission,  without  production  of  the  document  or  accounting 
for  its  nonproduction.  This  evidence  is  in  this  case  ample  and  con- 
clusive, w^ithout  resort  to  the  policy  register  at  all.  *  *  * 
Judgment  modified. 


SECTION  2.— OTHER  FACTS 


BERRYMAN  v.  WISE. 

(Court  of  King's  Bench,  1791.    4  Term  R.  36G.) 

This  was  an  action  of  slander  by  an  attorney.  The  declaration 
stated  that  the  plaintiff  was  an  attorney  of  this  Court,  and  having  been 
employed  in  a  particular  cause  had  received  a  certain  sum  of  money, 
which  the  defendant  charged  him  with  swindling,  adding  a  threat  that 
he  would  move  the  Court  to  have  him  struck  off  the  roll  of  attornies. 
At  the  trial  at  the  last  York  assizes  before  Thompson,  B.  the  plaintiff 
proved  the  words,  and  his  having  been  employed  as  an  attorney  in 
that  and  other  suits.  The  defendant's  counsel  objected  that  the  plain- 
tiff had  not  proved  the  first  allegation  in  the  declaration,  namely, 
that  he  was  an  attorney  of  this  Court,  which  could  only  be  proved, 
by  his  admission,  or  by  a  copy  of  the  roll  of  attornies :  but  the  ob- 
jection was  overruled,  and  the  plaintiff  obtained  a  verdict,  the  learned 
judge  reserving  the  point,  with  liberty  to  move  to  enter  a  non-suit. 

The  Court  were  of  opinion  that  this  was  sufficient  proof,  for  the 
defendant's  threat  imported  that  the  plaintiff  was  an  attorney.     And 

Duller,  J.,  said  that  in  the  case  of  all  peace  officers,  justices  of  the 
peace,  constables  &c,  it  was  sufficient  to  prove  that  they  acted  in  those 
characters,  without  producing  their  appointments,  and  that  even  in  the 
case  of  murder.  The  excise  and  custom-house  officers  indeed  fall 
under  a  diiferent  consideration :  but  even  in  those  cases  evidence  was 
admitted  both  in  criminal  and  civil  suits  to  shew  that  the  party  was  a 
reputed  officer  prior  to  the  11  Geo.  I.  c.  30,  s.  32.  In  actions  brought 
by  attornies  for  their  fees,  the  proof  now  insisted  on  has  never  been 
required.  Neither  in  actions  for  tithes  is  it  necessary  for  the  incum- 
bent to  prove  presentation,  institution,  and  induction  ;  proof  that  he 
received  the  tithes,  and  acted  as  the  incumbent,  is  sufficient. 

Rule  discharged. 


9G8  THE  BEST  EVIDENCE  (Cll.  6 

THE  KING  V.  INHABITANTS  OF  COPPULL. 
(Court  of  King's  Bench,  ISOl.    2  East,  25.) 

Two  justices  by  an  order  removed  Henry  Bentham,  his  wife,  and 
three  children  by  name,  from  the  township  of  Standish  with  Lang- 
tree  to  the  township  of  Coppull,  both  in  the  county  of  Lancaster.  The 
Sessions  on  appeal  confirmed  the  order,  subject  to  the  opinion  of  this 
Court  on  a  case,  stating,  That  the .  respondents  proved  by  the  evi- 
dence of  the  pauper,  that  his  father  many  years  ago  purchased  a  small 
estate  for  less  than  £30.  in  the  township  of  Coppull,  and  occupied  it 
himself  for  about  five  years,  during  which  time  the  pauper  was  part 
of  his  father's  family ;  and  that  the  pauper's  father  during  his  occu- 
pation of  the  estate  actually  paid  the  parish  rates  or  assessments  in 
respect  of  his  estate :  but  the  respondents  did  not  produce  any  rates 
or  assessments,  and  had  not  given  any  notice  for  the  production  of  the 
assessments  or  rates.  The  appellants  objected,  that  without  the  pro- 
duction of  them,  or  having  given  notice  to  produce  them,  there  was 
no  legal  or  proper  evidence  that  the  pauper's  father  was  charged  for 
the  same. 

Lord  Kenyon,  C.  J.  It  is  impossible  to  argue  that  parol  evidence 
may  be  given  of  rates  which  are  not  produced,  nor  any  notice  proved 
to  produce  them,  nor  any  reasonable  account  given  for  their  non- 
production.  The  best  evidence  was  not  given  which  the  nature  of 
the  thing  would  admit  of. 

Grose,  J.  It  is  in  every  day's  experience  to  reject  parol  evidence  of 
a  writing  which  may  and  ought  to  be  produced. 

Per  Curiam.     Orders  quashed. 


COTTERILL  v.  HOBBY. 
(Court  of  King's  Bench,  1S25.    4  Barn.  &  C.  465.) 

The  declaration  stated,  that  at  the  time  of  the  grievances  complained 
of,  a  certain  close,  situate,  &c.,  was  in  the  possession  and  occupation  of 
one  H.  C.  Morgan,  as  tenant  thereof  to  the  plaintiff,  the  reversion  then 
and  still  belonging  to  the  plaintiff,  and  that  the  defendant  cut  down  a 
quantity  of  branches  off  and  from  certain  trees  then  standing  and 
growing  in  and  upon  tlie  said  close;  second  count  trover  for  timber. 
Plea,  the  general  issue.  At  the  trial  before  Garrow,  B.,  at  the  last  Lent 
assizes  for  Hereford,  Morgan  was  called  as  a  witness  for  the  plaintiff, 
and  proved  that  he  was  tenant  to 'the  ])laintiff  of  the  close  in  question, 
under  a  written  agreement,  that  defendant  lopped  some  branches  oiT 
the  trees  growing  there,  and  carried  them  away.  No  evidence  of  the 
value  was  given.  For  the  defendant,  it  was  objected  that  the  agree- 
ment under  which  Morgan  held  should  have  been  produced,  for  that 
it  could  not  otherwise  appear  that  the  plaintiff  was  reversioner  of  the 


Sec.  2)  OTHER   FACTS  90)0 

trees.  The  learned  Judge  refused  to  nonsuit  the  plaintifT,  and  the  jury 
returned  a  general  verdict  with  £5.  damages.  In  Easter  term,  Camp- 
bell obtained  a  rule  nisi  for  entering  a  nonsuit  against  which, 

Taunton,   and   Oldnall   Russell,  now   showed   cause. 

BaylEy,  J.  It  having  been  shown  that  Morgan  held  under  a  written 
agreement,  I  am  of  opinion  that  the  terms  of  the  holding  could  only 
be  proved  by  that  instrument,  and,  consequently,  that  the  verdict  on  the 
first  count  cannot  be  sustained.  But  the  objection  does  not  apply  to  the 
count  in  trover.  The  trees  were  equally  the  property  of  the  plaintiff, 
whether  they  were  or  were  not  excepted  out  of  the  demise;  and  it 
having  been  proved  that  the  defendant  carried  away  some  of  the 
branches,  I  think  that  the  plaintiff  is  entitled  to  nominal  damages,  al- 
tliough  no  proof  of  the  value  was  given. 

HoRLOYD  and  LittliCdalE,  JJ.,  concurred. 

Verdict  reduced  to  Is.^^ 


DOE  ex  dem.  BINGHAM  et  al.  v.  CARTWRIGHT. 
(Court  of  King's  Bench,  1820.    3  Barn.  &  Aid.  326.) 

This  was  an  ejectment  tried  before  Richardson,  J.,  at  the  last  as- 
sizes for  the  county  of  Worcester.  The  bailiff  proved,  that  on  Lady- 
day,  1818,  he  agreed  tliat  the  land  in  question  should  be  let  to  the  de- 
fendant, and  that  he  should  sign  an  agreement  with  a  surety.  A  mem- 
orandum of  agreement  was  drawn  up:  the  terms  were  read  over  to  the 
defendant,  and  he  assented  to  them.  However,  he  never  signed  the 
agreement,  or  brought  any  surety.  A  notice  to  quit  was  served  before 
Midsummer-day,  1818,  to  quit  at  the  Lady-day  following.  It  was  ob- 
jected, that  the  terms  of  the  tenancy,  the  time  at  which  it  was  to  com- 
mence and  end,  ought  to  be  proved  by  the  written  memorandum,  drawn 
up  by  the  witness,  and  assented  to  by  the  defendant.  The  learned 
Judge  was  of  that  opinion,  and  nonsuited  the  plaintiff;  but  reserved 
liberty  to  move  to  enter  a  verdict.  A  rule  nisi  having  been  obtained  for 
that  purpose  in  last  Michaelmas  term, 

Abbott,  C.  J.  I  think,  that  in  this  case,  there  never  existed  any 
written  agreement  between  the  parties.  The  paper  referred  to  at  the 
trial  would  not  become  an  agreement,  till  the  defendant  had  brought  a 
surety  and  executed  it.  It  contained  a  mere  proposal ;  and,  upon  the 
evidence,  it  appears  to  have  been  an  unaccepted  proposal.  The  defend- 
ant might  have  been  turned  out  of  the  premises  without  any  notice  to 
quit ;  and  there  could,  therefore,  be  no  necessity  for  producing  this 
memorandum. 

Rule  absolute.-' 

2s  For  an  elaborate  review  of  the  English  cases  on  this  point,  see  Rtrother 
V.  Barr,  5  Bing.  130  (1828). 

2  0  And  so  in  Rex.  v.  Wrangle,  2  Adol.  &  El.  514  (1835),  where  an  unsigned 
written  memorandum  of  an  oral  agreement  had  been  prepared  at  the  dictation 
of  both  parties. 


970  THE  BEST  EVIDENCE  (Cll.  6 

KEENE  V.  MEADE. 

(Supreme  Court  of  the  United  States,  1S30.    3  Tet.  1,  7  L.  Ed.  oSl.) 

In  the  circuit  court,  the  testator  of  the  defendant  in  error,  Richard 
W.  Meade,  instituted  an  action  against  Richard  R.  Keene,  the  plaintiff 
in  error,  for  money  lent  and  advanced  to  him,  in  Spain,  where  Mr. 
Meade,  at  the  time  of  the  loan  resided,  and  carried  on  business  as  a 
merchant.  In  order  to  establish  the  claims  of  the  plaintiff  below,  a  com- 
mission was  issued  to  Cadiz ;  and  under  the  same,  certain  depositions 
were  taken,  which  were  returned  with  the  commission.     *     *     * 

The  defendant's  counsel  also  objected  to  the  deposition  of  F.  Ru- 
dolph, so  far  as  the  same  went  to  prove  the  item  of  $250  in  the  plain- 
tiff's account;  alleging  as  the  ground  of  the  objection,  that  as  there 
was  a  written  acknowledgment  made  by  the  defendant,  the  writing 
should  be  produced,  and  the  same  could  not  be  proved  by  parol.  The 
plaintiff',  by  his  counsel,  off'ered  to  withdraw,  and  stated,  that  he  with- 
drew and  waived  that  part  of  the  deposition  which  went  to  prove  the 
existence  of  a  written  acknowledgment  of  receipt,  and  he  relied  only  on 
the  proof  of  the  actual  payment  of  the  amount  paid  by  the  witness. 
The  court  overruled  the  objection,  and  permitted  tlie  evidence  to  be 
read. 

Thompson,  J.^°  This  case  comes  up  on  a  writ  of  error  to  the  cir- 
cuit court  of  the  District  of  Columbia,  and  the  questions  for  decision 
grow  out  of  bills  of  exception  taken  by  the  defendant  at  the  trial,  and 
relate  to  the  admission  of  evidence  off'ered  on  the  part  of  the  plaintiff, 
and  objected  to  by  the  defendant.     *     *     * 

The  general  objection  to  the  testimony  taken  under  the  commis- 
sion on  account  of  the  alleged  variance  having  been  overruled,  the 
plaintiff's  counsel  read  the  deposition  of  F.  Rudolph,  which,  in  that 
part  which  went  to  prove  the  first  item  of  $250  in  the  plaintiff's  ac- 
count, states  that  the  defendant  made  the  entry  on  the  plaintiff's  rough 
cash-book,  himself;  writing  his  name  at  full  length,  at  his  request, 
not  so  much  for  the  sake  of  the  receipt,  as  in  order  for  him  to  be- 
come acquainted  with  his  signature,  and  the  way  of  spelling  his  name. 
The  witness  fully  proved  the  actual  i)ayment  of  the  money.  But  the 
defendant  objected  to  such  parol  proof,  as  written  evidence  of  the 
payment  existed  and  should  be  produced.  This  objection  we  think  not 
well  founded.  The  entry  of  the  advance  made  by  the  defendant  himself 
under  the  circumstances  stated,  cannot  be  considered  better  evi- 
dence, within  the  sense  and  meaning  of  the  rule  on  that  subject,  than 
I)roof  of  the  actual  payment,  'ihc  entry  in  the  cash-book  did  not 
change  the  nature  of  the  contract  arising  from  the  loan,  or  operate  as 
an  extinguishment  of  it,  as  a  bond  or  other  sealed  instrument  would 
have  done.  If  the  original  entry  had  been  produced,  the  handwriting 
of  the  defendant  must  have  been  proved,  a  much  more  uncertain  in- 

30  Statement  condensed  and  part  of  opinion  omitted. 


Sec.  2)  OTHER   FACTS  ^^^ 

quiry  than  the  fact  of  actual  payment.     It  cannot  be  laid  down  as  a 
universal  rule,  that  where  written  evidence  of  a  fact  exists,  all  parol 
evidence  of  the  same  fact  must  be  excluded.     Suppose  the  defendant 
had  written  a  letter  to  the  plaintiff  acknowledging  the  receipt  of  the 
money,  it  certainly  could  not  be  pretended  that  the  production  of  this 
letter  would  be  indispensable,  and  exclude  all  parol  evidence  of  the  ad- 
vance.   And  yet  it  would  be  written  evidence.    The  entry  made  by  the 
defendant  in  the  cash-book  was  not  intended,  or  understood  to  be  a 
receipt  for  the  money,  but  made  for  a  different  purpose ;    and  even  if 
a  promissory  note  had  been  given  as  written  evidence  of  the  loan,  the 
action  might  have  been  brought  for  money  lent,  and  this  proved  by 
parol.    The  note  must  have  been  produced  on  the  trial ;  not,  however, 
as  the  only  competent  evidence  of  the  loan,  but  to  be  cancelled,  so  as 
to  prevent  its  being  put  into  circulation ;    a  reason  which  does  not  in 
any  manner  apply  to  the  present  case.     This  objection  has  been  ar- 
gued at  the  bar,  as  if  the  court  permitted  the  plaintiff  to  withdraw  or 
expunge  that  part  of  the  deposition  which  related  to  the  written  ac- 
knowledgment, in  order  to  let  in  the  parol  evidence.     But  this  view 
of  it  is  not  warranted  by  the  bill  of  exceptions.     This  was  offered  to 
be  done  by  the  plaintiff's  counsel,  but  no  such  permission  was  given  by 
the  court.'    The  parol  evidence  was  deemed  admissible,  notwithstand- 
ing the  written  entry  of  the  advance.     The  parol  evidence  did  not  in 
any  manner  vary  or  contradict  the  written  entry,  and  no  objection 
could  be  made  to  it  on  that  ground.     Nor  does  the  non-production  of 
the  written  entry  afford  any  inference,  that,  if  produced,  it  would  have 
operated  to  the'prejudice  of  the  plaintiff.     Nor  can  it  in  any  manner 
injure  the  defendant.     The  production   of  the  written  entry  in  evi- 
dence would  not  protect  the  defendant  from  another  action  for  the 
same  cause,  as  seemed  to  be  supposed  on  the  argument.    The  charge 
would  not  be  cancelled  on  the  book,  but  remains  the  same  as  before 
trial;    and  the  defendant's  protection  against  another  action  depends 
on  entirely  different  grounds.     *     *     * 
.    Judgment  affirmed.^ ^ 

GILBERT  V.  DUNCAN. 
(Supreme  Court  of  New  Jersey,  ISGl.    29  X.  J.  Law,  133.) 

Whelpley,  C.  J."  The  action  in  the  court  below  was  upon  two 
promissory  notes,  made  by  Gilbert,  payable  to  David  Rowland,  and  by 
him  endorsed  to  the  plaintiffs— the  first,  dated  December  1st,  1856,  for 
$918;  the  second,  for  $1,464.28,  dated  9th  March,  1857.  They  were 
dated  at  New  York,  and  there  transferred  to  the  plaintiffs  below.    Both 

31  And  so  the  pavnicnt  of  money  may  bo  proved  without  tlie  production  of 
the  receipt.    Brannan  v.  Ih'ury,  175  Ala.  4r.4.  i37  SoutU.  ".Km   (11)112). 

32  Part  of  opinion  of  Whelpley,  C.  J.,  and  di-^seuting  opinion  of  Van  Dyke. 
J.,  omitted. 


972  THE  BEST  EVIDENCE)  (Ch.  6 

notes  were  made  by  Gilbert,   for  the  accommodation  of   Rowland: 
such  was  the  evidence  at  the  trial,  and  that  was  not  controverted. 

There  was  no  evidence  that  Duncan,  Sherman  &  Co.  knew,  at  the 
time  of  their  transfer  to  them,  that  the  notes  were  not  business  paper. 
At  the  trial,  the  defendant,  Gilbert,  set  up,  among  other  defences, 
that,  at  the  time  the  last  note  was  transferred  to  Duncan,  Sherman  & 
Co.,  they  agreed  to  give  up  to  Rowland  the  first  note.  On  this  point 
the  evidence  was  conflicting,  and  the  court  charged  the  jury  that,  if 
such  was  the  agreement,  the  plaintiffs  could  not  recover  upon  the  first 
note.  The  verdict  was  for  the  amount  of  both  notes.  For  the  purposes 
of  this  case,  we  must  assume,  such  having  been  the  finding  of  the  jury, 
that  no  such  agreement  was  made,  unless  that  finding  may  have  been 
produced  by  some  erroneous  ruling  of  the  court  bearing  upon  that  is- 
sue. 

The  evidence  on  the  part  of  Gilbert  tended  to  prove  that,  at  the  time 
the  second  note  was  transferred,  Duncan,  Sherman  &  Co.  agreed  to 
give  up  the  first  note.  The  evidence  on  the  part  of  the  plaintift's,  upon 
which  the  jury  must  have  rested  their  verdict  as  to  this  point  was, 
that  they  never  agreed  to  give  up  the  note  for  $918;  that  the  note  for 
^1,464.28  was  not  passed  to  them  to  take  up  the  note  for  $918,  but 
another  note  of  Gilbert's  passed  by  Rowland  to  them  for  $1,140.20. 
To  the  admission  of  parol  evidence  of  the  existence  and  amount  of  this 
note  the  defendant's  counsel  objected,  unless  proof  of  its  loss  or  de- 
struction was  first  made,  assigning  as  the  ground  of  the  objection,  that 
it  contravened  the  rule  excluding  parol  evidence  of  the  contents  of  writ- 
ten instruments. 

This  is  one  of  the  errors  assigned. 

The  note  was  not  an  agreement  between  the  parties.  The  plain- 
tiffs in  no  wise  rested  their  claim  upon  it;  it  was  entirely  collateral 
to  the  issue;  indeed  the  evidence  was  immaterial  to  the  issue,  in  this 
sense,  that  the  plaintiff's  proof  was  complete,  for  all  the  purposes  of  the 
case,  without  proof  of  the  existence  or  the  amount  of  the  note.  The 
defendant  had  proved  by  one  witness  an  agreement  with  the  plain- 
tiff's clerk  to  give  up  the  note  for  $918;  the  plaintiffs'  clerk  denied 
the  agreement  to  give  up  that  note ;  and  further  said,  the  note  which 
he  did  agree  to  give  up,  was  for  a  different  amount,  for  $1,140.20. 

It  is  difficult  to  lay  down  any  rule  which  will  accurately  define  in 
what  cases  it  is  not  necessary  to  produce  a  writing  as  the  best  evidence. 
There  is  much  conilict  in  the  cases  upon  this  subject,  arising  more, 
perhaps,  out  of  the  application  of  the  rule  to  differing  cases  than  as  to 
the  rule  itself.  All  the  cases  recognize  the  principle  that,  where  the 
contents  of  the  instrument  are  required,  it  must  be  produced,  or  its 
absence  excused. 

Savage,  C.  J.,  in  McFaddcn  v.  Kingsbury,  11  Wend.  (N.  Y.)  667, 
said :  "I  have  always  understood  the  rule  to  be,  that  parol  evidence 
of  the  contents  of  pajjcrs  may  be  given  when  they  do  not  form  the 
foundation  of  the  cause,  but  merely  relate  to  some  collateral  fact." 


Sec.  2)  OTHER   FACTS  97o 

The  judgment  of  Parker,  C.  J.,  in  Tucker  v.  Welsh,  17  Mass.  165,  9 
Am.  Dec.  137,  proceeds  also  on  the  ground  that  the  contents  of  a 
paper  collateral  to  the  issue  may  be  proved  by  parol. 

Mr.  Greenleaf,  also,  in  his  work  upon  Evidence,  paragraph  89, 
adopts  the  rule  as  enunciated  by  Chief  Justices  Savage  and  i'arsons, 
citing  as  authority  the  cases  just  referred  to.  The  author  of  the  note 
in  Phillips'  Ev.  Cow.  &  Bill's  Notes,  2  vol.  398,  after  an  elaborate  ex- 
amination of  these  cases,  and  others  cited  by  him  as  maintaining  the 
opposite  doctrine,  says :  "We  know  of  no  ground,  either  upon  princi- 
ple or  authority,  upon  which  the  doctrine  can  be  maintained.  Where, 
however,  the  contents  are  immaterial,  and  the  question  is  one  of  mere 
identity,  as  in  the  present  case,  no  reason  is  perceived  why  the  pro- 
duction of  the  instrument  should  be  required  before  the  witness  is 
permitted  to  allege  its  existence." 

To  enforce  such  a  rule  in  every  case  would  only  serve  to  embarrass 
the  administration  of  justice.  If  the  statement  of  plaintiffs  clerk  was 
true,  how  could  the  plaintiff  be  aware  that  the  production  of  the  note 
for  $1,140.20  would  be  of  any  avail? 

In  general,  the  principle  adopted  seems  to  be,  that  the  existence  of 
the  paper  may  be  shown  by  parol  evidence  for  many  purposes,  when 
the  existence  of  the  paper  is  not  shown  for  the  purpose  of  maintaining 
or  destroying  any  right  involved  in  the  action,  but  as  a  fact  or  cir- 
cumstance collateral  to  the  questions  at  issue.  Lamb  v.  Moberly,  3  T. 
B.  Mon.  (Ky.)  179;  Boone  v.  Dykes'  Legatees,  Ibid.  531;  United 
States  v.  Porter,  3  Day  (Conn.)  284,  Fed.  Cas.  No.  16,074. 

The  rule  of  evidence,  the  infringement  of  which  is  assigned  for  er- 
ror, is  that  requiring  the  best  evidence  to  be  given  the  nature  of  the 
case  admits.  It  is  said  the  existence  of  such  a  note  can  be  best  proved 
by  its  production.  That  may  be  the  case — it  would  so  seem.  But  the 
cases  already  cited  show  that  it  is  impossible  to  adhere  to  this  rule. 
For  instance,  a  party  proceeds,  upon  a  trial,  to  give  parol  evidence  of 
an  agreement;  the  adversary  objects  that  this  cannot  be  done,  and 
by  cross-examination  shows  that  the  agreement  was  reduced  to  writ- 
ing, that  there  was  such  an  agreement  in  writing;  it  was  never  doubt- 
ed that  this  may  be  done,  and  yet,  if  this  rule  is  of  universal  applica- 
tion this  could  be  done  only  by  the  writing  itself.  Tlie  rule  must 
therefore  have  some  limitation.  No  other  rule  can  be  adopted  in  prac- 
tice than  to  permit  the  existence  of  a  paper  to  be  proved  by  parol  as  a 
fact  in  all  cases  where  its  contents  are  not  material  to  the  rights  of  the 
parties  in  the  action,  or  the  party  proving  it  does  not  seek  to  avail  him- 
self of  its  contents  as  proof  of  any  fact  stated  in  it,  or  of  any  obliga- 
tion created  or  discharged  by  it. 

A  fact  stated  in  a  writing  may  be  proved  aliunde,  if  it  iiad  existence 
independent  of  the  paper  as  a  payment  of  money,  although  a  receipt  of 
release  has  been  given. 

I  entirely  agree  with  the  doctrine  stated  in  the  notes  to  Phillips'  Evi- 
dence, that  where  the  statements  of  a  writing  are  desired  as  evidence 


974  THE  BEST  EVIDENCE  (Cll.  6 

that  such  statements  were  made  in  writing,  the  writing,  as  the  best 
evidence,  must  be  produced,  even  if  these  statements  are  not  pertinent 
to  the  main  issue  between  the  parties.     - 
The  evidence  was  properly  received  by  the  judge."     *     *     * 


TAYLOR  V.  PECK. 

(Court  of  Appeals  of  \'irginia.  1S71.    21  Grat.  11.) 

MoNCURE,  P.^*  *  *  *  'pj^g  question  presented  by  this  assignment 
of  error  arises  on  the  4th  bill  of  exceptions ;  from  which  it  appears, 
that  on  the  trial  of  the  cause,  the  plaintiff  proved  herself  to  be  the 
owner  in  fee  of  the  lands  in  question,  and  that  defendant  was  in 
possession  on  the  5th  day  of  November,  1869,  the  date  of  the  writ, 
and  was  still  in  possession  at  the  time  of  the  trial,  and  the  plain- 
tiff lived  two  miles  from  the  main  dwelling  which  was  occupied  by 
the  defendant  on  said  premises ;  and  closed  her  evidence.  The  de- 
fendant, to  sustain  the  issue  on  his  part,  then  introduced  two  re- 
ceipts signed  by  the  plaintiff  in  the  words  and  figures  following,  to 
wit : 

"Received  of  C.  L.  Peck,  three  hundred  dollars,  amount  in  full  for 
the  rent  of  my  property  for  the  year  1868.  M.  B.  Taylor." 

[U.  S.  revenue  stamp,  2  cents;   cancelled.] 

"Received  of  C.  h.  Peck,  January  1,  1870,  three  hundred  dollars 
in  full,  for  the  rent  of  my  property  for  the  year  1869,  according  to 
contract.  M.  B.  Taylor." 

[U.  S.  revenue  stamp,  2  cents;   cancelled.] 

And  proved  that  the  sum  of  money  mentioned  in  the  receipt  which 
is  not  dated,  was  paid  partly  in  1868,  and  the  balance  in  September, 
1869;  that  the  payment  in  September,  1869,  was  not  made  by  the  de- 
fendant in  person,  but  by  an  agent,  and  that  the  receipt  was  given 
on  the  1st  day  of  January,  1870.  And  he  further  proved  that  the  sum 
of  money  mentioned  in  the  receipt  bearing  date  January  1st,  1870,  was 
actually  paid  on  the  said  1st  day  of  January,  1870,  and  was  for  the 
use  and  occupation  of  said  premises  for  the  year  1869;  and  he  fur- 
ther proved  that  he  had  been  in  possession  of  said  land  since  the  1st 
of  January,  1868.  And  thereupon  the  defendant  announced  that  he 
was  through  with  his  evidence.     *     *     * 

The  defendant's  evidence  was  excluded  by  the  County  Court  upon 
the  ground  that  parol  evidence  is  inadmissible  to  prove  the  contents 

3  3  The  same  rule  has  been  applied  in  an  action  to  recover  the  price  to  be 
paid  for  a  note  sold  to  defendant,  Lninh  v.  Mobcrly,  ?,  T.  li.  ISfnn.  (Ky.)  17J» 
(1S20) ;  and  in  an  action  to  recover  the  amount  agreed  to  be  paid  for  the 
I)laintif['.s  signature  to  an  instrument,  Shoenberger's  Ex'rs  v.  Ilacknian,  37 
I'a.  87  (1800;. 

8<  Statement  of  facts  and  part  oC  opinion  omitted. 


Sec.  2)  OTHER  FACTS 


i(.) 


of  a  written  contract,  unless  the  non-production  of  such  contract  is 
first  duly  accounted  for;  and  that  to  admit  the  said  evidence  of  the 
defendant  in  this  case,  would  be  to  violate  that  rule. 

There  is  no  doubt  about  the  existence  of  the  rule  or  its  wisdom. 
The  only  question  is,  does  this  case  fail  within  it?  Or  does  not  this 
case  come  within  some  exception  to  the  rule? 

First.  We  think  this  case  does  not  fall  within  the  rule.  In  other 
words,  that  the  rule  does  not  apply  to  it.  The  evidence  was  not  of- 
fered, and  does  not  tend,  to  prove  the  contents  of  a  written  contract. 
It  was  offered,  and  tends  only,  to  prove  that  at  the  time  of  the  insti- 
tution of  the  action,  the  defendant  occupied  the  land  in  controversy  as 
the  plaintiff's  tenant.  The  terms  of  the  tenancy,  or  of  the  lease 
under  which  the  defendant  then  held  the  premises,  was  perfectly  im- 
material. If  he  held  them  at  that  time  as  tenant,  no  matter  on  what 
terms  and  conditions,  he  held  them  lawfully,  and  the  plaintiff  had  no 
right  to  recover  in  the  action.  That  he  held  them  as  tenant  of  the 
plaintiff,  and  not  adversely,  was  a  fact  which  could  be  proved  by  parol 
evidence,  and  need  not  of  necessity  be  proved  by  the  production  of 
the  lease,  though  there  may  have  been  no  reason  for  its  non-produc- 
tion. It  is  well  settled  in  England  that  the  existence  of  a  tenancy 
between  the  parties  may  be  shown  by  parol,  though  the  demise  be  in 
writing.  Rex  v.  Holy  Trinity,  Kingston  upon  Hull,  7  Barn.  &  Cres. 
611,  14  Eng.  C.  L.  R.  101.  If  the  fact  of  the  occupation  of  land  is 
alone  in  issue,  without  respect  to  the  terms  of  the  tenancy,  this  fact 
may  be  proved  by  any  competent  oral  testimony,  such  as  payment  of 
rent,  or  declarations  of  the  tenant,  notwithstanding  it  appears  that 
the  occupancy  was  under  an  agreement  in  writing ;  for  here  the  writ- 
ing is  only  collateral  to  the  fact  in  question.  Thus  the  law  is  laid  down 
by  Professor  Greenleaf ,  1  Greenl.  on  Ev.  §  87 ;  and  he  cites  the  fol- 
lowing cases  to  sustain  him :  Rex  v.  Holy  Trinity,  &c.,  supra ;  Doe  v. 
Harvey,  8  Bing.  239,  241 ;  Spiers  v.  Willison,  4  Cranch,  398,  2  L. 
Ed.  659;  Dennett  v.  Crocker,  8  Greenl.  (IMe.)  239,  244.  The  case  of 
Rex  V.  The  Holy  Trinity,  «S:c.,  which  was  decided  by  the  whole  court 
of  King's  Bench  in  1827,  was  questioned  in  the  case  of  Strother,  &c., 
V.  Barr,  &c.,  decided  by  the  common  pleas  in  1828;  5  Bing:  R.  136,  15 
Eng.  C.  L.  R.  391 ;  and  the  opinion  of  Best,  C.  J.,  in  that  case,  was 
much  relied  upon  in  the  argument  of  the  counsel  for  the  plaintiff  in 
this  case.  But  in  that  case  there  was  an  equal  division  of  the  court, 
and  the  decision  was  against  the  opinion  of  the  Chief  Justice.  He  was 
the  only  judge  in  the  case  who  questioned  the  correctness  of  the  deci- 
sion of  Rex  v.  The  Holy  Trinity,  &c.,  while  two  of  the  three  other 
judges  strongly  relied  upon  it  as  a  binding  authority. 

Secondly.  But  even  if  the  rule  in  question  were  applicable  to  such  a 
case  as  this,  it  comes  within  the  exception  to  the  rule  which  was  de- 
clared in  the  case  of  Slattcrie  v.  Pooley,  6  Mees.  &  Welsh.  R.  664, 
decided  bv  the  Court  of  Exchequer  in  1840,  and  cited  by  the  Attorney- 


976  THE  BEST  EVIDENCE  (Ch.  6 

General  in  this  case.  That  exception  is,  that  "a  parol  admission  by  a 
party  to  a  suit  is  always  receivable  in  evidence  against  him,  although  it 
relate  to  the  contents  of  a  deed  or  other  written  instrument ;  and  even 
though  its  contents  be  directly  in  issue  in  the  cause."     *     *     * 

The  case  of  Slatterie  v.  Pooley  has  since  been  confirmed  by  a  unan- 
imous decision  of  the  Court  of  Common  Pleas  in  the  case  of  Howard 
V.  Smith,  3  Man.  &  Gran.  254,  42  Eng.  C.  L.  R.  139,  decided  in 
1841,  and  also  cited  by  the  Attorney-General. 

According  to  these  cases,  which  we  think  correctly  expound  the 
law,  the  receipts  of  the  plaintiff  for  rent  for  the  years  1868  and  1869, 
which  were  excluded  as  aforesaid,  were  clearly  admissible. 

And  we  think  that  all  the  evidence  of  the  defendant  which  was 
excluded  by  the  County  Court  was  admissible  evidence,  and  ought 
not  to  have  been  so  excluded.     *     *     * 


Judgment  reversed, 


35 


HATCH  V.  FOWLER  et  al. 
(Supreme  Court  of  Michigan,  1S73.     28  Mich.  205.) 

CooLEY,  J.^^  Fowler  and  Kelsey  replevied  from  Hatch  a  quantity 
of  lumber  which  he,  as  sheriff  of  Lapeer  county,  had  levied  upon  by 
virtue  of  a  writ  of  attachment  against  one  Doyle.  The  levy  was 
made  at  Imlay  City,  but  the  lumber  was  not  removed,  nor  was  any  one 
left  by  the  sheriff'  in  charge  of  it.  The  sheriff  duly  endorsed  the  levy 
on  his  writ,  and  claimed  afterwards  to  hold  the  property  by  virtue  of 
it,  and  refused  to  give  it  up  on  demand  by  plaintiff's  agent.  It  was  con- 
ceded that  the  lumber  belonged  originally  to  Doyle,  and  had  been  man- 
ufactured by  him  at  Burlington,  some  eighteen  miles  from  tlie  place 
where  the  attachment  was  served.  Plaintiff's  claimed  to  have  bought 
the  lumber  of  Doyle,  and  the  defense  was  that  if  any  such  purchase 
was  ever  negotiated  it  had  never  been  perfected,  so  as  to  pass  the  title, 
and  even  if  it  had  been,  so  as  to  be  valid  and  complete  as  between  the 
parties,  it  was  presumptively  fraudulent  as  to  the  creditors  of  Doyle, 
and  therefore  prima  facie  void  as  against  the  writ  in  the  hands  of 
Hatch  as  sheriff". 

To  prove  their  title,  Fowler,  one  of  the  plaintiffs,  took  the  stand  as 
a  witness,  and  testified  that  in  August,  1870,  he  was  acquainted  with 
Doyle,  and  went  from  Bay  City  with  Kelsey  to  see  him  on  the  16th 
of  that  month.  Doyle  had  some  lumber  sawed,  and  a  stock  of  logs 
in  his  mill  to  saw  at  that  time.  Plaintiffs  made  with  him  a  written  con- 
as  And  so  in  Minnesota  Debenture  Co.  v.  Johnson,  06  Minn.  Dl,  104  N.  W. 
1141),  107  N.  W.  740  (1006),  testimony  by  tlie  deieudaut  that  he  held  as  tenant 
of  X. 

36  Part  of  opinion  omitted. 


Sec.  2)  OTDER   FACTS  977 

tract  for  the  purchase  of  a  certain  amount  of  lumber.  The  written 
contract  was  then  produced  and  identified,  but  it  being  attested  by  a 
subscribing  witness  who  was  not  produced,  it  was  not  received  in  evi- 
dence. Fowler  then  proceeded  to  say  that  plaintifTs  paid  Doyle  five 
hundred  dollars  at  that  time.  He  was  then  asked  whether  they  subse- 
quently made  any  payment  to  Doyle  on  the  lumber.  The  question  was 
objected  to,  but  allowed,  and  subject  to  objection  the  witness  pro- 
ceeded to  say  that  afterwards  in  September,  they  paid  upon  the  con- 
tract five  hundred  dollars  more,  and  in  December  seven  hundred  and 
seventy-five  dollars  more.     *     *     * 

The  first  question  we  shall  consider  is,  whether  plaintififs  were  at 
liberty  to  make  oral  proof  of  the  purchase  they  claimed  to  have  made, 
when  it  was  conceded  that  the  contract  was  in  writing.  The  plain- 
tiffs, in  the  discussion  of  this  question,  have  mad?  the  following 
points: 

First.  That  the  action  is  purely  a  possessory  action. 

Second.  That  as  the  plaintiffs  claim  title  from  Doyle,  the  spe- 
cific terms  whereby  they  acquire  title  are  material  only  to  the  parties 
to  the  contract,  to  wit :    Doyle,  Fowler  and  Kelsey. 

Third.  That  Hatch  is  a  stranger  to  the  contract,  and  has  no  right 
to  inquire  into  its  terms,  except  so  far  as  they  affect  the  rights  of 
creditors  whom  he  represents. 

Fourth.  That  until  Hatch  had  entered  upon  his  defense,  and  shown 
that  he  represented  creditors,  proof  of  a  sale  which  could  only  be 
avoided  by  creditors  would  be  immaterial  and  collateral  to  the  then 
issue. 

The  third  of  these  positions  we  have  no  occasion  to  discuss ;  the 
other  three  appear  to  us  to  assume  all  that  is  in  dispute  between  the 
parties. 

It  is  very  true  that  replevin  is  a  possessory  action ;  and  as  a  gen- 
eral rule  a  party  in  the  actual  and  undisputed  possession  of  property 
cannot  be  required,  as  against  a  mere  intruder,  to  show  how  he  came 
possessed  of  the  title,  or  even  that  he  has  any  title  at  all.  But  in  this 
case  the  plaintiffs  did  not  plant  themselves  upon  their  possession,  and, 
from  the  very  equivocal  nature  of  their  possession,  it  is  not  very  clear 
that  they  could  have  done  so  with  safety,  even  as  against  a  stranger. 
They  began  their  case  by  showing  title  to  the  lumber  in  Doyle,  and 
endeavoring  to  show  that  they  had  acquired  that  title  by  purchase. 
They  endeavored  to  prove  title,  instead  of  possession ;  and  though, 
as  an  important  step  in  establishing  title,  they  gave  evidence  to  show 
possession  had  been  taken  by  them,  this  was  incidental  only  to  the 
main  fact  sought  to  be  made  out,  and  not  the  main  fact  itself. 

Starting  thus,  with  the  title  in  Doyle,  how  were  the  plaintiffs  to  de- 
duce it  to  themselves?    Clearly  by  showing  their  purchase.     But  how 

HiNT.Ev.— 62 


978  THE  BEST  EVIDENCE  (Ch.  6 

were  they  to  show  their  purchase  except  by  proving  the  terms  of  the 
agreement,  and  a  comphance  therewith  on  their  own  part?  This  very 
case  illustrates,  in  a  very  striking  manner,  the  importance  of  the  rule 
which  requires  the  written  contract  to  be  produced  in  evidence. 
The  plaintiffs  insist  upon  a  completed  sale  to  themselves.  How  much 
did  they  buy?  What  were  the  conditions,  if  any,  to  be  performed 
before  title  was  to  pass?  What  was  the  understanding  by  the  con- 
tract regarding  prices,  inspection  and  delivery?  Not  one  of  these 
questions  is  satisfactorily  answered  by  the  parol  evidence  which  was 
received,  and  different  inferences  are  admissible.  Some  of  the  un- 
disputed facts,  though  not  absolutely  inconsistent  with  a  completed 
sale,  are  facts  which  are  always  held  to  require  satisfactory  explana- 
tion, in  the  absence  of  which  the  law  presumes  the  title  was  not  to 
pass.  Such  are  the  facts  that  the  sum  to  be  paid  was  not  determined, 
and  the  inspection  necessary  for  that  purpose  had  not  been  had.  If  it 
were  the  clear  intent  of  the  parties  that  the  title  should  pass  notwith- 
standing, it  might  doubtless  pass ;  but  that  intent  is  to  be  ascertained 
from  their  contract,  and  not  from  what  they  may  say  of  it  afterwards 
in  a  controversy  with  third  parties.  Nor  can  it  be  said  that  a  third 
party  proceeded  against  as  a  trespasser  has  no  interest  in  knowing 
whether  the  conditions  of  the  sale  have  been  complied  with.  He  has  a 
vital  interest  in  knowing  whether  the  party  who  prosecutes  him  has 
a  right  to  prosecute ;  for  even  though  such  party  recover  judgment,  if 
he  have  no  right  in  fact,  his  recovery  will  be  no  bar  to  a  subsequent 
suit  by  the  real  party  entitled. 

Presumptively,  on  the  plaintiff's  own  showing  in  this  case,  the  title 
had  not  passed  from  Doyle.  The  mere  delivery  of  a  symbolical  pos- 
session would  not  be  conclusive.  That  of  itself  would  not  be  so  sig- 
nificant in  its  bearing  upon  the  question  whether  the  sale  was  com- 
pleted, as  the  fact  that  the  quantity  and  amount  to  be  paid  were  not 
determined.  This  subject  was  so  fully  discussed  in  Lin'gham  v.  Eg- 
gleston,  27  Mich.  324,  that  we  may  content  ourselves  with  a  refer- 
ence to  that  case,  only  remarking  that  parties  who  claim  the  title 
in  opposition  to  such  significant  circumstances  cannot  complain  that 
secondary  evidence  is  objected  to  when  that  of  the  highest  nature 
alone  could  give  satisfactory  explanation  if  any  is  possible. 

This  case  has  no  analogy  to  Rayner  v.  Lee,  20  Mich.  384,  and  the 
other  cases  referred  to  by  counsel.  In  the  case  named,  a  party  was 
allowed  to  prove  an  occupation  of  land  by  one  person  under  another 
without  producing  the  lease ;  but  there  the  fact  of  tenancy  was  all 
that  was  sought  to  be  proved,  and  the  terms  of  the  lease,  or  whether 
any  written  lease  existed,  was  unimportant.  The  other  cases  cited 
in  the  same  connection  are  similar.  But  here  the  terms  of  the  con- 
tract are  of  vital  importance,  because  a  compliance  with  them,  or 
something  accepted  as  equivalent,  is  essential  to  establish  the  title. 
And    we    cannot   say   that    any   thing   has    been    accepted    for    some 


Sec.  2)  OTHER  FACTS  979 

thing  else,  or  any  thing  waived,  until  we  know  what  there  was  in 
the  contract  in  respect  to  which  there  might  be  substitution  or  waiv- 
er.    *     *     * 

Judgment  reversed.^^ 


PACIFIC  EXPRESS  CO.  v.  DUNN. 
(Supreme  Court  of  Texas,  1S91.     81  Tex.  85,  IG  S.  W.  792.) 

Stayton,  C.  J.  Appellee  brought  this  action  to  recover  damages 
for  the  destruction  of  a  house  and  property  therein  by  fire,  which  he 
alleges  resulted  from  the  negligence  of  an  employe  of  appellant  while 
engaged  in  the  course  of  his  employment  in  its  business.  In  the  course 
of  the  trial,  appellee  was  permitted  to  prove  his  ownership  of  the  house 
by  his  own  testimony,  and  it  is  urged  that  such  evidence  was  not  ad- 
missible for  that  purpose.  This  evidence  was  to  the  effect  that  he 
owned  the  house  and  lot  on  which  it  stood,  and  was  in  possession  of  it 
at  the  time  and  before  it  was  destroyed ;  that  he  built  the  house  some 
four  years  before  it  was  burned,  on  another  lot,  from  which  he  remov- 
ed it  to  the  lot  on  which  it  stood,  about  three  years  before  it  was  de- 
stroyed; that  two  rooms  in  the  house  were  occupied  by  his  tenants, 
two  vacant,  and  another  occupied  by  himself  as  an  office. 

It  was  contended  that  appellee  could  not  thus  show  his  ownership, 
and  that  it  was  incumbent  on  him  to  show  title  by  written  muniment ; 
or  to  show  that  he  held  the  exclusive  possession.  The  possession 
shown  was  certainly  exclusive,  within  the  meaning  of  the  law,  for 
the  possession  of  his  tenants  was  his  possession,  and  no  part  of  the 
premises  was  occupied  by  any  person  other  than  himself  and  his 
tenants.  We  do  not  understand  that,  in  actions  of  this  character,  it  is 
incumbent  on  a  plaintiff  to  deraig-n  title  through  writings  from  the 
sovereignty  of  the  soil,  or  in  some  of  the  other  methods  in  which  title 
is  acquired,  but  understand  that  an  exclusive  and  peaceable  possession 
of  land  furnishes  prima  facie  evidence  of  ownership,  which,  if  not 
rebutted,  is  sufficient  to  maintain  such  an  action  as  this,  or  even  eject- 
ment or  trespass  to  try  title  against  a  trespasser  or  mere  intruder. 
Linard  v.  Crossland,  10  Tex.  462,  60  Am.  Dec.  213;  Lea  v.  Hernan- 
dez, 10  Tex.  137;  Wilson  v.  Palmer,  18  Tex.  595;  Yates  v.  Yates, 
76  N.  C.  142;  Smith  v.  Lorillard,  10  Johns.  (N.  Y.)  339;  Bledsoe  v. 
~Simms,  53  Mo.  305;  Keith  v.  Keith,  104  111.  397;  Barger  v.  Hobbs. 
67  111.  592;   Sedg.  &  W.  Tr.  Title  Land,  717,  and  cases  cited. 

The  question  which  brought  out  the  evidence  as  to  possession  may 
have  been  leading,  and  the  broad  assertion  of  ownership  may  have 
been  but  the  assertion  of  an  opinion,  but  these  matters  furnish  no  rea- 

3  7  Compare  Johnson  v.  Carlin,  121  Minn.  170.  141  X.  W.  4,  Ann.  Cas.  ini4C. 
705  (1913),  to  the  effect  that,  in  an  action  ntrainst  a  tenant  whose  lease  nu«ht 
be  terminatecMn  case  of  a  sale  of  the  premises,  the  fact  of  a  sale  uiiglit  he 
proved  without  producing  the  contract  of  sale. 


980  THE  BEST  EVIDENCE  (Ch.  6 

son  for  reversal,  in  view  of  the  evidence  of  right  furnished  by  the 
possession  proved.  There  is  no  other  question  in  the  case,  and  the 
judgment  must  be  affirmed. ^^  / 


SECTION  3.— DEGREES  OF  SECONDARY  EVIDENCE 


HILTS  V.  CALVIN. 
(Supreme  Court  of  New  York,  1S17.    14  Johns.  182.) 

Spencer,  J.,^®  delivered  the  opinion  of  the  court.  The  plaintiff  be- 
low offered  one  John  G.  Hilts  as  a  witness.  He  was  objected  to  on 
the  ground  of  his  incompetency,  arising  from  his  alleged  conviction  of 
the  crime  of  grand  larceny. 

It  was  proved  that  there  were  no  papers  or  records  in  the  clerk's 
office  of  Herkimer,  prior  to  IMay,  1804,  and  that  in  April,  of  that  year, 
the  clerk's  office  had  been  burnt  down,  and  most  or  all  of  the  papers 
had  been  consumed.  It  was  offered  to  be  proved  that  the  witness, 
Hilts,  had  been  convicted,  previous  to  1804,  for  harbouring  stolen 
goods,  and  sentenced  to  tlie  state  prison :  which  proof  was  objected 
to,  but  admitted  by  the  court,  and  made  out  by  parol ;  and  the  witness 
being  excluded,  the  plaintiff  was  nonsuited  for  want  of  proof  to  sus- 
tain his  action. 

It  is  insisted,  that  there  was  higher  and  better  proof  of  Hilts'  con- 
viction, and  that  he  ought  not  to  have  been  excluded:  1.  The  copy 
of  the  sentence  required  to  be  given  by  the  clerk  of  the  court  to  the 
sheriff,  who  is  required  to  deliver  the  same  to  the  keeper  of  the  state 
prison,  with  the  prisoner.    1  R.  L.  415.    K.  &  R.  sess.  24,  ch.  121,  s.  5. 

2.  The  certificate  required  by  the  second  section  of  the  act  relative 
to  district  attorneys  to  be  sent  to  the  court  of  exchequer,  there  to  re- 
main of  record,  containing  the  tenor  and  effect  of  every  conviction,  the 
name  of  the  person  and  addition,  the  offence,  the  day  and  place  of  the 
conviction,  and  before  whom  it  was  had,  and  the  judgment  given  there- 
on ;  a  copy  of  which,  under  the  hand  of  the  clerk  and  the  seal  of  the 
exchequer,  is  declared  to  be  good  evidence  of  such  fofmer  conviction. 
1  R.  L.  462.    K.  &  R.  sess.  24,  ch.  146,  s.  2. 

Whatever  may  be  thought  of  the  first  objection,  the  second  is  de-, 
cisive.  It  is  always  to  be  presumed  that  a  public  officer  has  done  his 
duty,  and  this  presumption  stands  until  it  is  disproved.  We  must 
then  intend  that  there  was,  in  tlie  court  of  exchequer,  the  transcript 
pointed  out  by  the  statute ;  and  it  follows  that  there  was  higher  proof 
in  the  power  of  the  party  than  that  given  at  the  trial  below.    This  court, 

3  8  See  same  rule  in  Mathews  v.  Liviuyston,  86  Conu.  2G3,  85  Atl.  529,  Ann. 
Cas.  1()14A,  195  (1912). 
8"  Statement  omitted. 


Sec.  3)  DEGREES   OF   SECONDARY    EVIDENCE  981 

in  the  case  of  the  People  v.  Herrick,  13  Johns.  82,  7  Am.  Dec.  364,  de- 
cided, that  a  party  who  would  take  exception  to  a  witness  on  the  ground 
of  his  conviction  of  tlie  crimen  falsi,  must  have  a  copy  of  the  record  of 
conviction  ready  to  produce  in  court.  The  judgment  below  must  be 
reversed. 

Judgment  reversed. 


WINN  et  al.  v.  PATTERSON. 
(Supreme  Court  of  the  United  States,  1S.35.     9  Pet.  663,  9  L.  Ed.  266.) 

Story,  J.*"  This  is  a  writ  of  error  to  the  circuit  court  of  the  dis- 
trict of  Georgia.  The  cause,  which  is  an  ejectment,  has  been  twice  be- 
fore this  court,  and  the  decisions  then  had,  will  be  found  reported  in 
11  Wheat.  3S0,  6  L.  Ed.  500,  and  5  Pet.  233,  8  L.  Ed.  108,  to  which 
we  may  therefore  refer,  as  containing  a  statement  of  many  of  the  ma- 
terial facts. 

At  the  new  trial  had  in  November  term,  1833,  in  pursuance  of  the 
mandate  of  this  court,  the  plaintiff,  to  maintain  the  issue  on  his  part, 
gave  in  evidence  a  copy  of  a  grant  from  the  State  of  Georgia  to  Basil 
Jones,  for  7,300  acres,  including  the  lands  in  controversy,  dated  the 
24th  of  May,  1787,  with  a  plat  of  survey  thereto  annexed.  He  then 
offered  a  copy  of  a  power  of  attorney  from  Basil  Jones  to  Thomas 
Smyth,  Jr.,  purporting  to  be  dated  the  6th  of  August,  1793,  and  to 
authorize  Smyth,  among  other  things,  to  sell  and  convey  the  tract  of 
7,300  acres,  so  granted,  which  power  purported  to  be  signed  and  sealed 
in  the  presence  of  "Abram  Jones,  J.  P.,  and  Thomas  Harwood,  Jr. ;" 
and  the  copy  was  certified  to  be  a  true  copy  from  the  records  of  Rich- 
mond county,  Georgia,  and  recorded  therein,  on  the  11th  day  of  July, 
1795.  And  to  account  for  the  loss  of  the  original  power  of  attorney, 
of  which  the  copy  was  offered,  and  of  the  use  of  due  diligence  and 
search  to  find  the  same,  tlie  plaintiff  read  the  affidavit  of  William  Pat- 
terson, tlie  lessor  of  the  plaintiff,  which  in  substance  stated  that  he  had 
not  in  his  possession,  power,  or  custody,  the  original  grant,  and  that 
he  verily  believed  the  original  power  of  attorney  and  grant  have  been 
lost  or  destroyed.     *     *     * 

The  remaining  question  then,  is,  whether  the  copy  now  produced 
was  proper  secondary  proof,  entitled  by  law  to  be  admitted  in  evidence. 
The  argument  is,  that  it  is  a  copy  of  a  copy,  and  so  not  admissible; 
and  that  the  original  record  might  have  been  produced  in  evidence. 
By  the  laws  of  Georgia,  act  of  1785,  deeds  of  bargain  and  sale  of  lands 
are  required  to  be  recorded  in  the  county  where  the  lands  lie ;  Prince's 
Dig.  112.  Powers  of  attorney  to  convey  lands,  are  not  required  by 
law  to  be  recorded  in  the  same  county,  though  tliere  seems  to  be  a 

*o  Part  of  opinion  omitted. 


982  THE  BEST  EVIDENCE  (Ch.  G 

common  practice  so  to  do.  The  act  of  1785  provides  that  all  bonds, 
specialties,  letters  of  attorney,  and  powers  in  writing,  the  execution 
whereof  shall  be  proved  by  one  or  more  of  the  witnesses  thereto,  be- 
fore certain  magistrates  of  either  of  the  United  States,  where  the  same 
were  executed,  and  duly  certified  in  the  manner  stated  in  the  act,  shall 
be  sufficient  evidence  to  the  court  and  jury  of  the  due  execution  there- 
of; Prince's  Dig.  113.  The  present  power  was  not  recorded  in  the 
county  of  Franklin,  where  the  lands  lie,  but  in  Richmond  county;  and, 
therefore,  a  copy  from  the  record  is  not  strictly  admissible  in  evidence, 
as  it  would  have  been  if  powers  of  attorney  were  by  law  to  be  recorded 
in  the  county  where  the  lands  lie,  and  the  present  power  had  been  so 
duly  recorded.  It  is  certainly  a  common  practice  to  produce,  in  the 
custody  of  the  clerk,  under  a  subpoena  duces  tecum,  the  original  rec- 
ords of  deeds  duly  recorded.  But  in  point  of  law  a  copy  from  such 
record  is  admissible  in  evidence,  upon  the  ground  stated  in  Lynch 
V.  Clark,  3  Salk.  154;  that  where  an  original  document  of  a  public 
nature  would  be  evidence  if  produced,  an  immediate  sworn  copy  there- 
of is  admissible  in  evidence;  for  as  all  persons  have  a  right  to  the 
evidence  which  documents  of  a  public  nature  afford,  they  might  other- 
wise be  required  to  be  exhibited  at  different  places  at  the  same  time. 
See  Mr.  Leach's  note  to  11  Mod.  Rep.  134;  Birt  v.  Barlow,  1  Doug. 
171 ;  1  Starkie  on  Evidence,  §§  36,  Z7 .  If,  therefore,  the  record  itself 
would  be  evidence  of  a  recorded  deed,  a  duly  attested  copy  thereof 
would  also  be  evidence.  The  present  copy  does  not,  however,  (as  is 
admitted,)  fall  within  the  reach  of  this  rule.  But  the  question  does 
arise,  whether  the  defendant  can  insist  upon  the  production  of  the  rec- 
ord books  of  the  county  of  Richmond,  in  court,  in  this  case ;  as  higher 
and  more  authentic  evidence  of  the  power  of  attorney  not  properly  re- 
corded there,  to  the  exclusion  of  any  other  copy  duly  established  in 
proof.  We  think  he  cannot.  It  is  not  required  by  any  rule  of  evidence 
with  which  we  are  acquainted. 

We  admit  that  the  rule,  that  a  copy  of  a  copy  is  not  admissible  evi- 
dence, is  correct  in  itself,  when  properly  understood  and  limited  to 
its  true  sense.  The  rule  properly  applies  to  cases  where  the  copy 
is  taken  from  a  copy,  the  original  being  still  in  existence  and  capable 
of  being  compared  with  it;  for  then  it  is  a  second  remove  from 
the  original ;  or  where  it  is  a  copy  of  a  copy  of  a  record,  the  record 
being  in  existence  by  law  deemed  as  high  evidence  as  the  original ; 
for  then  it  is  also  a  second  remove  from  the  record.  But  it  is  quite 
a  different  question  whether  it  applies  to  cases  of  secondary  evidence 
where  the  original  is  lost,  or  the  record  of  it  is  not  in  law  deemed  as 
high  evidence  as  the  original;  or,  where  the  copy  of  a  copy  is  the 
highest  proof  in  existence.  On  these  points  we  give  no  opinion,  be- 
cause this  is  not,  in  our  judgment,  the  case  of  a  mere  copy  of  a  copy 
verified  as  such;  but  it  is  the  case  of  a  second  copy  verified  as  a  true 
copy  of  the  original.     Mr.  Robertson  expressly  asserts  that  the  record 


Sec.  3)  DEGREES  OF  SECONDARY  EVIDENCE  983 

was  a  copy  of  the  original  power  made  by  himself,  and  that  the  pres- 
ent copy  is  a  trae  copy  which  has  been  compared  by  himself  with  th'* 
record.  In  effect,  therefore,  he  swears  that  both  are  true  copies  of  the 
original  power.  In  point  of  evidence,  then,  the  case  stands  precisely 
in  the  same  predicament  as  if  the  witness  had  made  two  copies  at  the 
same  time  of  the  original,  and  had  then  compared  one  of  them  with  the 
original,  and  the  other  with  the  first  copy,  which  he  had  found  cor- 
rect. The  mode  by  which  he  had  arrived  at  the  result,  that  tlie  second 
is  a  true  copy  of  the  original,  may  be  more  circuitous  than  that  by 
which  he  has  ascertained  the  first  to  be  correct ;  but  that  only  furnish- 
es matter  of  observation  as  to  the  strength  of  the  proof,  and  not. as 
to  its  dignity  or  degree.  In  each  case  his  testimony  amounts  to  the 
same  result,  as  a  matter  of  personal  knowledge,  that  each  is  a  true 
copy  of  the  original.  We  are,  therefore,  of  opinion,  that  there  was  no 
error  in  the  court  in  admitting  the  copy  in  evidence  under  these  cir- 
cumstances. *  *  * 
Judgment  affirmed. 


HARVEY  et  ux.  v.  THORPE. 

(Supreme  Court  of  Alabama,  1S56.     28  Ala.  250,  65  Am.  Dec.  344.) 

This  was  an  action  to  recover  a  tract  of  land.  A  deed  material  to 
the  defense  had  been  lost.  Defendant  was  permitted  to  introduce  parol 
evidence  to  the  effect  that  a  mistake  had  been  made  in  recording  the 
deed  so  that  the  number  of  feet  appearing  in  the  deed  register  differ- 
ed from  the  original.*^ 

GoLDTiiWAiTE,  C.  J.  *  *  *  As  to  the  principal  question  in  the 
case — tlie  admission  of  parol  evidence  to  contradict  the  transcript  of 
the  deed  certified  by  the  clerk :  The  English  cases  certainly  lay  down 
the  rule  very  broadly,  that  there  are  no  degrees  in  secondary  evidence 
(Rowlandson  v.  Wainright,  1  Nev.  &  Per.  8;  Coyle  v.  Cole,  6  Car. 
&  P.  81 ;  Rex  v.  Hunt,  3  B.  &  Aid.  506;  Brown  v.  Woodman,  6  Car. 
&  P.  206) ;  while,  on  the  contrary,  the  current  of  American  authorities 
goes  very  strongly  to  show  that,  although  the  facts  may  warrant  tne 
admission  of  secondary  evidence,  the  best  kind  of  that  character  of 
evidence  which  appears  to  be  in  the  power  of  the  party  to  produce, 
must  be  offered.  United  States  v.  Britton,  2  Mason,  464  [Fed.  Cas. 
No.  14,650]  ;  Kello  v.  Maget,  18  N.  C.  414;  Renner  v.  Bank  of  Co- 
lumbia, 9  Wheat.  582-597  [6  L.  Ed.  166]  ;  Popino  v.  McAllister,  7 
N.  J.  Law,  46-53;  Blade  v.  Noland,  12  Wend.  173  [27  Am.  Dec. 
126] .  We  confess  that  the  American  rule  appears  to  us  more  rea- 
sonable than  the  English;    and  we  see  great  propriety,  if  there  was 

*i  The  statement  has  been  condensed  and  part  of  opinion  omitted. 


984  THE  BEST  EVIDENCE  (Cll.  6 

an  examined  copy  of  an  instrument  in  the  possession  of  a  party,  in 
refusing  to  allow  him  to  prove  it  by  the  uncertain  memory  of  wit- 
nesses. A  copy  of  a  letter,  taken  by  a  copying  press,  would  unques- 
tionably be  better  evidence  of  the  original  that  the  recollection  of  its 
contents  by  a  witness;  and  the  same  reasons  which  would  require 
the  production  of  the  original,  if  in  the  control  of  the  party,  would 
operate  in  favor  of  the  production  of  tlie  fac-simile,  or  of  the  exam- 
ined copy.  But,  in  all  these  cases,  the  strength  of  the  proposition  con- 
sists in  the  fact,  that  there  is  secondary  evidence,  in  its  nature  and  char- 
acter better  than  that  which  the  party  offers,  and  that  it  is  in  his  power 
to* produce  it.  He  certainly  must  be  allowed  to  show,  that  what  appears 
to  be  secondary  evidence  of  a  higher  degree  is  not  so  in  fact.  In  other 
words,  he  would  be  allowed  to  show  that  the  paper,  which  purported' 
to  be  a  copy,  was  not  in  fact  and  in  truth  one. 

To  apply  these  principles  to  the  case  under  consideration,  the  ques- 
tion is,  whether  the  defendants  below  were  concluded  by  tlie  record  of 
the  conveyance  in  the  office  of  the  clerk  of  the  county  court.  We 
should  think  it  very  unreasonable,  that  because  the  law  authorized  the 
conveyance  to  be  recorded,  that  record  should,  in  case  of  the  loss  or 
destruction  of  the  original,  be  conclusive  even  on  the  parties  to  the 
deed.  It  would  be  more  unreasonable  still  to  give  this  effect  to  it 
against  a  stranger.  That  the  legislature  has  the  power  to  do  so,  is 
not  denied ;  but  we  should  require  the  use  of  the  clearest  and  most 
unequivocal  words  to  force  us  to  such  a  conclusion. 

The  act  of  1803  requires  the  clerk  of  the  county  court  to  record  all 
conveyances  of  land  lying  in  his  county,  duly  certified  and  acknowl- 
edged, which  are  delivered  to  him  for  that  purpose  (Clay's  Digest, 
154-155);  and  the  thirteenth  section  provides,  that,  in  case  of  the  loss 
or  destruction  of  the  original  deed,  the  record,  or  a  duly  certified  tran- 
script, shall  be  received  in  evidence,  "and  be  as  good  and  effectual  and 
available  in  law  as  if  the  original  deed  or  conveyance  had  been  pro- 
duced and  proved."  In  giving  to  the  record  the  same  degree  of  force 
that  the  original  deed  would  have  had,  it  was  doubtless  presumed  that 
the  clerk  would  make  a  true  copy,  "word  for  word,"  as  another  section 
of  the  act  requires  him  to  do ;  and  we  think  it  was  only  the  record 
when  thus  made  that  it  was  intended  to  invest  with  unimpeachable  ver- 
ity. In  other  words,  to  make  it  a  record,  it  must  be  a  copy.  Even 
judicial  records,  made  under  the  sanction  of  judicial  officers,  and  in 
themselves  originals,  have  not  always  been  held  conclusive  as  to  juris- 
dictional facts.  Here  the  act  contemplates  nothing  but  a  copy:  and 
it  is  to  this  copy,  when  made  by  the  clerk,  that  it  was  the  intention  of 
the  law  to  accord  unimpeachable  verity.  It  is  prima  facie  evidence,  on 
the  ground  that  all  officers  must  be  presumed  to  have  discharged  the 
duties  which  the  law  requires  of  them;  and  the  statute  also  dispenses 
with  any  further  proof  of  the  execution  than  the  production  of  the 
record  or  tlie  transcrijjt.     But  we  are  satisfied  that  it  could  never  have 


Sec.  3)  DEGREES   OF   SECONDARY    EVIDENCE  985 

been  intended  to  make  the  record  as  effectual  as  the  original,  unless 
it  was  a  true  copy;    and  we  must,  therefore,  hold  that  it  is  not  con- 
clusive.    *     *     * 
Judgment  affirmed.** 


ESLOW  et  al.  v.  MITCHELL. 
(Supreme  Court  of  Michigan,  1873.     26  Mich.  500.) 

Campbell,  J."  The  plaintiffs  in  error,  who  were  defendants  be- 
low, held  a  chattel  mortgage  on  certain  articles  used  in  a  billiard  sa- 
loon, given  by  one  George  W.  Closson,  in  January,  1870,  and  falling 
due  March  15,  1870.  They  were  in  possession  of  the  chattels  from 
a  time  not  long  after  the  date  of  the  mortgage.  There  was  evidence 
tending  to  show  a  sale  and  conveyance  of  the  goods  by  the  mortgagees, 
to  one  Teachout,  in  February,  1870,  before  the  mortgage  matured. 
Some  time  before  its  maturity,  Closson  empowered  one  Lane  as  his 
agent,  to  pay  the  mortgage  and  get  the  property  back,  and  dispose  of 
it.  Lane  tendered  the  amount,  on  the  day  it  became  due,  and  the 
mortgagees  did  not  accept  the  money,  nor  return  the  goods.  Lane  then 
sold  the  property  to  Mitchell,  who  made  demand,  and  on  refusal 
brought  trover. 

The  principal  questions  arise  upon  the  effect  of  the  tender,  and 
of  the  sale  to  Teachout,  and  upon  the  vaUdity  of  the  transfer  to 
Mitchell.  Some  further  questions  also  arose  on  the  trial,  upon  rul- 
ings on  evidence. 

To  prove  the  power  of  attorney  to  Lane,  evidence  of  its  loss  was 
given,  and  it  was  then  made  out  by  secondary  evidence.  Lane  was 
allowed  to  show  its  contents  from  memory,  and  this  was  objected  to 
on  two  grounds:  first,  because  there  was  better  evidence  in  the  form 
of  a  copy,  in  the  hands  of  Mitchell's  counsel;  and,  second,  because 
there  was  a  subscribing  witness  who  should  have  been  sworn. 

The  supposed  copy  did  not  appear  to  have  been  compared  by  Lane, 
so  that  he  could  have  identified  it,  and  there  is  no  rule  of  law  diat  re- 
quires secondary  evidence  to  be  of  one  kind  rather  than  another, 
where  the  writing  is  a  private  writing,  and  no  counterpart  is  legally 
presumed  or  required  to  exist.  If  the  evidence  produced  does  not 
clearly  show  the  tenor  of  the  document,  of  course  it  fails;  and  if 
parties  willfully  keep  back  evidence  in  their  possession,  which  might 
clear  up  a  doubtful  point,  their  conduct  will  have  a  tendency  to  injure 
their  case.     But  there  is  no  doubt  private  papers  may  be  made  out  by 

4  2  And  so  in  Wetmore  State   Kanli   v.  Courter,  97  Kan.   178,   155  Tac.  27 

roinpare  Ming  v.  Olster.  105  Mo.  400.  02  R.  W.  R98  (T.IOO).  where  a  copy 
from  the  deed  record  was  used  to  prove  an  alteration  in  the  original 
*3  Statement  and  part  of  opinion  omitted. 


98G  THE  BEST  EVIDENCE  (Ch.  6 

parol  secondary  evidence,  and  the  objection  to  it,  if  there  be  any,  is 
one  of  weight  and  not  of  competency.     And  in  this  case,  for  anything 
appearing,  it  may  have  been  the  best  attainable,  and  the  most  satis- 
factory.    *    *     * 
Judgment  affirmed.** 

4*  And  so  in  People  v.  Christian,  144  Mich,  247,  107  N.  W.  919  (1906),  where 
it  was  held  that  the  defendant  should  have  heen  permitted  to  testify  to  the 
contents  of  a  lost  letter  from  a  public  officer,  though  it  was  admitted  that 
an  office  copy  was  in  existence  from  which  a  certified  copy  could  have  been 
obtained. 

See,  also,  Rosenbaum  v.  Podolsky,  97  Misc.  Rep.  614,  162  N.  Y.  Supp.  227 
(1916),  where  it  was  held  that  since  the  original  contract  was  unavailable, 
because  on  file  in  a  foreign  court,  the  party  was  entitled  to  prove  the  contents 
by  parol,  though  he  could  have  obtained  a  copy  from  his  own  office  in  another 
state,  the  court  observing:  "*  *  *  Although  the  argument  is  plausible, 
it  is  apparent  on  a  moment's  reflection  that  proof  of  an  instrument  by  proving 
a  copy  is  merely  one  form  of  parol  testimony  as  to  its  contents;  and  I  am 
not  aware  of  any  rule  of  law  that  makes  a  distinction  of  grade  In  secondary 
evidence.  Its  probative  force  will  of  course  vary  according  to  the  quality  of 
the  proof,  but  if  parol  testimony  is  permissible  it  is  competent ;  its  character 
may  be  such  as  the  party  elects  or  finds  possible,  assuming  of  course  always 
that  it  meets  the  other  requirements  relating  to  evidence  generally.  The  same 
rule  applies  to  primary  evidence.  Seidenspinner  v.  Metropolitan  Life  Ins. 
Co.,  175  N.  Y.  95,  98  [67  N.  E.  123  (1903)] ;  People  v.  Gonzalez,  35  N.  Y.  49,  61 
[1866]." 

Where  a  copy  is  preferred.  It  must  appear  that  one  is  in  existence  and 
available  in  order  to  exclude  oral  testimony.  Universal  Oil  &  Fertilizer  Co, 
V,  Burney,  174  N.  C.  382,  93  S.  E.  912  (1917), 


Sec.  1)  THE  "parol  evidence"  rule  987 

CHAPTER  VII 
THE  "PAROL  EVIDENCE"  RULE  ^ 


SECTION    1.— EVIDENCE    TO    VARY,    CONTRADICT,    OR 
AVOID  CERTAIN   WRITTEN   INSTRUMENTS 


KAINES  V.  KNIGHTLY. 

,(Court  of  King's  Bench,  16S3.     Skin.  54.) 

The  case  upon  evidence  was,  a  policy  of  assurance  was  drawn  from 
Archangel  to  Legorn,  and  assumpsit  being  brought  upon  it,  the  defend- 
ant said,  that  the  agreement  before  the  subscription  was,  that  the 
adventure  should  begin,  but  from  the  Downs ;  but  this  agreement  was 
not  put  into  writing.  This  policy  is  but  a  mere  parol  agreement,  and 
so  may  be  altered  or  discharged  by  agreement  by  parol;  but  without 
it  be  put  in  writing,  it  shall  be  taken  that  the  policy  speaks  the  minds 
of  the  parties ;  for  policies  are  things  well  known,  and  go  as  far  as 
trade  goes;  and  to  suffer  them  to  be  defeated  by  agreements  not 
appearing,  is  to  lessen  their  credit,  and  to  make  them  of  no  value, 
which  yet  are  countenanced  by  two  several  Acts  of  Parliament.  That 
the  party  may  as  well  say,  he  is  to  have  ten  guineas  premium,  though 
the  policy  says  but  three ;  as  to  say  he  assured  but  from  such  a  place, 
scil.  The  Downs,  when  the  policy  says  it  was  from  Archangel.  The 
custom  of  merchants  ought  to  be  proved  by  those  that  have  had  fre- 
quent experience,  and  have  known  cases  so  ruled.  'Twas  allowed, 
that  if  a  ship  was  laden  at  Aleppo,  and  come  to  Messina,  that  she  may 
be  insured ;  the  adventure  is  to  begin  from  Messina ;  but  then  it  must 
be  so  express'd,  nay  it  need  not  be  express'd  that  she  was  laden  at 
Aleppo,  (though  the  opinion  of  some  merchants  was  so)  as  Pember- 
ton,  Chief  Justice,  said;  but  if  the  insurance  was  of  goods  laden  at 
Aleppo,  and  they  were  indeed  laden  at  Messina,  it  might  make  a 
difference.  Pemberton  said,  that  policies  were  sacred  things,  and  that 
a  merchant  should  no  more  be  allowed  to  go  from  what  he  had  sub- 
scribed in  them,  than  he  that  subscribes  a  bill  of  exchange,  payable 
at  such  a  day,  shall  be  allowed  to  go  from  it,  and  say  it  was  agreed  to 
be  upon  a  condition  &c.  w^hen  it  may  be  that  the  bill  had  been  nego- 
tiated;  for  though  neither  of  them  are  specialties,  yet  they  are  of  great 

1  The  cases  under  this  topic  have  been  selected  primarily  for  the  purpose 
of  brin,!?lng  out  the  renl  nature  of  the  rule  or  rules  Involved,  and  It  is  hoped 
that  this  will  also  show  why  the  subject  could  be  dealt  with  more  satisfac- 
torily, if  distributed  to  more  appropriate  courses. — Ed. 


988  TnE  "parol  evidence"  rule  (Ch.  7 

credit,  and  much  for  the  support,  conveniency,  and  advantage  of  trade ; 
and  the  jury  found  contrary  to  the  direction  of  the  Court:  and  after- 
wards in  ]\Iich.  term,  there  was  another  trial  at  Bar,  and  a  verdict 
according  to  direction  for  the  plaintiff.  Afterwards  an  action  upon  the 
case  was  brought,  for  telling  him  that  the  ship  was  in  the  Downs,  when 
in  truth  she  was  not,  &c. 


PRESTON  V.  MERCEAU. 

(Court  of  Common  Pleas,  1779.    2  Wm,  Bl.  1249.) 

Action  on  the  case  for  the  use  and  occupation  of  a  house,  of  which, 
on  the  21st  of  July,  1775,  it  was  agreed  in  writing  "that  a  lease  should 
be  let  by  Christiana  Preston  to  Abraham  Gamage  for  twenty-one  years 
at  i26.  per  annum,  to  commence  from  Michaelmas  then  next."  Gam- 
age  died  and  made  Merceau  his  executor,  who  paid  i26.  into  Court 
for  one  year's  rent.  On  the  trial  the  plaintiff  offered  to  shew,  by 
parol  evidence,  that  besides  the  £26.  per  annum,  the  defendant  had 
agreed  to  pay  £2.  12  s.  6d.  a  year,  being  the  ground  rent  of  the  prem- 
ises, to  the  ground  landlord ;  but  no  evidence  was  offered  of  the 
actual  payment  of  such  ground  rent  during  the  testator's  life,  without 
which,  De  Grey,  C.  J.,  thought  such  parol  evidence  inadmissible^,  and 
nonsuited  the  plaintiff.  And  now  Davy  and  Grose  moved  to  set  aside 
this  nonsuit,  alleging  that  this  was  evidence  not  to  alter,  or  vary,  but 
to  explain  the  [agreement].  That  this  was  not  a  solemn  deed  or 
will,  but  a  mere  executory  act;  and  had  a  bill  in  Chancery  been 
brought  to  carry  this  into  execution,  parol  evidence  would  have  been 
admitted  to  prove  the  agreement  to  pay  the  ground  rent.  For  in 
Joynes  and  Statham,  the  29th  of  October,  1746,  3  Atk.  388,  parol  evi- 
dence was  admitted  to  shew,  that  an  agreement  for  a  lease  at  £9.  a 
year  was  to  be  clear  of  taxes. 

But  by  Blackstone,  ].,  (absente  Gould,  J.)  I  am  clearly  of  opin- 
ion that  Lord  Chief  Justice  did  right  in  rejecting  this  evidence. 
Courts  should  be  very  cautious  in  admitting  any  evidence  to  supply 
or  explain  written  agreements.  Else  the  Statute  of  Frauds  would  be 
eluded,  and  the  same  uncertainty  introduced  by  suppletory  or  ex- 
planatory evidence,  which  that  statute  has  suppressed  in  respect  to 
the  principal  object.  It  never  ought  to  be  suffered,  so  as  to  contradict 
or  explain  away  an  explicit  agreement,  for  that  is  in  effect  to  vary  it. 
Here  is  a  positive  agreement  that  the  tenant  shall  pay  i26.  Shall  wc 
admit  proof  that  this  means  £28.  12s.  6d.  ?  What  is  it  to  the  tenant  by 
whom  the  rent  is  to  be  paid,  so  as  he  is  obliged  to  pay  more  than  his 
contract  expresses?  We  can  neither  alter  the  rent  nor  the  term,  the 
two  things  expressed  in  this  agreement.  With  respect  to  collateral 
matters  it  might  be  otherwise.  He  might  shew  who  is  to  put  the 
house  in  repair,  or  the  like,  concerning  which  nothing  is  said ;  but  he 
cannot  by  parol  evidence  shorten  the  term  to  fourteen  or  extend  it  to 


Sec.  1)  CONTRADICTING   INSTRUMENTS  9^0 

twenty-five  years,  or  make  the  rent  other  than  £26.  per  annum.  The 
case  in  Atkins  is  of  a  mere  executory  act,  in  which  the  master  was  to 
settle  the  proper  covenants,  and  therefore  had  a  right  to  inquire  who 
was  to  pay  the  taxes.  Besides,  there  were  strong  suggestions  of  fraud 
in  making  the  written  agreement,  as  one  party  could  neither  read  nor 
write. 

Nares,  J.,  of  the  same  opinion.  Great  caution  should  be  used  in 
admitting  explanatory  evidence,  especially  in  a  case  of  a  specific  rent. 
This  is  an  instrument  in  writing,  and  would  have  nonsuited  the  plain- 
tiff before  the  statute  of  11  Geo.  2,  c.  19,  sect.  14. 

Rule  discharged. 


RICH  V.  JACKSON. 
(Court  of  Chancery,  1794.    4  Brown,  Ch.  Rep.  514.) 

The  bill  stated,  that  William  Stiles,  since  deceased,  being  possessed 
of  certain  premises  in  Fleet  Street,  in  1791,  William  Jackson,  the 
defendant's  late  husband,  entered  into  a  treaty  with  him  for  the  lease 
thereof,  and,  in  a  'conversation  between  them  on  the  subject,  offered 
him  eighty  guineas  a  year  for  the  same,  and  that  he,  William  Jackson, 
would  pay  all  the  taxes  thereon,  which  Stiles  agreed  to  accept. 

That  Stiles  being  then  in  a  bad  state  of  health  at  Tooting,  Jackson, 
in  September,  in  that  year,  went  thither,  and  it  having  been  mentioned 
by  Stiles  and  Jackson,  in  the  presence  of  witnesses,  that  Stiles  was 
to  receive  eighty  guineas  a  year  for  the  premises,  clear  of  all  taxes, 
Jackson  drew  up  a  memorandum  in  his  own  handwriting,  in  which 
(after  the  usual  introductory  words)  were  the  following:  "Mr.  Wil- 
liam Stiles  doth  agree  to  let  and  grant  a  lease  for  twenty-one  years, 
to  be  reckoned  from  Michaelmas,  1791,  of  (the  premises)  on  the  afore- 
said William  Jackson's  paying  to  the  aforesaid  William  Stiles  £84. 
per  annum,  as  follows  (that  is  to  say),  £21.  for  every  quarter;  and  the 
said  William  Jackson  doth  agree  to  pay  the  said  William  Stiles,  his 
heirs,  executors,  and  administrators,  the  aforesaid  sum  of  £84.  per  an- 
num, to  be  paid  quarterly  as  aforesaid ;"  which  agreement  was  signed 
by  Stiles  and  Jackson,  and  attested  by  Nathaniel  Seagcr,  who  was  a 
witness  in  the  cause.  That  before  any  rent  became  due,  Jackson  \yrote 
to  Stile's  attorney,  in  order  that  a  proper  lease  might  be  prepared  of 
the  premises,  but  the  same  was  omitted  to  be  done,  and  upon  the  21st 
of  November  following,  and  before  any  lease  was  prepared.  Stiles  died, 
having  made  his  will,  whereby  he  gave  the  premises  (int.  al.)  to  Mr. 
Thomas  Whitehead,  who  in  February,  1792,  agreed  with  the  plain- 
tiff for  the  purchase  thereof,  and  the  same  were  properly  cnnvcvcd  to 
the  plaintiff. 

That  the  plaintiff  was,  at  the  time  of  the  conveyance  to  him,  ac- 
quainted with  the  verbal  and  written  agreement  between  Stiles  and 
Jackson. 


990  THE  "parol  evidence"  rule  (Ch.  7 

That  Whitehead  having  given  notice  to  Jackson,  that  the  future 
rents  would  be  payable  to  the  plaintiffs,  he  obtained  from  Jackson  a 
copy  of  the  written  agreement,  from  whence  the  plaintiff's  attorney 
prepared  a  lease,  containing  the  usual  covenants,  with  a  reservation 
of  rent,  at  £84.  a  year,  clear  of  all  taxes  whatever,  which  was  sent  to 
Jackson. 

It  appeared  by  the  answer,  that  Jackson  refused  this  lease,  and 
caused  a  lease  to  be  drawn  on  the  terms  of  paying  £84.  per  annum, 
without  the  words  "clear  of  taxes,"  which  was  also  refused  by  the 
plaintiffs. 

It  was  stated  in  the  bill,  and  admitted  by  the  answer,  that,  about 
the  29th  May,  Jackson  died  intestate,  arid  that  the  defendants  had 
administered  to  him. 

The  plaintiff  stated  by  his  bill,  but  it  was  neither  admitted  nor  de- 
nied by  the  answer,  that  the  plaintiff  had  tendered  to  the  defendant 
the  lease,  with  the  reservation  of  a  clear  rent,  which  she  had  refused  ; 
on  which  account  the  bill  prayed  a  specific  performance  of  the  verbal 
agreement,  and  that  a  lease  might  be  prepared  and  executed,  reserv- 
ing a  rent  of  £84.  clear  of  all  taxes,  and  an  injunction  to  restrain  the 
under  mentioned  articles. 

The  defendant  by  her  answer  said,  she  was  not  present  at  any  of  the 
conversations,  but  that  she  had  frequently  heard  William  Jackson  in 
his  lifetime  say,  that  it  never  was  understood  that  he  should  pay  the 
land  tax,  that  it  was  not  an  hasty  transaction,  but  that  the  agreement 
was  left  with  Stiles  for  a  day  of  two  for  his  perusal,  and  that  he  had 
returned  it  with  a  note,  with  an  immaterial  addition,  which  was  made 
to  it.  And  that  she  did  not  believe  that  Stiles  would  have  raised  such 
dispute  had  Jackson  survived. 

The  answer  then  stated  (which  had  also  been  mentioned  in  the  bill), 
that  the  defendant  having  paid  £16.  8d.  for  land  tax,  brought  an  action 
in  the  Court  of  Common  Pleas  for  the  recovery  thereof,  the  plaintiff 
having  refused  to  deduct  the  same  in  the  payment  of  the  rent;  and 
the  cause  being  tried  at  Guildhall,  before  the  present  Lord  Chancellor, 
then  Lord  Chief  Justice  of  the  Common  Pleas,  the  defendant  offered 
parol  evidence  in  his  defence,  in  contradiction  to  the  written  agree- 
ment, but  his  Lordship  was  pleased  to  reject  such  evidence,  and  direct- 
ed a  verdict  to  be  given  for  the  defendant  (then  plaintiff)  for  £16.  8d. 
with  costs,  with  liberty  to  the  plaintiff  (defendant  at  law)  to  move  the 
Court  to  impeach  the  same,  if  he  should  be  so  advised;  and  that,  up- 
on an  application  of  the  plaintiff  to  the  Court  of  Common  Pleas,  the 
Court  api)roved  the  verdict,  and  refused  a  rule  to  show  cause  why  the 
same  should  not  be  set  aside. 

The  common  injunction  had  been  granted  in  this  cause,  and,  upon  a 
motion  to  discharge  the  same,  Lord  Chancellor  refused  so  to  do,  and 
said  he  would  permit  the  cause  to  go  on  to  another  hearing. 

And  the  cause  now  coming  on  to  be  heard, 

Mr,  Mansfield,  and  Mr.  Abbot,  for  the  plaintiff,  contended  that  the 


Sec.  1)  CONTRADICTING   INSTRUMENTS  991 

plaintiffs  had  a  right  to  be  reHeved,  upon  proving  the  parol  agreement, 
unless  there  was  any  rule  in  this  Court  to  prevent  the  reading  parol 
evidence,  to  show  what  was  the  intention  of  the  parties. 

This  day,  February  26th,  Lord  CiianceIlor  ^  gave  judgment  to  the 
following  effect : 

From  the  evidence,  believing  the  witnesses  to  speak  truth,  it  is  im- 
possible to  mistake  the  meaning  of  the  parties  to  be  exactly  what  Mr. 
Mansfield  has  stated,  that  the  rent  to  be  paid  was  meant  to  be  a  clear 
rent;  but  the  parties  had  concluded  the  matter  by  a  written  agree- 
ment, which  was,  that  a  lease  should  be  granted  for  twenty-one  years, 
at  a  rent  of  eighty  guineas  a  year,  and  the  tenant  paying  his  twenty 
guineas  a  quarter,  including  in  it  his  land-tax  receipt.  It  can  only  be 
according  to  the  sense  the  law  puts  upon  it. 

The  party  died  before  the  payment  of  any  rent,  so  that  the  whole 
matter  remains  upon  the  agreement. 

The  Court  of  Common  Pleas  rejected  the  parol  evidence  very  prop- 
erly. 

I  am  satisfied  that  there  is  no  difference  in  the  case  in  equity,  where 
the  party  only  comes  for  a  more  formal  execution  of  the  agreement. 

1  looked  into  all  the  cases :  I  cannot  find  that  the  Court  has  ever 
taken  upon  itself,  to  add  to  the  form  of  the  agreement;  that  in  re- 
peated instances  the  Court  has  refused  to  do  so,  though  it  has  been 
insisted,  that  the  parol  evidence  of  the  adverse  party  has  shown  the 
written  agreement  to  be  against  conscience. 

Joynes  v,  Statham  (6  Ves.  335,  note)  was  a  case  of  that  sort ;  thd 
parol  evidence,  on  the  part  of  the  defendant,  showed  the  plaintiff  had 
taken  an  unfair  advantage,  and  it  was  his  (defendant's)  understanding 
that  he  was  to  receive  a  clear  rent.  Lord  Hardwicke  admitted  the 
evidence  to  be  read,  to  rebut  the  equity.  Mr.  Atkyns's  note  is  ver> 
long;  I  looked  at  Lord  Hardwicke's  own  note,  which  is  very  short 
He  mentions  Walker  v.  Walker,  as  cited,  and  very  little  of  the  argu^ 
ment  or  evidence.  It  then  says,  "Decree  a  specific  performance  on 
the  terms  of  the  answer,  the  plaintiff  submitting  to  this  rather  than  to 
have  his  bill  dismissed."  His  intention  was  theref9re  to  dismiss  the 
bill,  but  he  gave  the  plaintiff  this  option.  Walker  v.  Walker  (6  Ves. 
335,  note)  proceeded  exactly  on  the  same  ground,  where  the  second 
surrender  was  to  be  the  consideration  of  the  first.  The  cases  cited 
were  those  in  Vernon,  where  the  act  promised  to  be  done  on  one  part, 
raises  the  consideration,  without  which  the  party  would  not  have  done 
that  which  he  did.  The  objection  was  taken,  that  it  was  to  add  to 
an  agreement;  Lord  Hardwicke  said  no,  it  was  to  rebut  an  equity. 
Legal  V.  Miller  is  a  little  different  in  circumstances  from  this,  but  pro- 
ceeds on  the  same  ground :  Pitcairne  v.  Ogbourne  is  not  like  this ; 
the  objection  there  ought  to  have  been  to  the  relevancy,  not  the  com- 
petency, of  the  evidence.     It  was  evidence  of  a  private  and  fraudulent 

2  Lord  Loughborough. 


992  THE  "parol  evidence"  rule  (Ch.  7 

agreement,  and  the  bill  dismissed  on  that  ground.  In  Baker  v.  Payne, 
the  evidence  was  very  properly  admitted,  and  the  agreement  was  cor- 
rected by  original  minutes,  through  the  medium  of  parol  evidence,  of 
the  custom  of  the  trade.  In  Filmer  v.  Gott,  the  evidence  was  not  to 
contradict  the  deed,  but  to  show  the  deed  was  obtained  by  fraud.  The 
King  V.  Scammonden  was  properly  determined.  Brodie  v.  St.  Paul 
is  but  slightly  mentioned  in  the  report.  These  are  the  cases.  The 
hardness  of  the  case,  under  special  circumstances,  may  induce  the 
Court  to  refuse  decreeing  a  performance,  or  to  leave  it  to  the  plain- 
tiff's remedy  at  law ;  but  it  is  quite  impossible  to  admit  the  rule  of 
law  to  be  broke  in  upon;  and  that  requires,  that  nothing  should  be 
added  to  the  written  agreement,  unless  in  cases  where  there  is  a  clear 
subsequent  and  independent  agreement,  varying  the  former,  but  not 
where  it  is  of  matter  passing  at  the  same  time  with  the  written  agree- 
ment.' The  evidence  offered  here,  which  I  permitted  to  be  read,  but 
which  I  ought  not  to  have  admitted,  is  all  of  matter  passing  at  the 
same  time  with  the  written  agreement,  therefore  I  must  dismiss  the 
bill,  but  I  will  do  so  without  costs,* 


KEATING  V.  PRICE. 

(Supreme  Court  of  Now  York,  1799.    1  Johns.  Cas.  22,  1  Am.  Dec.  92.) 

This  was  an  action  on  the  case  founded  on  a  special  agreement. 
The  plea  was  the  general  issue,  with  a  notice  from  the  defendant, 
that  he  would  insist  on  some  special  matters  in  his  defence,  which, 
with  reference  to  the  point  decided  by  the  court,  it  will  be  unneces- 
sary to  state. 

On  the  trial  before  Lansing,  chief  justice,  at  the  last  Rensselaer 
circuit,  the  plaintiff  proved  a  written  agreement,  as  set  forth  in  the 
declaration,  by  which  the  defendant  promised  to  deliver  to  the  plain- 
tiff, at  the  city  of  Albany,  fifty  thousand  pipe  staves,  at  a  stipulated 
price,  on  or  before  the  1st  day  of  May,  1796. 

On  the  part  of  the  defendant,  it  was,  among  other  things,  proved, 
by  one  R.  Wait,  that  in  the  month  of  January,  1797,  he  had  a  con- 

3  Compare  Lord  Ilarrlwicke  in  Iloiikle  v.  Royal  Assurance  Co.,  1  Vos.  Sr. 
317  (1749):  "No  doul>t,  hut  tliis  court  has  jurisdiction  to  relievo  in  respect  of 
a  phiiu  nristake  in  contracts  in  writing  as  well  as  against  frauds  in  contracts: 
.so  that  if  rednced  into  writing  contrary  to  intent  of  the  parties,  on  proper 
I»roof  that  would  he  rectified.  But  the  plaintiff  comes  to  do  this  in  the  harsli 
est  case  that  can  happen:  of  a  policy,  after  the  event  and  loss  happened,  to 
vary  the  contract  so  as  to  turn  the  loss  on  the  Insurer,  who  otherwise,  it  is 
admitted,  cannot  be  charged:  however,  if  tlie  case  is  so  strong  as  to  require 
it,  the  court  ought  to  do  it." 

*  The  student  is  referred  to  the  proper  course  in  equity  for  the  various 
rules  governing  the  reformation  of  contracts  and  conveyances. 

A  large  number  of  the  English  cases  has  been  collected  in  a  note  by  the  re- 
porter to  the  principal  case. 


Sec.  1)  CONTRADICTING   INSTRUMENTS  993 

versation  with  the  plaintiff,  who  informed  him,  that  he,  the  plain- 
tiff, had  made  the  contract  with  the  defendant  for  ihe  delivery  of  the 
staves,  as  above  mentioned,  but  that  he  had  agreed  to  extend  the 
time  for  delivering  them  until  the  next  spring. 

A  verdict  was  taken  for  the  plaintiff  by  consent,  subject  to  the 
opinion  of  this  court  on  several  points,  and  among  others,  whether 
the  time  for  performing  the  contract  could  be  extended,  by  a  sub- 
sequent agreement  between  the  parties,  and  whether  Wait's  testi- 
mony could  be  received,  to  prove  the  declaration  of  the  plaintiff  to 
that  effect.     If  so,  it  was  agreed  that  a  nonsuit  should  be  entered. 

Per  Curiam.  This  being,  originally,  a  simple  contract,  we  are  of 
opinion,  that  it  was  competent  for  the  parties,  by  parol  agreement, 
to  enlarge  the  time  of  performing  it,  and  that  Wait's  testimony,  to 
prove  the  plaintiff's  declaration  to  that  effect,  was  properly  received. 
An  extension  of  the  time  may  often  be  essential  to  the  perform- 
ance of  executory  contracts,  and  there  can  be  no  reason  why  a  sub- 
sequent agreement  for  that  purpose,  should  not  be  valid.  Let  a  non- 
suit be  accordingly  entered. 

Judgment  of  nonsuit.^ 


KAIN  v.  OLD  et  al. 

(Court  of  King's  Bench,  1S24.     2  Barn.  &  C.  G27.) 

Assumpsit  for  a  breach  of  warranty  in  the  sale  of  a  ship.  The  jury 
returned  a  verdict  for  plaintiff,  subject  to  the  opinion  of  the  Court  on 
a  case  stated  which  sufficiently  appears  in  the  opinion.* 

Abbott,  C.  J.,  now  delivered  the  judgment  of  the  Court. 

This  is  an  action  of  assumpsit,  brought  for  the  recovery  of  damages 
for  the  breach  of  an  alleged  contract.    The  declaration  alleges  that,  in 

s  Accord:  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  58  (IS.3.3) ;  Enier.son  v.  Slater, 
22  How.  41,  16  L.  Ed.  360  (lSp9) ;  Harris  v.  Murphy,  Jenkins  &  Co.,  119  X.  C. 
34.  25  S.  E.  708,  56  Am.  St.  Rep.  656  (1896). 

.Tnst  how  far  this  rule  may  be  affected  by  the  statute  of  frauds  Is  not  en- 
tirely free  from  doubt.  In  case  of  contracts  within  the  statute  of  frauds  it 
seems  to  be  agreed  that,  if  a  modified  performance  is  agreed  on  and  carried 
out,  this  may  be  shown  as  a  defense  to  an  action  on  the  original  contract,  or. 
as  an  excuse  for  failure  to  perform  strictly,  and  also  that,  if  the  i)laintifT 
refrains  from  strict  performance  at  the  request  of  defendant,  e.  g..  delivery 
delayed  to  accommodate  the  defendant,  he  may  still  recover  upon  making  a 
tender  within  a  reasonable  time.  Cuff  v.  Penn,  1  M.  &  S.  21  (1S13) ;  Hickman 
V.  Haynes.  L.  R.  10  C.  P.  598  (1875). 

But  it  also  appears  that  an  executory  oral  agi'eement,  attempting  to  modify 
a  written  contract  within  the  statute  of  frauds,  will  not  enable  tho  plaintiff  to 
recover  on  the  modified  contract.  Goss  v.  Lord  Nugent,  5  !>.  &  Ad.  58  (18,3.3) ; 
Warren  v.  A.  B.  Mayer  Mfg.  Co.,  161  Mo.  112,  61  S.  W.  6i4  (1901). 

Such  problems,  however,  do  not  appear  to  involve  any  problem  peculiar  t<v 
the  law  of  evidence,  but  depend  rather  on  the  proper  construction  ot  the  stat 
ute  of  frauds. — Ed. 

6  Statement  condensed. 
HiNT.Ev.— 63 


994  THE  "parol  evidence"  rule  (Ch.  T 

consideration  that  the  plaintiff  would  buy  of  the  defendant's  testator 
a  certain  ship  at  a  price  mentioned,  the  testator  promised  that  the 
ship  was  copper  bolted;  that  relying  on  that  promise,  the  plaintiff 
bought  the  ship  and  paid  the  price;  that  he  afterwards  sold  the  ship 
to  one  Shepherd,  and  on  that  sale  warranted  the  ship  to  be  copper 
fastened ;  that  the  ship  was  not  copper  bolted ;  that  Shepherd  brought 
an  action  against  him  on  his  warranty,  and  recovered  damages  and 
costs.  At  the  trial  before  me  it  was  found,  that  the  defendant's  tes- 
tator being  sole  owner  of  the  ship,  signed  and  delivered  to  the  plain- 
tiff an  instrument  describing  the  ship  as  copper  bolted,  and  containing 
an  inventory  of  stores;  at  the  foot  of  which  was  written,  "Sold  the 
within  mentioned  ship  to  Messrs.  Kain  and  Son,  W.  Dodds."  And 
it  was  further  found  that  the  testator  received  the  sum  of  f  1650,  and 
executed  a  bill  of  sale  of  the  ship  to  Kain.  That  bill  of  sale  was  in 
the  usual  form,  and  contained  a  recital  of  the  certificate  of  registry, 
but  it  did  not  describe  the  vessel  as  copper  bolted.  It  was  further 
found  that  Kain  resold  the  ship  to  Shepherd,  according  to  printed 
particulars  similar  to  those  before  mentioned,  and  executed  to  him 
a  bill  of  sale  similar  to  that  which  was  executed  by  the  testator ;  that 
Shepherd  brought  an  action  on  the  case  against  him  on  his  warranty, 
that  the  ship  was  copper  fastened,  and  recovered. 

Upon  this  case  the  question  is,  whether  the  plaintiff  has  proved 
a  promise  according  to  his  declaration.  We  think  he  has  not.  The 
first  instrument  which  contains  a  description  of  the  ship  as  copper 
bolted,  and  an  inventory  of  her  furniture,  and  concludes  with  the 
words,  "Sold  the  within-mentioned  ship  to  Messrs.  Kain  and  Son, 
W.  Dodds"  cannot  in  our  opinion  be  regarded  as  an  instrument  of 
contract.  It  is  invalid  either  as  a  conveyance  or  as  an  agreement  to 
convey  the  ship,  by  the  register  acts,  because  it  does  not  contain  a 
recital  of  the  certificate  of  registry,  Biddell  v.  Leader,  1  B.  &  C. 
327.  And  it  is  imperfect  as  an  instrument  of  contract,  because  it  does 
not  mention  the  price,  and  this  defect  is  not  supplied  by  any  fact  ap- 
pearing in  the  case;  for  there  is  no  mention  of  any  price  as  agreed 
between  the  parties  before  or  at  the  time  when  Dodds  the  testator 
delivered  the  paper  to  the  plaintiff:  and  the  bill  of  sale  mentions  the 
sum  of  il650.  as  the  consideration  of  the  sale,  but  does  not  mention 
any  prior  contract  or  agreement.  We  do  not,  however,  rely  on  this 
imperfection,  the  objection  arising  out  of  the  register  act  being  de- 
cisive as  to  the  invalidity  of  the  paper.  The  bill  of  sale  then  is  the  only 
instrument  of  contract,  and  this  does  not  describe  the  ship  as  copper 
bolted ;  though  it  contains  covenants  for  the  title  and  for  further 
assurance.  The  description  of  copper  bolted  in  the  paper  can  there- 
fore be  considered  as  a  representation  only,  and  not  as  any  part  of 
the  contract.  The  contract  is  in  writing,  as  every  contract  for  the  sale 
of  a  ship  must  be. 

Where  the  whole  matter  passes  in  parol,  all  that  passes  may  some- 
times be  taken  together  as  forming  parcel  of  the  contract,  though  not 


Sec.  1)  CONTRADICTING   INSTRUMENTS  995 

always,  because  matter  talked  of  at  the  commencement  of  a  bargain 
may  be  excluded  by  the  language  used  at  its  termination.  But  if  the 
contract  be  in  the  end  reduced  into  writing,  nothing  which  is  not 
found  in  the  writing  can  be  considered  as  a  part  of  the  contract.  A 
matter  antecedent  to  and  dehors  the  writing,  may  in  some  cases  be 
received  in  evidence,  as  showing  the  inducements  to  the  contract ; 
such  as  a  representation  of  some  particular  quality  or  incident  to  the 
thing  sold.  But  the  buyer  is  not  at  liberty  to  show  such  a  representa- 
tion, unless  he  can  also  show  that  the  seller  by  some  fraud  prevented 
him  from  discovering  a  fault  which  he,  the  seller,  knew  to  exist. 
All  this  is  very  clearly  laid  down  in  the  judgment  delivered  by  the  late 
Lord  Chief  Justice  Gibbs  in  Pickering  v.  Dowson,  and  it  is  decisive  of 
the  present  case  wherein  the  plaintiff  has  neither  declared  upon,  nor 
proved  fraud  on  the  part  of  the  defendant's  testator,  but  has  de- 
clared upon  a  promise  or  contract.  The  postea  therefore,  is  to  be  de- 
livered to  the  defendant. 
Judgment  for  defendant. 


MILLER  v.  TRAVERS  et  al. 
(Court  of  Chancery,  1832.     8  Biug.  244.) 

TiNDAL,  C.  J.'^  In  this  case  the  plaintiff,  John  Riggs  Miller,  filed 
his  bill  against  the  defendants  for  the  purpose  of  establishing  the  will 
of  the  late  Sir  John  Edward  Riggs  Miller,  Bart.,  and  for  carrying 
into  execution  the  trusts  thereof.  One  of  the  defendants,  Elizabeth 
Wheatley,  was  the  sister  and  heiress  at  law  of  the  testator.  And 
upon  the  hearing  of  the  cause  before  His  Honour  the  Vice-Chancellor, 
after  the  answers  of  the  several  defendants,  and  amongst  others,  the 
answer  of  the  defendant,  Elizabeth  Wheatley,  had  been  put  in,  and 
witnesses  examined,  His  Honour  ordered,  amongst  other  things,  "That 
the  parties  should  proceed  to  a  trial  at  law  on  the  following  issue ;  viz. 
Whether  Sir  John  Edward  Riggs  Miller,  Bart.,  did  devise  his  estates 
in  the  county  of  Clare,  and  in  the  county  of  Limerick,  and  in  the  city 
and  county  of  the  city  of  Limerick,  or  either  and  which  of  them,  to 
the  trustees  mentioned  in  his  will,  and  their  heirs ;"  in  which  issue  the 
plaintiff  in  the  cause  was  to  be  the  plaintiff,  and  the  heiress  at  law  and 
her  husband  defendants. 

Against  this  part  of  the  decree  the  defendant,  Elizabeth  Wlieatley, 
has  appealed,  and  prays  a  rehearing  of  the  cause  so  far  as  respects 
that  part. 

Upon  the  hearing  of  this  question  on  appeal,  the  Lord  Chancellor  has 
been  pleased  to  request  the  assistance  of  the  Lord  Chief  Baron  and 
myself;  probably  foreseeing,  as  the  case  has  appeared  in  the  result, 
that  the  propriety  of  directing  an  issue,  at  least  as  to  the  devise  of  the 

^  Part  of  opinion  omitted. 


996  THE  "parol  evidence"  rule  (Ch.  7 

estates  in  the  county  of  Clare,  which  was  the  main  point  in  contention 
between  these  parties,  would  depend  upon  the  nature  of  the  evidence  to 
be  brought  forward  by  the  plaintiff,  upon  whom  the  affirmative  in 
such  issue  would  rest. 

For  if  the  evidence,  and  the  only  evidence  which  can  possibly  be 
brought  forward  by  the  plaintiff'  in  support  of  his  proposition,  is  of 
such  a  nature  and  description  as  to  be  inadmissible  at  the  trial  of  the 
cause,  it  would  be  the  duty  of  this  Court  to  refuse  the  issue;  it  being 
manifestly  to  the  advantage  of  both  parties  that  such  question  should 
be  decided  in  the  first  instance  by  the  Judge  sitting  in  equity,  rather 
than  that  the  very  same  question  should  be  decided  upon  the  very 
same  principles  of  evidence  by  the  Judge  at  Nisi  Prius,  after  an  ex- 
pense and  delay  that  must  be  worse  than  useless  to  all  concerned  in 
the  suit. 

Now  the  main  question  between  the  parties,  and  which  has  formed 
the  principal  subject  of  argument  before  us,  is  this.  Whether  parol 
evidence  is  admissible  to  show  the  testator's  intention  that  his  real 
estates  in  the  county  of  Clare  should  pass  by  his  will?  There  is  a 
subordinate  question  as  to  the  due  execution  of  one  sheet  of  the  will, 
to  which  we  shall  afterwards  advert,  and  upon  which  question  an  issue 
of  a  different  and  more  limited  form  than  that  which  has  been  at  pres- 
ent directed,  may  perhaps  properly  be  granted,  if  the  plaintiff'  thinks 
fit  to  insist  upon  it;  but  the  great  contention  between  the  parties  is 
upon  the  question  above  proposed,  as  to  the  admissibility  of  parol 
evidence  with  respect  to  the  estates  in  Clare. 

This  question  arises  upon  facts,  either  admitted  or  proved  in  the 
cause,  which  are  few  and  simple. 

The  testator  by  his  will,  duly  executed,  devised  "all  his  freehold 
and  real  estate  whatsoever,  situate  in  the  county  of  Limerick,  and 
in  the  city  of  Limerick,''  to  certain  trustees  therein  named  and  their 
heirs.  At  the  time  of  making  his  will  he  had  no  real  estate  in  the 
county  of  Limerick,  but  he  had  a  small  real  estate  in  the  city  of  Lim- 
erick, and  considerable  real  estates  situate  in  the  county  of  Clare. 

The  real  estate  in  the  city  of  Limerick  is  admitted  to  have  passed 
under  the  devise;  but  the  plaintiff  contends  that  he  is  at  liberty  to 
show  by  parol  evidence  that  the  testator  intended  his  estates  in  Clare 
also  to  pass  under  the  same  devise. 

The  general  character  of  the  parol  evidence  which  the  plaintiff  con- 
tends he  is  at  liberty  to  produce,  in  order  to  establish  such  intention 
in  the  devisor,  is  this;  first,  that  the  estate  in  the  city  of  Limerick  is 
so  small,  and  so  disproportioned  to  the  nature  of  the  charges  laid  upon 
it,  and  the  trusts  which  are  declared,  as  to  make  it  manifest  there 
must  have  been  some  mistake ;  and  in  order  to  show  what  that  mis- 
take was,  the  plaintiff  proposes  to  prove  that  in  the  copy  of  the  will 
which  had  been  submitted  to  the  testator  for  his  inspection,  and  had 
been  approved  and  returned  by  him,  the  devise  in  question  stood  thus : 
"All  my  freehold  and  real  estate  whatsoever  situate  in  the  counties  of 


Sec.  1)  CONTRADICTING   INSTRUMENTS  997 

Clare,  Limerick,  and  in  tlie  city  of  Limerick;"  that  the  testator  di- 
rected some  aherations  to  be  made  in  other  parts  of  his  will,  and  that 
the  same  copy  of  the  will,  accompanied  with  a  statement  of  the  pro- 
posed alterations,  was  sent  by  the  testator's  attorney  to  his  convey- 
ancer, in  order  that  such  alterations  might  be  reduced  into  proper 
form ;  and  that  upon  such  occasion  the  conveyancer,  besides  making 
the  alterations  directed,  did  by  mistake,  and  without  any  authority, 
strike  out  the  words  "counties  of  Clare,"  and  substitute  the  words 
"county  of"  in  lieu  thereof,  so  as  to  leave  the  devise  in  question  in  the 
same  precise  form  as  it  now  stands  in  the  executed  will.  The  plain- 
tiff further  proposes  to  prove,  that  a  fair  copy  of  the  will  so  altered 
was  sent  to  the  testator,  who,  after  having  kept  it  by  him  for  some 
time,  executed  the  same  in  the  manner  required  by  law,  without  ad- 
verting to  the  alteration  above  pointed  out.  Indeed,  without  enter- 
ing more  minutely  into  the  detail  of  the  evidence,  it  may  be  taken,  for 
the  purpose  of  the  argument,  that  if  parol  evidence  was  admissible 
by  law,  the  evidence  tendered  in  this  case  would  be  sufficient  to  es- 
tablish, beyond  contradiction,  the  intention  of  the  testator  to  have  been 
to  include  his  estates  in  Clare  in  the  devise  to  the  trustees.  Upon  the 
fullest  consideration,  however,  it  appears  to  the  Lord  Chief  Baron  and 
myself,  that  admitting  it  may  be  shown  from  the  description  of  the 
property  in  the  city  of  Limerick,  that  some  mistake  may  have  arisen, 
yet,  still,  as  the  devise  in  question  has  a  certain  operation  and  effect, 
namely,  the  effect  of  passing  the  estate  in  the  city  of  Limerick,  and  as 
the  intention  of  the  testator  to  devise  any  estate  in  the  county  of  Clare 
cannot  be  collected  from  the  will  itself,  nor  without  altering  or  adding 
to  the  words  used  in  the  will,  such  intention  cannot  be  supplied  by  the 
evidence  proposed  to  be  given.     *     *     * 

The  plaintiff,  however,  contends,  that  he  has  a  right  to  prove,  that 
the  testator  intended  to  pass  not  only  the  estate  in  the  city  of  Limerick, 
but  an  estate  in  a  county  not  named  in  the  will,  namely,  the  county 
of  Clare,  and  that  the  will  is  to  be  read  and  construed  as  if  the  word 
Clare  stood  in  the  place  of  or  in  addition  to  that  of  Limerick. 

But  this,  it  is  manifest,  is  not  merely  calling  in  the  aid  of  extrinsic 
evidence  to  apply  the  intention  of  the  testator,  as  it  is  to  be  collected 
from  the  will  itself,  to  the  existing  state  of  his  property ;  it  is  calling 
in  extrinsic  evidence  to  introduce  into  the  will  an  intention  not  ap- 
parent upon  the  face  of  the  will.  It  is  not  simply  removing  a  difhculty, 
arising  from  a  defective  or  mistaken  description ;  it  is  making  the  will 
speak  upon  a  subject  on  which  it  is  altogether  silent,  and  is  the  same 
in  effect,  as  the  filling  up  a  blank  which  the  testator  might  have  left 
in  his  will.  It  amounts,  in  short,  by  the  admission  of  parol  evidence, 
to  the  making  of  a  new  devise  for  the  testator,  which  he  is  supposed 
to  have  omitted. 

Now,  the  first  objection  to  the  introduction  of  such  evidence  is,  that 
it  is  inconsistent  with  the  rule,  which  reason  and  sense  lay  down,  and 


998  THE  "parol  evidence"  rule  (Ch.  7 

which  has  been  universally  established  for  the  construction  of  wills, 
namely,  that  the  testator's  intention  is  to  be  collected  from  the  words 
used  in  the  will,  and  that  words  which  he  has  not  used  cannot  be  added. 
Denn  v.  Page,  3  T.  R.  87. 

But  it  is  an  objection  no  less  strong,  that  the  only  mode  of  proving 
the  alleged  intention  of  the  testator  is,  by  setting  up  the  draft  of  the 
will  against  the  executed  will  itself.  As,  however,  the  copy  of  the 
will  which  omitted  the  name  of  the  county  of  Clare  was  for  some  time 
in  the  custody  of  the  testator,  and,  therefore,  open  for  his  inspection, 
which  copy  was  afterwards  executed  by  him  with  all  the  formalities 
required  by  the  statute  of  frauds,  the  presumption  is,  that  he  must 
have  seen  and  approved  of  the  alteration,  rather  than  that  he  over- 
looked it  by  mistake.  It  is  unnecessary  to  advert  to  the  danger  of 
allowing  the  draft  of  the  will  to  be  set  up  as  of  greater  authority  to 
evince  the  intention  of  the  testator  than  the  will  itself,  after  the  will 
has  been  solemnly  executed,  and  after  the  death  of  the  testator.  If 
such  evidence  is  admissible  to  introduce  a  new  subject-matter  of  devise, 
why  not  also  to  introduce  the  name  of  a  devisee,  altogether  omitted  in 
the  will?  If  it  is  admissible  to  introduce  new  matter  of  devise,  or  a 
new  devisee,  why  not  to  strike  out  such  as  are  contained  in  the  exe- 
cuted will?  The  effect  of  such  evidence  in  either  case  would  be,  that 
the  will,  though  made  in  form  by  the  testator  in  his  lifetime,  would 
really  be  made  by  the  attorney  after  his  death ;  that  all  the  guards 
intended  to  be  introduced  by  the  statute  of  frauds  would  be  entirely 
destroyed,  and  the  statute;  itself  virtually  repealed. 

And  upon  examination  of  the  decided  cases  ^  on  which  the  plaintiff 
has  relied  in  argument,  no  one  will  be  found  to  go  the  length  of 
supporting  the  proposition  which  he  contends  for ;  on  the  contrary, 
they  will  all  be  found  consistent  with  the  distinction  above  adverted 
to, — that  an  uncertainty,  which  arises  from  applying  the  description 
contained  in  the  will  either  to  the  thing  devised,  or  to  the  person  of 
the  devisee,  may  be  helped  by  parol  evidence;  but  that  a  new  subject- 
matter  of  devise,  or  a  new  devisee,  where  the  will  is  entirely  silent 
upon  either,  cannot  be  imported  by  parol  evidence  into  the  will  it- 
self. 

On  the  contrary,  the  cases  against  the  plaintiff's  construction  ap- 
pear to  bear  more  closely  on  that  point.  In  the  first  place,  it  is  well 
established,  that  where  a  complete  blank  is  left  for  the  name  of  a 
legatee  or  devisee,  no  parol  evidence,  however  strong,  will  be  allowed 
to  fill  it  up  as  intended  by  the  testator.  Hunt  v.  Hort,  3  Bro.  C.  C. 
311,  and  in  many  other  cases. 

8  In  the  omitted  passage  the  opinion  reviewed  the  following  cases  dealing 
with  the  construction  or  application  ol"  various  provisions  in  wills:  Lowe  v. 
Iluritingtowor,  4  Kuss.  n.'}2,  note;  Standen  v.  Standon.  2  Ves.  .Tr.  HSO  (179^); 
Moslcy  V.  Massey,  8  East,  149  (1S(J(j);  Selwood  v.  Mildniay,  :!  Ves.  Jr.  :iU6 
(1~'.)7);  Coodtitle  v.  Southern,  1  M.  &  S.  299  (1813);  Day  v.  Trig,  1  P.  Wil- 
liams, 2.S(;  (171.0). 


Sec.  1)  COXTUADICTINQ   INSTRUMENTS  990 

Now  the  principle  must  be  precisely  the  same,  whether  it  is  the 
person  of  the  devisee,  or  the  estate  or  thing  devised,  which  is  left  al- 
together in  blank.  And  it  requires  a  very  nice  discrimination  to  dis- 
tinguish between  the  case  of  a  will,  where  the  description  of  the  estate 
is  left  altogether  in  blank,  and  the  present  case,  where  there  is  a  total 
omission  of  the  estates  in  Clare. 

In  the  case  of  Doe  d.  Oxendcn  v.  Chichester,  4  Dow.  P.  C.  65,  it 
was  held  by  the  House  of  Lords,  in  affirmance  of  the  judgincnt  be- 
low, that  in  the  case  of  a  devise  of  "my  estate  of  Ashton,"  no  parol 
evidence  was  admissible  to  show  that  the  testator  intended  to  pass  not 
only  his  lands  in  Ashton,  but  in  the  adjoining  parishes,  which  he  had 
been  accustomed  to  call  by  the  general  name  of  his  Ashton  estate. 

The  Chief  Justice  of  the  Common  Pleas,  in  giving  the  judgment 
of  all  the  judges,  says,  "If  a  testator  should  devise  his  lands,  of  or 
in  Devonshire  or  Somersetshire,  it  would  be  impossible  to  say  that 
you  ought  to  receive  evidence  that  his  intention  was  to  devise  lands 
out  of  those  counties."  Lord  Eldon,  then  Lord  Chancellor,  in  page 
90  of  the  Report,  had  stated  in  substance  the  same  opinion.  The  case 
so  put  by  Lord  Eldon  and  the  Chief  Justice,  is  the  very  case  now 
under  discussion. 

But  the  case  of  Newburgh  v.  Newburgh,  decided  in  the  House  of 
Lords  on  the  16th  of  June,  1825,  appears  to  be  in  point  with  the 
present.  In  that  case  the  appellant  contended,  that  the  omission  of 
the  word  "Gloucester,"  in  the  will  of  the  late  Lord  Newburgh,  pro- 
ceeded upon  a  mere  mistake,  and  was  contrary  to  the  intention  of 
the  testator,  at  the  time  of  making  his  will,  and  insisted  that  she  ought 
to  be  allowed  to  prove,  as  well  from  the  context  of  the  will  itself 
as  from  other  extrinsic  evidence,  that  the  testator  intended  to  de- 
vise to  her  an  estate  for  life  as  well  in  the  estates  in  Gloucester,  which 
was  not  inserted  in  the  will,  as  in  the  county  of  Sussex,  which  was 
mentioned  therein. 

The  question,  "whether  parol  evidence  was  admissible  to  prove  such 
mistake,  for  the  purpose  of  correcting  the  will  and  entitling  the  appel- 
lant to  the  Gloucester  estate,  as  if  the  word  'Gloucester'  had  been  in- 
serted in  the  will,"  was  submitted  to  the  Judges,  and  Lord  Chief  Jus- 
tice Abbott  declared  it  to  be  the  unanimous  opinion  of  those  who  had 
heard  the  argument,  that  it  could  not. 

As  well,  therefore,  upon  the  authority  of  the  cases,  and  more  par- 
ticularly of  that  which  is  last  referred  to,  as  upon  reason  and  prin- 
ciple, we  think  the  evidence  offered  by  the  plaintiff  would  be  inad- 
missible upon  the  trial  of  the  issue,  and  that  it  would  therefore  be 
useless  to  grant  the  issue  in  the  terms  directed  by  the  Vice-Chancel- 
lor.     *     *     ♦ 

Order  reversed. 


1000  THE  "parol  evidence"  rule  (Ch.  7 

GUARDHOUSE  et  al.  v.  BLACKBURN  et  al. 
(Court  of  Probate,  1SG6.     L.  R.  1  Prob.  &  Div.  109.) 

The  defendants  in  this  case  were  the  executors  under  the  will  and 
codicil  of  Mrs.  Hannah  Jameson,  late  of  Netherton,  in  Cumberland, 
who  died  on  the  29th  of  August,  1863.  The  plaintiffs  were  the  resid- 
uary legatees  named  in  her  will.  The  will  was  dated  the  30th  of  May, 
1851,  and  the  codicil  the  13th  of  April,  1852,  and  both  were  proved  in 
common  form  by  the  defendants,  in  October,  1863.  The  probate  had 
since  been  called  in  by  the  plaintiff's,  and  the  will  and  codicil  were  pro- 
pounded by  the  defendants  in  the  ordinary  declaration. 

By  the  will  the  testatrix  disposed  of  three  dift"erent  estates,  called 
Folds,  Scales,  and  Stainton ;  the  estate  of  Scales  she  charged  with 
legacies  to  the  amount  of  £500.,  and  that  of  Stainton  with  eight  lega- 
cies of  the  amount  of  £100.  each.  She  duly  executed  a  codicil  to  her 
will  in  the  following  terms. 

"This  is  a  codicil  to  the  will  of  me  Hannah  Jameson,  of,  &c.,  which 
will  bears  date  the  30th  day  of  May,  1851.  I  revoke  the  bequest  of 
£100.  therein  made  to  my  nephew,  Edward  Blackburn,  and  in  lieu 
thereof  I  give  him  £200.  I  give  and  bequeath  the  legacy  or  sum  of  six 
hundred  pounds,  equally,  unto,  between,  and  amongst  the  therein  nam- 
ed Samuel  Jameson,  John  Jameson,  Dorothy  Smith,  Margaret  Arm- 
strong, Jane  Jameson,  and  Mary  Ann  Jameson ;  the  said  Jane  Jameson 
and  Mary  Ann  Jameson  taking  one-lifth  share  only,  upon  the  same 
conditions,  and  under  the  same  limitations  in  all  respects  as  I  have  in 
my  said  will  devised  my  estate  of  Folds  in  their  favour.  I  release 
and  discharge  my  said  estate  from  the  payment  of  the  legacies  therein 
given  to  my  executors,  and  I  direct  all  the  legacies  therein  and  herein 
given  (and  not  revoked)  to  be  paid  out  of  my  personal  estate.  In  all 
other  respects  I  ratifj'-  my  said  will.  In  witness  whereof,  I  have  here- 
unto set  my  hand  this  13th  day  of  April,  1852.     Hannah  Jameson." 

The  plaintiff's  admitted  the  due  execution  of  the  will  and  codicil  and 
the  only  question  raised  by  them  was  as  to  whether  the  words  "there- 
in and,"  at  the  end  of  the  codicil,  were  entitled  to  probate.  By  their 
plea  they  denied  that  the  codicil,  as  executed,  expressed  the  wishes 
and  intentions  of  the  deceased ;  and  alleged  that  she,  having  a  mind 
to  alter  her  will,  sent  for  William  Carrick,  her  solicitor,  and  gave 
him  instructions  for  a  codicil,  which  he  reduced  into  writing,  and 
which  instructions  were  pleaded;  which,  after  giving  and  revoking  the 
legacies  mentioned  in  the  codicil  as  executed,  concluded,  "And  I  charge 
all  the  said  legacies  on  my  personal  estate."  That  the  said  William 
Carrick,  intending  to  prepare  the  said  codicil  for  execution,  and  tc 
make  a  few  verbal  alterations  only,  wrote  out  the  paper  propounded, 
but  that  he  inadvertently,  or  by  mistake,  and  without  any  insLruction.s 
whatever  to  that  effect  from  the  deceased,  wrote  the  words,  "And  1 
direct  all  the  legacies  therein  and  herein  given  (and  not  revoked)  to  be 


Sec.  1)  CONTRADICTING   INSTRUMENTS  '    1001 

paid  out  of  my  personal  estate  in  lieu  of ;  and  T  charge  all  the  said 
legacies  on  my  personal  estate."  That  the  effect  of  the  said  words, 
"therein  and,"  which  had  the  effect  of  discharging  the  estate  of  Scales 
of  legacies  to  the  amount  of  £500.,  and  of  the  estate  of  Stainton  of  the 
payment  of  legacies  to  tiie  amount  of  £800.,  was  not  observed  by  the 
said  William  Carrick,  nor  by  the  deceased,  when  she  executed  the  codi- 
cil, and  that  the  said  paper  writing,  containing  the  words  "therein 
and,"  was  not  the  codicil  of  the  said  deceased. 

William  Carrick  said  in  examination :  he  took  the  instructions  from 
the  testatrix  by  word  of  mouth,  at  her  residence,  and  wrote  them  down 
in  her  presence  on  the  draft.  The  draft  was  intended  to  be  copied  for 
execution.  From  the  draft  he  prepared  in  her  presence  a  copy  for 
execution  for  her,  varying  in  a  few  particulars  from  the  draft,  but 
not  in  substance,  until  he  came  to  the  words  in  dispute.  He  read  over 
the  draft  to  her,  and  asked  if  it  was  as  she  intended  it.  She  expressed 
herself  satisfied  with  it.  He  read  the  copy  over  to  her,  so  that  she 
could  understand  it.  She  said  nothing,  but  proceeded  to  execute  it. 
He  retained  the  codicil  in  his  custody  until  the  deceased's  death.  She 
gave  him  no  instructions  to  discharge  the  real  estates  of  Scales  and 
Stainton  from  the  legacies  of  £1300. ;  and  he  had  no  instructions  from 
her  to  insert  the  words  "therein  and."  He  inserted  them  by  inadver- 
tence. Her  attention  was  not  particularly  directed  to  them,  and  his  at- 
tention was  first  directed  to  them  after  her  death. 

Sir  J.  P.  Wilde."  *  *  *  Supposing,  then,  -parol  evidence  to  be 
admissible  in  such  a  case  as  the  present,  the  question  recurs  to  what 
extent  is  it  still  open  to  the  Court  since  the  statute,  to  act  upon  such 
evidence,  for  the  purpose  of  rejecting  the  whole  or  expunging  any  por- 
tion of  the  written  testament  to  which  the  testator  has  duly  affixed  his 
name  ?  A  more  important  inquiry  could  hardly  arise.  For  you  may  as 
effectually  incline  the  balance  by  taking  out  of  one  scale  as  by  adding  to 
the  other,  and  it  is  quite  as  easy  to  vary  the  effect  of  a  will  in  any 
given  direction  by  leaving  words  out  as  by  putting  them  in.  After 
much  consideration,  the  following  propositions  commend  themselves 
to  the  Court  as  rules  which,  since  the  statute,  ought  to  govern  its  action 
in  respect  of  a  duly  executed  paper :  First,  that  before  a  paper  so 
executed  is  entitled  to  probate,  the  Court  must  be  satisfied  tliat  the 
testator  knew  and  approved  of  the  contents  at  the  time  he  signed  it. 
Secondly,  that  except  in  certain  cases,  where  suspicion  attaches  to  the 
document,  the  fact  of  the  testator's  execution  is  sufficient  proof  that 
he  knew  and  approved  the  contents.  Thirdly,  that  although  the  tes- 
tator knew  and  approved  the  contents,  the  paper  may  still  be  rejected, 
on  proof  establishing,  beyond  all  possibility  of  mistake,  that  he  did  not 
intend  the  paper  to  operate  as  a  will.  Fourthly,  that  although  the  tes- 
tator did  know  and  approve  the  contents,  the  paper  may  be  refused 
probate,  if  it  be  proved  that  any  fraud  has  been  purposely  practised 

»  Part  of  opinion  omitted. 


1002'  *  THE  "parol  evidence"  rule  (Ch.  7 

on  tlie  testator  in  obtaining  his  execution  thereof.     Fifthly,  that  sub- 
ject to  this  last  preceding  proposition,  the  fact  that  the  will  has  been 
duly  read  over  to  a  capable  testator  on  the  occasion  of  its  execution,  or 
that  its  contents  have  been  brought  to  his  notice  in  any  other  way, 
should,  when  coupled  with  his  execution  thereof,  be  held  conclusive 
evidence  that  he  approved  as  well  as  knew  the  contents  thereof.    Sixth- 
ly, that  the  above  rules  apply  equally  to  a  portion  of  the  will  as  to  the 
whole.     The  first  and  second  of  these  propositions  are  amply  estab- 
lished by  the  case  of  Barry  v.  Butlin,  2  Moo.  P.  C.  480,  and  others  of 
that  class  in  the  Privy  Council.    The  third  was  also  well  approved  law 
in  the  Ecclesiastical  Courts,  for  there  must  be  an  "animus  testandi"  to 
constitute  a  paper  testamentary.    The  fourth  requires  no  comment,  and 
the  last  is  justified  by  the  case  of  Allen  v.  McPherson,  1  H.  of  L.  Cas. 
191.     It  remains  to  say  a  few  words  on  the  fifth.     It  is  here  that  the 
right  to  derogate  from  the  force  of  an  executed  paper  approaches  and 
receives  its  limit.     And  it  is  obvious  enough,  that  if  the  Court  should 
allow  itself  to  pass  beyond  proof  that  the  contents  of  any  such  paper 
were  read  or  otherwise  made  known  to  the  testator,  and  suffer  an  in- 
quiry by  the  oath  of  the  attorney  or  others  as  to  w"hat  the  testator  real- 
ly wished  or  intended,  the  authenticity  of  a  will  would  no  longer  re- 
pose on  the  ceremony  of  execution  exacted  by  the  statute,  but  would 
be  set  at  large  in  the  wide  field  of  parol  conflict,  and  confided  to  the 
mercies  of  memory.    The  security  intended  by  the  statute  would  thus 
perish  at  the  hands  of  the  Court.     I  have  thus  endeavoured  to  place 
the  use  of  parol  evidence  in  these  matters  on  its  true  ground.    The  gen- 
eral rule  for  excluding  it  in  our  courts  is  based  upon  the  proposition 
that  written  testimony  is  of  a  higher  grade — more  certain,  more  reliable 
—than  parol,  and  that  resort  should  be  had  to  the  highest  evidence  of 
which  a  subject  is  capable,  to  the  exclusion  of  the  inferior  class.     But 
it  is  one  thing  to  admit  evidence,  and  another  to  give  eft'ect  to  it.     If 
a  statute  require  that  a  thing  should  be  in  writing  and  signed,  in  order 
to  its  validity,  it  precludes  the  Court  from  giving  effect  to  parol  testi- 
mony of  that  which  is  required  to  be  so  written  and  signed.     And  if  it 
be  said,  why,  then,  admit  parol  evidence  on  the  subject  at  all?     The 
answer  is,  that  if  the  scope  of  such  evidence  can  be  clearly  known  be- 
fore it  is  heard,  it  should  be  excluded ;    but  then  only  on  the  ground 
of   immateriality,  not  because  it  is  secondary.     In  actual  practice  a 
large  number  of  cases  are  so  presented  that  it  is  impracticable  to  reject 
evidence  as  immaterial  before  the  details  of  it  arc  known.    Little  need 
be  added  as  to  the  operation  of  these  principles  upon  the  present  case. 
The  codicil  was  proved  to  have  been  read  over  to  the  testator  before 
the  execution  thereof,  she  duly  executed  the  same,  and  the    Court  con- 
ceives it  to  be  beyond  its  functions  or  powers  to  substitute  the  oath  of 
the  attorney  who  prepared  it,  fortified  by  his  notes  of  the  testator's  in- 
structions, for  the  written  provisions  contained  in  a  paper  so  executed. 
The  probate  will,  therefore,  be  delivered  out  to  the  plaintiffs  in  its 
present  form. 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1003 

FOSTER  V.  JOLLY. 

(Court  of  Exchequer,  1835.     1  Croinp.,  M.  &  R.  703.) 

Assumpsit  by  the  payee  against  the  maker  of  a  promissory  note  for 
il2.,  payable  fourteen  days  after  date.  Plea,  the  general  issue.  At  the 
trial  before  Gurney,  B.,  at  the  last  assizes  for  the  county  of  Lancaster, 
it  appeared  that  Samuel  Milnes,  the  brother-in-law  of  the  defendant, 
being  agent  for  a  co-operative  society,  and  having  ordered  goods  for 
the  society  from  a  person  named  Walker,  which  had  not  been  paid  for, 
the  plaintifif,  as  the  attorney  of  Walker,  sued  Milnes  for  the  amount. 
Milnes  then  gave  the  names  of  certain  members  of  the  society,  who 
were  also  sued  for  the  debt  and  a  verdict  obtained.  Milnes  also  gave 
a  cognovit,  and,  judgment  being  entered  up,  he  was  taken  on  a  ca.  sa., 
and  while  in  prison,  the  defendant  gave  the  note  in  question  for  the 
amount  of  the  demand  against  Milnes.  The  defendant  now  proposed 
to  show,  that  the  note  was  given  under  an  agreement  that  it  should 
not  be  enforced,  in  case  Walker  should  obtain  a  verdict  in  the  action 
against  the  members  of  the  co-operative  society.  On  the  part  of  tlie 
plaintiff,  it  was  objected  that  parol  evidence  of  the  agreement  was  inad- 
missible to  vary  the  terms  of  the  written  instrument,  and  also  that  the 
agreement  was  that  the  note  should  not  be  put  in  suit,  only  in  case 
Walker  obtained  the  fruits  of  his  verdict.  The  learned  Judge,  however, 
admitted  the  evidence,  giving  the  plaintiff  leave  to  move  to  enter  a  ver- 
dict for  £12.,  if  the  Court  should  be  of  opinion  that  the  evidence  was 
inadmissible.  In  the  course  of  last  term,  Wightman  accordingly  ob- 
tained a  rule,  and — 

Alexander  now  showed  cause.  It  is  not  a  universal  rule  that  parol 
evidence  may  not  be  given  to  contradict  the  terms,  express  or  implied, 
of  a  bill  or  note.  Where  a  bill  purports  to  be  "for  value  received,"  it 
is  competent  to  the  party  sued  upon  it  to  show,  that,  in  fact,  no  value 
has  been  received ;  so,  it  is  every  day's  practice  to  contradict,  by  oral 
evidence,  the  implied  consideration  which  every  bill  or  note  carries 
with  it. 

Lord  Abinger,  C.  B.  At  the  commencement  of  the  argument,  I 
felt  some  doubt,  whether  tliis  might  not  be  regarded  as  a  question  of 
consideration;  but  the  reasoning  of  Mr.  Wightman  has  placed  it  in 
another  light,  and  I  am  of  opinion  that  the  evidence  tendered  by  the 
defendant  went  to  vary  the  contract  appearing  on  the  face  of  the  note. 
It  is  not  a  question  of  consideration,  or  collateral  security.  The  con- 
sideration of  the  instrument  was  not  impeached,  nor  was  it  given  as 
a  collateral  security,  but  the  defence  attempted  to  be  established  was  in 
direct  contradiction  of  the  terms  of  the  note.  The  maker  of  a  note 
payable  on  a  day  certain  cannot  be  allowed  to  say,  'T  only  meant  to 
pay  you  upon  a  contingency,"  that  is  at  variance  with  his  own  written 
contract.     The  case  must  be  governed  by  that  of  Rawson  v.  Walker. 


1004  THE   "PA.ROL   evidence"   RULE  (Cll.  7 

Parke,  B.  At  first  I  had  some  doubts  upon  the  point,  but  I  am 
now  satisfied  that  this  evidence  ought  to  have  been  rejected.  Every 
bill  or  note  contains  two  things — value  either  expressed  or  implied,  and 
a  contract  to  pay  at  a  specified  time.  The  general  rule  is,  that  the 
maker  is  at  liberty  to  contradict  the  value  as  between  himself  and  the 
party  to  whom  he  gave  the  note ;  but  he  is  not  at  liberty  to  contradict 
the  express  contract  to  pay  at  a  specified  time.  Here  tlie  event  upon 
which  the  defendant  contends  that  the  note  was  payable  was  contingent, 
and  might  never  happen,  which  is  a  clear  contradiction  of  the  contract 
contained  in  the  note.  Rawson  v.  Walker  is  in  point ;  Pike  v.  Street 
falls  within  the  other  class  of  cases  in  which  the  consideration  has  been 
contradicted.  There  the  agreement  was,  that  the  plaintiff  should  sue 
the  acceptor  of  the  bill  only,  and  should  not  sue  the  endorser  (the  de- 
fendant). That,  as  between  the  plaintiff  and  the  defendant,  negatived 
any  consideration,  and  so  was  admissible. 

Alderson,  B.  Parol  evidence  is  admissible  to  contradict  the  con- 
sideration or  value  of  a  bill  or  note,  but  not  the  terms  of  the  instru- 
ment itself.  Here  the  note  contains  an  engagement  to  pay  at  a  specified 
time,  namely,  in  fourteen  days,  and  evidence  is  offered  to  show,  that 
this  means  that  the  note  should  be  paid  upon  the  occurrence  of  an  event 
which  may  happen  either  before  or  after  the  expiration  of  fourteen 
days.  Such  evidence  falls  within  the  general  rule,  that  matters  in  writ- 
ing shall  not  be  contradicted  by  parol. 

GuRNEY,  B.,  concurred. 

Rule  absolute. 


PEUGH  V.  DAVIS. 
(Supreme  Court  of  the  United  States,  1S77.    96  U.  S.  332,  24  L.  Ed.  775.) 

Mr.  Justice  Field  ^°  delivered  the  opinion  of  the  court: 
This  is  a  suit  in  equity  to  redeem  certain  property,  consisting  of  two 
squares  of  land  in  the  City  of  Washington,  from  an  alleged  mortgage 
of  the  complainant.  The  facts,  out  of  which  it  arises,  are  briefly  these: 
in  March,  1857,  the  complainant,  Samuel  A.  Peugh,  borrowed  from 
the  defendant,  Henry  S.  Davis,  the  sum  of  $2,000  payable  in  sixty 
days  with  interest  at  the  rate  of  three  and  three-fourths  per  cent,  a 
month,  and  executed  as  security  for  its  payment  a  deed  of  the  two 
squares.  This  deed  was  absolute  in  form,  purporting  to  be  made  up- 
on a  sale  of  the  property  for  the  consideration  of  the  $2,000,  and  con- 
tained a  special  covenant  against  the  acts  of  the  grantor  and  parties 
claiming  under  him.  This  loan  was  paid  at  its  maturity,  and  the  deed 
returned  to  the  grantor. 

In  May   following,  the  complainant  borrowed  another  sum   from 
the  defendant,  amounting  to  $1,500,  payable  in  sixty  days,  with  the 

10  Statement  omitted. 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1005 

same  rate  of  interest,  and  as  security  for  its  payment  redelivered  to 
him  the  same  deed.  Upon  this  sum  the  interest  was  paid  up  to  the 
sixth  of  September  following.  The  principal  not  being  paid,  the  de- 
fendant placed  tlie  deed  on  record  on  the  7th  of  that  month.  In  Jan- 
uary, 1858,  a  party  claiming  the  squares  under  a  tax  title  brought  two 
suits  in  ejectment  for  their  recovery.  The  defendant  thereupon  de- 
manded payment  of  his  loan,  as  he  had  previously  done,  but  without 

success. 

On  the  9th  of  February  following,  the  complainant  obtained  from 
the  defendant  the  further  sum  of  $500,  and  thereupon  executed  to  him 
an  instrument  under  seal,  which  recited  that  he  had  previously  sold  and 
conveyed  to  the  defendant  the  squares  in  question ;  that  the  sale  and 
conveyance  were  made  with  the  assurance  and  promise  of  a  good  and 
indefeasible  title  in  fee  simple;  and  that  the  title  was  now  disputed. 
It  contained  a  general  covenant  warranting  the  title  against  all  par- 
ties, and  a  special  covenant  to  pay  and  refund  to  the  defendant  the 
costs  and  expenses,  including  the  consideration  of  the  deed,  to  which 
he  might  be  subjected  by  reason  of  any  claim  or  litigation  on  account 
of  the  premises.  Accompanying  this  instrument,  and  bearing  the  same 
date,  the  complainant  gave  the  defendant  a  receipt  for  $2,000,  purport- 
ing to  be  in  full  for  the  purchase  of  the  land. 

The  question  presented  for  determination  is  whether  these  instru- 
ments taken  in  connection  with  the  testimony  of  the  parties,  had  the 
effect  of  releasing  the  complainant's  equity  of  redemption.  It  is  in- 
sisted by  him  that  the  $500  advanced  at  the  time  was  an  additional  loan, 
and  that  the  redelivered  deed  was  security  for  the  $2,000,  as  it  had 
previously  been  for  the  $1,500.  It  is  claimed  by  the  defendant  thaf 
this  money  was  paid  for  a  release  of  the  equity  of  redemption  which 
the  complainant  offered  to  sell  for  that  sum,  and  at  the  same  time"  to 
\Varrant  the  title  of  the  property  and  indemnify  the  defendant  against 
loss  from  the  then  pending  litigation. 

It  is  an  established  doctrine  that  a  court  of  equity  will  treat  a  deed, 
absolute  in  form,  as  a  mortgage,  when  it  is  executed  as  security  for 
a  loan  of  money.  That  court  looks  beyond  the  terms  of  the  instru- 
ment to  the  real  transaction ;  and  when  that  is  shown  to  be  one  of  se- 
curity and  not  of  sale,  it  will  give  effect  to  the  actual  contract  of  the 
parties.  As  the  equity,  upon  which  the  court  acts  in  such  cases,  arises 
from  the  real  character  of  the  transaction,  any  evidence,  written  or 
oral,  tending  to  show  this  is  admissible.  The  rule  which  excludes 
parol  testimony  to  contradict  or  vary  a  written  instrument  has  refer- 
ence to  the  language  used  by  the  parties.  That  cannot  be  qualified  or 
varied  from  its  natural  import,  but  must  speak  for  itself.  The  rule 
does  not  forbid  an  inquiry  into  the  object  of  the  parties  in  execut- 
ing and  receiving  the  instrument.  Thus,  it  may  be  shown  that  a  deed 
was  made  to  defraud  creditors,  or  to  give  a  preference,  or  to  secure 
a  loan,  or  for  any  other  object  not  apparent  on  its  face.  The  object 
of  parties  in  such  cases  will  be  considered  by  a  court  of  equity;    it 


1006  THE  "parol  evidexce"  rule  .  (Cll.  7 

constitutes  a  ground  for  the  exercise  of  its  jurisdiction,  which  will 
always  be  asserted  to  prevent  fraud  or  oppression,  and  to  promote 
justice.  Hughes  v.  Edwards,  9  Wheat.  489,  6  L.  Ed.  142;  Russell 
V.  Southard,  12  How.  139,  13  L.  Ed.  927;  Taylor  v.  Luther,  2  Sumn., 
228,  Fed.  Cas.  No.  13,796;   Pierce  v.  Robinson,  13  Cal.  116. 

It  is  also  an  established  doctrine  that  an  equity  of  redemption  is  in- 
separably connected  with  a  mortgage;  that  is  to  say,  so  long  as  the 
instrument  is  one  of  security,  the  borrower  has  in  a  court  of  equity  a 
right  to  redeem  the  property  upon  payment  of  the  loan.  This  right 
cannot  be  waived  or  abandoned  by  any  stipulation  of  the  parties  made 
at  the  time,  even  if  embodied  in  the  mortgage.  This  is  a  doctrine 
from  which  a  court  of  equity  never  deviates.  Its  maintenance  is  deem- 
ed essential  to  the  protection  of  the  debtor,  who,  under  pressing  ne- 
cessities, will  often  submit  to  ruinous  conditions,  expecting  or  hoping 
to  be  able  to  repay  the  loan  at  its  maturity,  and  thus  prevent  the  con- 
ditions from  being  enforced  and  the  property  sacrificed. 

A  subsequent  release  of  the  equity  of  rederription  may,  undoubtedly, 
be  made  to  the  mortgagee.  There  is  nothing  in  the  policy  of  the  law 
which  forbids  tlie  transfer  to  him  of  the  debtor's  interest.  The  trans- 
action will,  however,  be  closely  scrutinized,  so  as  to  prevent  any  oppres- 
sion of  the  debtor.  Especially  is  this  necessary,  as  was  said  on  one 
occasion  by  this  court,  when  the  creditor  has  shown  himself  ready  and 
skillful  to  take  advantage  of  the  necessities  of  the  borrower.  Russell 
V.  Southard,  supra.  Without  citing  the  authorities,  it  may  be  stated 
as  conclusions  from  them,  that  a  release  to  the  mortgagee  will  not  be 
inferred  from  equivocal  circumstances  and  loose  expressions.  It  must 
appear  by  a  writing  importing  in  terms  a  transfer  of  the  mortgagor's 
interest,  or  such  facts  must  be  shown  as  will  operate  to  estop  him  from 
asserting  any  interest  in  the  premises.  The  release  must  also  be  for 
an  adequate  consideration ;  that  is  to  say,  it  must  be  for  a  considera- 
tion which  would  be  deemed  reasonable  if  the  transaction  were  be- 
tween other  parties  dealing  in  similar  property  in  its  vicinity.  Any 
marked  undervaluation  of  the  property  in  the  price  paid  will  vitiate  the 
proceeding. 

If,  now,  we  apply  these  views  to  the  question  before  us,  it  will  not 
be  difficult  of  solution.  It  is  admitted  that  the  deed  of  the  complainant 
was  executed  as  security  for  the  loan  obtained  by  him  from  the  de- 
fendant. It  is,  therefore,  to  be  treated  as  a  mortgage,  as  much  so 
as  if  it  contained  a  condition  that  the  estate  should  revert  to  the  grantor 
upon  payment  of  the  loan.  There  is  no  satisfactory  evidence  that  the 
equity  of  redemption  was  ever  released.  The  testimony  of  the  par- 
ties is  directly  in  conflict,  both  being  equally  positive — the  one,  that 
the  advance  of  $500  in  February,  1858,  was  an  additional  loan;  and 
the  other,  that  it  was  made  in  purchase  of  the  mortgagor's  interest 
in  the  property.  The  testimony  of  the  defendant  with  reference  to 
other  matters  connected  with  the  loan  is,  in  several  essential  par- 
ticulars, successfully  contradicted.     His  denial  of  having  received  the 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1007 

installments  of  interest  prior  to  September,  1857,  and  his  hesitation 
when  paid  checks  for  the  amounts  with  his  indorsement  were  produc- 
ed, show  that  his  recollection  cannot  always  be  trusted. 

Aside  from  the  defective  recollection  of  the  creditor,  there  are  sev- 
eral circumstances  tending  to  supi)ort  the  statement  of  the  mortgagor. 
One  of  them  is,  that  the  value  of  the  property  at  the  time  of  the  al- 
leged release  was  greatly  in  excess  of  the  amount  previously  secured 
with  the  additional  $500.  Several  witnesses  resident  at  the  time  in 
Washington,  dealers  in  real  property,  and  familiar  with  that  in  con- 
troversy and  similar  property  in  its  vicinity,  place  its  value  at  treble 
that  amount.  Some  of  them  place  a  still  higher  estimate  upon  it.  ^It 
is  not,  in  accordance  widi  the  usual  course  of  parties,  when  no  fraud 
is  practiced  upon  them,  and  they  arc  free  in  their  action,  to  surrender 
their  interest  in  property  at  a  price  so  manifestly  inadequate.  The 
tax  title  existed  when  tlie  deed  was  executed,  and  it  was  not  then  con- 
sidered of  any  validity.  The  experienced  searcher  who  examined  the 
records  pronounced  it  worthless,  and  so  it  subsequently  proved. 

Another  circumstance  corroborative  of  the  statement  of  the  mort- 
gagor, is,  that  he  retained  possession  of  the  property  after  the  time 
of  the  alleged  release,  inclosed  it,  and  either  cultivated  it  or  let  it  for 
cultivation,  until  the  inclosure  was  destroyed  by  soldiers  at  the  com- 
mencement of  the  war  in  1861.  Subsequently  he  leased  one  of  the 
squares,  and  the  tenant  erected  a  building  upon  it.  The  defendant 
did  not  enter  into  possessioii  until  1865.  These  acts  of  the  mortgagor 
justify  the  conclusion  that  he  never  supposed  that  his  interest  in  the 
property  was  gone,  whatever  the  mortgagee  may  have  thought.  Par- 
ties do  not  usually  inclose  and  cultivate  property  in  which  they  have 
vo  interest. 

The  instrument  executed  on  the  9th  of  February,  1858,  and  the 
accompanying  receipt,  upon  which  the  defendant  chiefly  relies,  do 
not  change  the  original  character  of  the  transaction.  That  instrument 
contains  only  a  general  v^-arranty  of  the  title  conveyed  by  the  original 
deed,  with  a  special  covenant  to  indemnify  the  grantee  against  loss 
from  the  then  pending  litigation.  It  recites  that  the  deed  was  executed 
upon  a  contract  of  sale  contrary  to  the  admitted  facts  that  it  was  giv- 
en as  security  for  a  loan.  The  receipt  of  the  $2,000.  purporting  to  be 
the  purchase  money  for  the  premises,  is  to  be  construed  with  the  in- 
strument, and  taken  as  having  reference  to  the  consideration  upon, 
which  the  deed  had  been  executed.  That  being  absolute  in  terms,  pur- 
porting on  its  face  to  be  made  upon  a  sale  of  the  propertv,  the  other 
papers  referring  to  it  were  drawn  so  as  to  conform  with  those  terms. 
They  are  no  more  conclusive  of  any  actual  sale  of  the  mortgagor's 
interest  than  the  original  deed.  The  absence  in  the  instrument  of  a 
formal  transfer  of  that  interest  leads  to  the  conclusion  that  no.  such 
transfer  was  intended.  • 

We  are  of  opinion  that  the  plaintiff  never  conveyed  his  interest  in 
the  property  in  controversy  except  as  security  for  the  loan,  and  fJiat 


1008  THE  "parol  evidence"  rule  (Ch.  7 

his  deed  is  a  subsisting  security,  He  has,  therefore,  a  right  to  redeem 
the  property  from  the  mortgage.  In  estimating  the  amount  due  upon 
the  loan,  interest  only  at  the  rate  of  six  per  cent,  per  annum  will  be 
allowed.  The  extortionate  interest  stipulated  was  forbidden  by  stat- 
ute, and  would,  in  a  short  period,  have  devoured  the  whole  estate. 
The  defendant  should  be  charged  with  a  reasonable  sum  for  the  use 
and  occupation  of  the  premises  from  the  time  he  took  possession  in 
1865,  and  allowed  for  the  taxes  paid  and  other  necessary  expenses  in- 
curred by  him. 

The  decree  of  the  Supreme  Court  of  the  District  must  be  reversed 
and  the  cause  remanded  for  further  proceedings,  in  accordance  with 
this  opinion;    and  it  is  so  ordered. 


KENT  V.  AGARD. 

(Supreme  Court  of  Wisconsin,  1SG9.    24  Wis.  37S.) 

Ejectment.  Plaintiff  showed  title  in  one  Cown  in  1848;  mortgage 
from  Cown  to  him  in  1859;  foreclosure  of  the  mortgage,  and  ref- 
eree's deed^to  him,  in  1865.  He  then  introduced  a  deed  of  the  prem- 
ises, absolute  on  its  face,  executed  by  Cown  to  one  Lasley,  June  12, 
1849,  recorded  as  a  deed  on  the  day  of  its  date ;  and  offered  to  show, 
by  the  testimony  of  said  Cown,  that  said  deed  was  given  as  a  se- 
curity for  an  indorsement  by  Lasley  of  Cown's  note ;  that  said  note 
had  been  paid  in  full  by  Cown  before  June,  1854;  that  in  the  month 
last  mentioned  Lasley  died;  and  that  in  June,  1856,  the  administra- 
tors of  Lasley's  estate,  by  an  instrument  under  seal  and  duly  recorded 
in  said  county,  made  by  order  of  the  proper  probate  court,  after  proof 
taken  of  the  facts,  acknowledged  full  satisfaction  of  said  mortgage, 
and  released  and  reconveyed  the  premises  to  said  Cown ;  but  the  evi- 
dence was  rejected;  and,  it  being  admitted  tliat  defendants  were  in 
possession  under  the  heirs  of  Lasley,  the  plaintiff  was  nonsuited. 
From  this  judgment  he  appealed. 

Paine,  J.  The  plaintiff'  should  have  been  allowed  to  show  by  parol 
that  the  absolute  deed  given  by  Cown  to  Lasley  was  intended  as  a  mere 
security,  and  was  consequently  only  a  mortgage.  That  this  may  be 
done  in  some  form  of  action,  is  not  contested.  And  I  can  see  no  rea- 
son why  it  may  not  be  done  in  an  action  to  recover  the  possession  of 
real  estate.  When  the  facts  are  proved,  such  a  deed  is  a  mortgage  only, 
both  at  law  and  in  equity.  The  rights  of  the  mortgagor  and  mort- 
gagee are  precisely  the  same  as  though  the  defeasance  were  contained 
in  the  deed  itself.  The  only  difference  is  in  the  manner  of  proving 
the  defeasance. 

•  It  may  well  be  that  where  the  grantee  in  such  an  absolute  deed  dies, 
his  executors  or  administrators  could  not  conclude  his  heirs  by  admit- 
ting the  deed  to  be  a  mere  mortgage,  and  by  releasing  it  as  such.    The 


Sec.  1)  CONTRADICTING    INSTRUMENTS  1000 

heirs  may  be  entitled  to  a  trial  upon  the  fact,  if  they  choose  to  con- 
test it.  But  that  trial  may  as  well  be  in  an  action  of  ejectment  as 
in  any  other.  If  the  deed  was  in  fact  only  a  mortgage,  then  the  in- 
debtedness secured  by  it  was  properly  paid  to  the  administrators ;  and, 
on  proof  of  the  fact  by  parol,  their  release  takes  effect,  and  shows  that 
the  mortgage  was  extinguished,  and  constituted  no  obstacle  to  the 
plaintiff's  recovery  upon  his  legal  title. 

Indeed,  it  seems  difficult  to  imagine  any  other  action  by  which  the 
plaintiff  could  bring  the  question  to  trial.  If  he  should  bring  an 
equitable  action,  and  ask  to  have  the  deed  declared  a  mortgage,  it 
would  seem  to  be  a  sufficient  answer  to  tell  him  that  if  it  was  a  mort- 
gage in  fact,  he  could  prove  it  in  an  action  at  law,  and  it  would  then 
have  only  the  effect  of  a  mortgage.  The  authorities  cited  by  the  ap- 
pellant show  that  such  evidence  is  admissible  in  both  classes  of  ac- 
tions. 

By  the  Court.  The  judgment  is  reversed,  and  the  cause  remanded 
for  a  new  trial.^^ 


PRENTISS  V.  RUSS. 
(Supreme  Judicial  Court  of  Maine,  1839.    16  Me.  30.) 

Replevin  for  a  chaise.  The  defendant  claimed  the  chaise  under  a 
contract  dated  April  4,  1837,  wherein  the  plaintiff  sells  to  the  de- 
fendant the  chaise  in  question,  and  Russ  sells  to  Prentiss  a  note  given 
by  one  Pinkham  to  him,  and  indorsed,  and  promises,  that  if  Prentiss 
cannot  collect  the  note  of  Pinkham  on  execution,  he  will  pay  him  the 
amount,  and  guaranties  to  Prentiss,  that  execution  can  be  obtained  on 
the  note  for  principal  and  interest.  On  the  trial,  the  plaintiff'  con- 
tended, that  the  contract  of  sale  had  been  rescinded ;  and  to  estab- 
lish this  fact,  offered  evidence  to  prove  that  the  note  was  void  through 
an  entire  failure  of  consideration ;  that  the  defendant  well  knew  the 
fact,  but  when  the  contract  was  made  fraudulently  represented  to  the 
plaintiff,  that  the  note  was  collectable,  and  that  Pinkham  had  no  de- 
fence to  it ;  that  an  action  had  previously  been  brought  upon  it  in  the 
name  of  one  Butler,  which  was  defended  by  Pinkham,  and  discon- 
tinued because  the  defence  would  have  been  successful,  and  the  costs 
paid  by  Russ ;  and  that  these  facts,  though  well  known  to  the  de- 
fendant, were  by  him  concealed  from  the  plaintiff.  The  defendant 
objected  to  this  evidence,  because  that  the  contract  was  in  writing, 
and  parol  evidence  could  not  be  admitted  to  vary,  control,  or  explain 
it ;    and  because  the  plaintiff  could  have  upon  that  contract  all  the 

11  And  so  in  Lamson  v.  Moffat.  61  Wis.  153.  21  N.  W.  62  (1SS4),  where  the 
secnritv  took  the  form  of  a  lease. 

Contra  :    Reilly  v.  Cullen,  159  Mo.  322,  60  S.  W.  126  (1900). 

HlNT.Ev.— 64 


1010  THE  "parol   evidence"   RULE  (Ch.  T 

remedies,  if  any,  to  which  he  was  entitled.  The  judge  overruled  the 
objections,  and  the  testimony  was  admitted.  The  plaintiff,  on  find- 
ing the  truth,  tendered  back  the  note,  notified  the  defendant  that  the 
barfyain  was  rescinded,  and  demanded  the  chaise. 

The  judge  instructed  the  jury,  that  if  at  the  time  of  making  the 
contract,  Pinkham  had  a  valid  defence  to  the  note,  and  if  the  defend- 
ant, knowing  that  fact,  did  nevertheless  fraudulently  represent  to  the 
plaintiff,  that  the  note  was  due  and  collectable  and  that  Pinkham  had 
no  defence  to  it ;  or  if  there  had  been  a  previous  action  brought  upon 
said  note,  with  the  knowdedge  and  for  the  benefit  of  Russ,  which  had 
been  discontinued  on  account  of  the  defence  set  up  by  Pinkham ;  and 
if  the  knowledge  of  that  fact  would  probably  have  dissuaded  the  plain- 
tiff from  parting  wath  his  chaise  on  the  terms  set  forth  in  the  w-ritten 
contract ;  and  if  said  Russ  artfully  and  purposely  concealed  that  fact 
from  the  plaintiff;  then  it  would  be  competent  for  the  plaintiff  to 
rescind  the  contract  and  sale.  On  the  return  of  a  verdict  for  the 
plaintiff,  the  defendant's  counsel  filed  exceptions. 

Shepley,  J.  As  the  contract  between  the  parties  was  reduced  to 
w-riting,  it  is  contended,  that  parol  evidence  should  not  have  been  ad- 
mitted to  prove,  that  other  allegations  were  made,  than  those  contained 
in  it;  and  the  case  of  Richards  v.  Killam  (10  Mass.  239)  is  relied 
upon  as  in  point.  In  that  case  the  assignment  of  the  bond  was  made 
under  seal,  and  the  action  was  assumpsit  complaining  indeed  of  deceit 
and  fraud  but  the  declaration  was  drawn  in  such  a  manner,  that  the 
court  say,  that  the  allegations  "are  insufficient  to  enable  us  to  give  to 
this  action  or  the  evidence  to  support  it,  the  effect  of  an  action  for  a 
deceit  and  fraud,  considered  as  a  tort,  and  not  as  a  breach  of  contract." 
And  it  appears  to  have  been  upon  that  ground,  that  the  evidence  was 
held  to  be  inadmissible.  In  the  case  of  Boyce  v.  Grundy  (3  Pet.  219, 
7  L.  Ed.  655),  it  was  decided,  that  a  party  was  not  precluded  from  in- 
troducing testimony  of  other  allegations  made  at  the  time  than  those 
contained  in  the  written  contract  for  the  purpose  of  proving  fraud. 

Nor  is  one  who  has  in  a  contract  of  sale  taken  a  warranty,  pre- 
cluded from  rescinding  it,  if  he  can  prove,  that  it  was  obtained  from 
him  by  fraud ;  because  the  whole  contract  whatever  may  be  its  char- 
acter is  avoided  by  the  fraud,  and  the  parties  are  left  to  assert  their 
rights  as  they  would,  if  no  contract  had  been  made. 

Fraud  may  be  committed  by  the  suppressio  veri  as  well  as  by  the 
allcgatio  falsi,  if  the  means  of  information  are  not  equally  accessible 
to  both,  but  exclusively  within  the  knowledge  of  one  of  the  parties,  and 
known  to  be  material  to  a  correct  understanding  of  the  subject;  and 
especially  when  one  of  the  parties  relics  upon  the  other  to  communi- 
cate to  him  the  true  state  of  facts  to  enable  him  to  judge  of  the  ex- 
I)ediency  of  the  bargain.  The  instructions  given  required  the  jury  to 
find,  that  the  former  action  was  discontinued  on  account  of  the  de- 
fence set  up,  and  that  this  was  artfully  and  purposely  concealed,  and 
that  it  would  have  had  a  material  infiuence,  had  it  been  known,  upon 


Sec.  1)  CONTRADICTING   INSTUUMENTS  1011 

the  contract.  The  case  of  Hill  v.  Grey,  1  Stark.  Rep.  352,  fully  jus- 
tifies this  part  of  the  charge. 

The  jury  having  found  the  contract  fraudulent,  the  plaintiff  had 
a  right  to  rescind  it,  and  having  elected  to  do  so,  and  performed  what 
was  necessary  on  his  part,  is  entitled  to  recover. 

Exceptions  overruled.^ - 


HOUGHTON  V.  BURDEN. 

(Supreme  Court  of  the  United  States,  1913.    228  U.  S.  161,  33  Sup.  Ct.  491, 

57   L.   Ed.  780.) 

Mr.  Justice  Eurton  ^^  delivered  the  opinion  of  the  court: 

This  is  an  appeal  from  a  decree  determining  a  controversy  arising 
in  a  bankruptcy  proceeding.  The  origin  of  the  matter  was  this : 
Canfield,  the  bankrupt,  was  a  merchant  in  New  York.  He  borrowed 
from  Burden  the  sum  of  $10,000,  and  as  security  assigned  to  him 
certain  book  accounts,  aggregating  the  sum  of  $14,000,  and  agreed  to 
act  as  agent  for  Burden  in  their  collection.  Shortly  afterwards  he 
was  adjudicated  a  bankrupt.  The  receiver  obtained  possession  of  the 
bankrupt's  books  and  held  onto  the  assigned  accounts,  and  proceeded 
to  collect  them  upon  the  claim  that  the  contract  was  usurious  and 
void  under  the  law  of  New  York. 

In  this  situation  Burden  intervened  in  the  Bankruptcy  case  and  filed 
a  petition,  in  which  he  asserted  his  title  to  the  assigned  accounts  and 
to  any  proceeds  collected  by  the  receiver.  The  district  court,  upon  a 
final  hearing,  upheld  the  contention  of  the  bankrupt's  receiver,  now 
the  trustee,  and  dismissed  the  intervening  petition.  This  decree  was 
reversed  by  the  circuit  court  of  appeals,  that  court  holding  that  the 
defense  of  usury  ^*  had  not  been  satisfactorily  made  out.     *     *     * 

The  contract  is  elaborate  and  too  lengthy  to  be  set  out  in  full.  In 
substance  it  provided  for  a  loan  of  $10,000  at  6  per  cent  upon  as- 
signed accounts  against  reputable  merchants,  the  loan  not  to  exceed 
7S  per  cent  of  the  face  value  of  the  accounts.  Canfield  agreed  to  act 
as  Burden's  agent  in  collecting,  and  to  guarantee  the  payment  of  each 
account  so  assigned.     The  contract  also  provided  that  after  the  pay- 

12  That  the  rnlo  mav  be  otherwise  in  the  case  of  specialties,  see  George  v. 
Tate,  102  U.  S.  ."(54,  2G  L.  Ed.  2.32  (18S0). 

For  a  discussion  of  the  fraud  cases,  see  Adams  v.  Oillii:,  199  N.  Y.  314,  92 
N.  E.  670,  32  L.  K.  A.  (N.  S.)  127,  20  Ann.  Cas.  910  (1910). 

Generally  it  niav  be  shown  that  the  si^nins  of  what  purports  to  be  n  writ- 
ten contrart  was  "induced  bv  misrepresontation  as  to  its  contents.  Whipple 
V.  Brown  Bros.  Co.,  225  N.  Y.  237,  121  N.  E.  74S  (1919). 

13  Part  of  opinion  omitted. 

14  The  lawful  rate  of  intorrst  in  New  Y(irk  is  0  per  cent.  By  section  373  of 
the  General  Business  Law  of  Now  York  it  is  provided- 

"All  *  *  *  contracts  whatsoever  •  ♦  ♦  whereupon  or  whereby  there 
shall  be  reserved  or  taken  or  secured,  or  agreed  to  he  reserved  or  taken,  any 
greater  sum,  or  greater  value,  for  the  loan  or  forbearance  of  any  money, 
goods  or  other  things  in  action,  than  as  above  prescribed,  shall  be  void." 


1012  THE  "parol,  evidence"  rule  (Ch.  7 

ment  of  the  money  borrowed  and  interest,  and  costs  and  expense  of 
collection,  and  the  compensation  to  Burden  for  his  services  as  re- 
quired by  the  bond,  the  remaining  accounts  should  be  reassigned  to 
Canfield.  The  clause  in  regard  to  this  compensation  gives  rise  to  the 
claim  of  usury.     It  was  in  these  words : 

"The  party  of  the  second  part  shall  be  entitled  to  compensation  for 
the  labor  and  services  to  be  performed,  and  time  to  be  expended,  by 
him  in  making  the  examinations  required  by  the  terms  of  the  bond 
executed  by  the  Fidelity  &  Casualty  Company  of  New  York,  and  de- 
livered simultaneously  herewith,  which  compensation  is  to  be  meas- 
ured by  computing  1  per  cent  per  month  upon  whatever  part  of  the 
advance  shall  remain  uncollected  on  the  said  accounts,  and  for  the 
period  that  the  same  shall  remain  uncollected." 

The  indemnity  bond,  styled  an  "assigned-accounts  bond,"  is  in  the 
usual  form,  and  is  undoubtedly  a  device  resorted  to,  to  enable  mer- 
chants to  use  book  accounts  as  collateral  for  money  advanced  or 
loaned.     *     *    * 

The  contention  is  that  this  provision  for  compensating  Burden  for 
the  service  required  by  the  indemnity  bond  was  a  mere  cover  for  un- 
lawful interest,  and  that  it  waS  never  intended  or  expected  that  any 
such  service  would  be  given.  This  is  sought  to  be  shown  by  alleged 
oral  declarations  of  Canfield.  Thus,  Canfield  says  that  when  he  was 
about  to  sign  the  contract,  he  asked  Burden  what  the  clause  about 
services  to  be  rendered  meant,  and  that  he  replied,  "that  that  was 
simply  to  get  around  the  usury  law ;  there  were  no  services  to  be 
rendered  at  all."     *     *     * 

All  of  this  evidence  was  excepted  to  as  contradicting  the  written 
agreement  and  was  admitted  over  objection.  Where  the  inquiry  is 
whether  the  contract  is  one  forbidden  by  law,  it  is  open  to  evidence 
dehors  the  agreement  to  show  that,  though  legal  upon  its  face,^*  it 
was  in  fact  an  illegal  agreement.  OtTierwise  the  very  purpose  of  the 
law  in  forbidding  the  taking  of  usury  under  any  cover  or  pretext 
would  be  defeated.  The  defense  is  one  which  the  debtor  may  make 
even  though  it  contradicts  the  agreement.  Scott  v.  Lloyd,  9  Pet.  418, 
9  L.  Ed.  178. 

15  Marshall,  C.  J.,  in  Scott  v.  Lloyd,  9  Pet.  418,  9  L.  Ed.  178  (1835):  "It  has 
been  settled,  that  to  constitute  the  offence,  there  must  be  a  loan,  upon  which 
more  than  six  per  cent  interest  i.s  to  be  received ;  and  it  is  also  settled,  that 
where  the  contract  is  in  truth  for  the  borrowing  and  lending  of  money,  no 
form  which  can  be  given  to  it  will  free  it  from  the  taint  of  usury,  if  more 
than  legal  interest  be  secured.  The  ingenuity  of  lenders  has  devised  juany 
contrivances,  by  which,  under  forms  .sanctioned  l)y  law,  the  statute  may  lie 
evaded.  Among  the  earliest  and  most  common  of  these  is  the  purchase  of 
annuities,  secured  upon  real  estate  or  otherwise.  ♦  •  ♦  Yet  it  is  apparent, 
that  if  giving  this  form  to  the  contract  will  afford  a  cover  whi<h  conceals  it 
from  judicial  investigation,  the  statute  would  l)ecome  a  dead  lott(>r.  Courts, 
therefore,  perceived  tiie  necessity  of  disregarding  the  form,  and  examining 
into  the  real  nature  of  the  transaction.  If  that  be  in  fact  a  loan,  no  shift  or 
device  will  protect  It." 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1013 

It  has  been  sugj^ested  that  there  is  a  distinction  between  the  ad- 
missibihty  of  evidence  dehors  tiie  contract  which  is  intended  to  show 
the  whole  and  true  nature  of  the  transaction,  and  mere  declarations 
made  by  the  lender  in  the  nature  of  a  confession  that  the  agreement 
for  services  required  to  maintain  the  obligation  of  the  indemnity  bond 
was  a  mere  scheme  to  cover  usury,  and  that  no  service  was  to  be  ren- 
dered. We  notice  the  distinction  and  pass  it  by,  for  the  reason  that, 
assuming  the  evidence  to  be  competent,  it  is  not  so  convincing  as  to 
justify  a  disagreement  with  the  view  of  the  circuit  court  of  appeals 
that  the  defense  of  usury  has  not  been  satisfactorily  made  out.    *    *    * 

Decree  affirmed. 

Mr.  Justice  Pitnf,y  dissents. 


THE  KING  V.  INHABITANTS  OF  CHEADLE. 
(Court  of  King's  Bench,  1832.    3  Barn.  &  Adol.  833.) 

On  appeal  against  an  order  of  two  justices,  whereby  William  Smith 
and  his  wife  and  children,  were  removed  from  the  parish  of  Cheadle, 
in  the  county  of  Stafford,  to  the  township  of  Scropton  and  Foston, 
in  the  county  of  Derby,  the  sessions  quashed  the  order,  subject  to  the 
opinion  of  this  Court  on  the  following  case : 

The  settlement  of  the  pauper,  W.  Smith,  at  the  time  of  his  mar- 
riage in  1808,  was  in  the  appellant  township  of  Scropton  and  Foston. 
The  appellants,  in  order  to  establish  a  subsequent  settlement  by  estate 
in  Cheadle,  [proved  a  conveyance  to  him  of  certain  property  in  which 
the  purchase  price  was  stated  to  be  £2.  2s.]. 

The  evidence  of  the  pauper,  and  also  of  one  Jeremiah  Robinson 
(who  was  not  a  party  to  the  deed),  was  then  tendered  on  the  part  of 
the  appellants,  and  objected  to  on  the  other  side,  but  received  by  the 
Court,  to  show  that  the  consideration  stated  in  the  deed  was  not  paid, 
nor  intended  by  the  parties  to  be  paid;  and  that  the  deed  was  only 
made  for  the  purpose  of  confirming  the  pauper's  title  to  the  plot  of 
land  which  had  been  allotted  to  him  shortly  after  his  marriage,  un- 
der the  parol  arrangement  between  John  James  and  his  children.  The 
sessions  found  that  the  consideration  mentioned  in  the  deed  was  not 
paid,  nor  intended  to  be  paid.  The  questions  for  tlie  opinion  of  this 
Court,  were,  1st,  whether  the  last-mentioned  evidence  was  properly 
admitted?  and  if  it  was,  then,  2dly,  whether,  on  all  the  facts  of  the 
case,  the  pauper  acquired  a  settlement  in  the  respondent  parish? 

Lord  TenterdEN,  C.  J.  I  think  a  settlement  was  gained  in  Cheadle. 
The  appellants  proved  that  John  James,  the  father  of  the  pauper's 
wife,  being  seised  in  fee  of  a  house  and  land  in  Cheadle,  and  having 
several  children,  it  was  agreed  among  them  in  his  lifetime  that  a  part 
of  the  land  .should  be  allotted  to  each  of  them.     One  of  the  cliildren 


1014  THE  "parol  evidence"  rule  (Ch.  7 

married  the  pauper  in  1808,  and,  soon  after  in  pursuance  of  the  agree- 
ment, a  portion  of  the  land  was  staked  out,  upon  which  the  pauper  buih 
a  house,  and  after  residing  there  -seventeen  years,  he  sold  the  house  for 
i60.  There  having  been  twenty  years'  possession,  the  case  thus  far 
showed  such  an  estate  as  gave  the  pauper  a  settlement.  To  avoid 
this  settlement  by  estate,  the  parish-  officers  of  Cheadle  proposed  to 
show,  by  the  deed  of  1815,  that  the  pauper's  title  to  it  accrued  by  a  pur- 
chase for  a  money  consideration  not  amounting  to  £30.  That  deed  re- 
cited, that  Smith  had  agreed  to  purchase  the  land  for  the  considera- 
tion of  two  guineas.  The  other  parish  alleged  in  answer  that  the  re- 
cital was  not  true,  and  that  the  real  consideration  was  not  a  money 
consideration ;  and  they  gave  evidence  that  the  two  guineas  were  not 
paid,  or  intended  to  be  paid,  and  that  the  only  object  of  the  parties  in 
executing  this  deed  was  to  confirm  the  pauper's  title.  The  objection  is, 
that  evidence  to  contradict  the  statement  of  the  consideration  in  the 
deed  ought  not  to  have  been  admitted.  Now,  the  parties  to  the  deed 
might  be  estopped  by  it  from  saying  that  this  was  not  a  purchase  for 
a  money  consideration;  but  the  parish  officers,  who  are  strangers  to 
it,  are  not.  If  that  were  otherwise,  the  greatest  inconvenience  and  in- 
justice might  arise,  because  a  settlement  might  be  acquired  or  not 
according  to  the  language  used  by  parties  in  an  instrument  of  this 
nature.  The  evidence  was,  in  my  opinion,  properly  received,  as  show- 
ing, not  that  the  deed  was  void,  but  that  this  was  not  a  purchase  for  a 
money  consideration. 

LiTTLEDALE,  J.,  concurred. 

Parke,  J.  It  is  quite  clear,  that  although  the  parties  to  this  deed 
were  estopped  by  it,  strangers  were  not,  and  consequently  the  parish 
officers  might  show  the  real  nature  of  the  transaction.  If  this  were 
not  so,  parishes  might  be  burthencd  with  settlements  for  which  there 
was  no  colour.  It  is  clear  that  a  settlement  was  gained  in  this  case  by 
an  estate  voluntarily  conveyed  to  the  pauper. 

Taunton,  J.,  concurred. 

Order  confirmed.^" 


BOWES  V.  FOSTER. 

(Court  of  Exchequer,  1858.    2  Hurl.  &  X.  770.) 

Trover.     Pleas :    Not  guilty,  and  not  possessed.     Issues,  thereon. 

At  the  trial  before  the  Assessor  of  the  Court  of  Passage  at  Liver- 
pool, the  facts,  according  to  the  plaintiff's  evidence,  were,  that  in  June 
last,  being  in  difficulties,  he  was  desirous  of  disposing  of  his  stock  in 

1"  See  same  thinj,'  allowed  in  Rox  v.  Inhabitants  of  Scaniiuondcii,  .*{  I).  &  K. 
474  (1780),  on  llic  broad  Kronnd  tliat  a  party  might  prove  other  considerations 
than  tliose  expressed  in  tlie  deed. 


Sec.  1)  CONTRADICTING  INSTRUMENTS  1015 

trade  and  business  of  a  chemist ;  but  fearing  that  some  of  his  creditors 
would  issue  execution  against  his  goods,  he  agreed  with  the  defendant, 
who  was  also  a  chemist,  and  a  creditor  of  the  plaintiff  for  £40.,  that 
there  should  be  a  pretended  sale  of  them  to  him.  For  this  purpose 
an  invoice  of  the  goods  was  made  out  to  the  defendant,  and  a  re- 
ceipt was  given  to  him  by  the  plaintiff  for  the  sura  of  £40.,  which 
was  therein  stated  to  be  the  purchase-money  of  the  goods.  The  plain- 
tiff then  delivered  possession  to  the  defendant  and  left  the  neighbour- 
hood, and  an  assistant  of  the  defendant  took  charge  of  the  shop  and 
carried  on  the  business.  The  defendant  afterwards  sent  the  goods 
to  an  auctioneer  for  sale,  and  the  plaintiff,  having  heard  of  it,  gave  no- 
tice to  the  auctioneer  that  they  were  his  property.  The  goods  were 
sold,  and  the  plaintiff  brought  an  action  against  the  auctioneer,  who 
obtained  an  interpleader  order,  under  which  he  paid  the  proceeds 
into  Court,  and  the  defendant  was  admitted  to  defend  the  action.  At 
the  conclusion  of  the  plaintiff's  case,  it  was  submitted  by  the  de- 
fendant's counsel  that  he  ought  to  be  nonsuited,  inasmuch  as  it  was 
not  competent  for  him  to  allege  that  the  agreement  under  which  he 
had  given  the  invoice  and  receipt,  and  had  delivered  possession  of  the 
goods,  was  intended  as  between  him  and  the  defendant  as  a  fraud 
on  other  creditors.  The  Assessor  overruled  the  objection,  and  the 
defendant's  counsel  then  adduced  evidence  to  prove  that  the  goods 
were  delivered  to  the  defendant  in  satisfaction  of  the  £40.  which 
the  plaintiff'  owed  him.  The  Assessor  left  it  to  the  jury  to  say  whether 
the  transaction  was  a  bona  fide  sale,  or  a  mere  colourable  one  for 
the  purpose  of  protecting  the  goods  against  any  creditor  who  might 
issue  execution :  that  in  the  former  case  they  should  find  for  the  de- 
fendant, and  in  the  latter  for  the  plaintiff.  The  jury  found  a  verdict 
for  the  plaintiff,  and  leave  was  reserved  to  the  defendant  to  move  to 
enter  a  nonsuit. 

Brett,  in  the  present  term,  obtained  a  rule  nisi  accordingly. 

Pollock,  C.  B.^^  I  am  of  opinion  that  the  rule  ought  to  be  dis- 
charged. A  large  portion  of  the  argument  in  support  of  it  appears  to 
me  to  arise  from  not  distinguishing  between  a  fact  and  the  evidence 
of  a  fact.  Where  goods  are  professed  to  be  transferred  by  deed,  the 
deed  actually  transfers  the  property;  and,  the  moment  the  deed  is 
executed,  by  law  the  property  ceases  to  be  the  property  of  the  per- 
son who  has  executed  the  deed,  and  becomes  the  property  of  the  person 
in  whose  favor  it  has  been  executed.  That  is  not  so  with  a  fictitious 
invoice,  or  a  receipt  for  money  which  has  never  been  paid.  The  doc- 
uments, no  doubt,  are  evidence  of  a  fact,  but  the  question  is  whether 
they  may  not  be  rebutted  by  evidence  that  there  was  no  sale  and  no 
payment.     I  consider  that  so  much  of  the  argument  for  the  defendant 

IT  Part  of  opinions  of  Pollock,  C.  B.,  and  Cbiinnoll,  l^.,  and  opinions  of 
Martin  and  Watson,  BB.,  omitted. 


1016  THE  "parol  evidexce"  rule  (Ch.  7 

as  .is  founded  on  any  supposed  analogy  to  deeds,  altogether  fails. 
Then  is  there  any  established  rule  of  evidence  or  practice  in  the  ad- 
ministration of  justice,  that,  where  parol  documents  are  produced 
leading  to  one  result,  it  is  not  competent  to  contradict  them  and  show 
that  the  real  truth  is  not  that  which  the  documents  import?  I  think 
that  there  is  no  such  rule.  With  respect  to  a  receipt  not  under  seal, 
there  is  no  doubt  that  evidence  is  admissible  to  contradict  it,  and  show 
that  no  money  passed.  In  the  course  of  the  argument,  Mr.  Brett 
suggested  the  case  of  a  person  who  gives  a  receipt  to  another,  to 
enable  him  to  show  that  no  claim  can  be  made  upon  him  by  the  per- 
son giving  the  receipt,  and  in  that  way  obtains  money.  Such  a  re- 
ceipt would  no  doubt  have  all  the  effect  it  was  intended  to  have:  as 
between  the  person  to  whom  it  was  given  and  the  person  to  whom  it 
was  shown  it  would  be  conclusive  evidence  of  payment  though  no 
money  was  paid ;  but  as  between  the  former  and  the  person  giving 
the  receipt,  it  might  be  shown  that  no  money  passed.  What  fell  from 
Lord  Ellenborough  in  the  case  of  Alner  v.  George,  1  Camp.  392,  viz., 
that  a  receipt  in  full,  where  the  person  who  gave  it  was.  under  no 
misapprehension  and  can  complain  of  no  fraud  or  imposition,  is  bind- 
ing upon  him,"  means,  where  the  receipt  in  full  is  given  as  and  for 
a  real  receipt  and  discharge.  I  can  well  understand  that  there  may  be 
cases  where  the  transaction  is  of  such  a  fraudulent  character  that  a 
Court  of  Justice  will  not  inquire  about  it;  for  instance,  if  two  per- 
sons have  committed  a  robbery  and  proceed  to  divide  the  stolen  goods, 
neither  a  Court  of  law  or  equity  would  interfere  or  recognise  any 
agreement  as  to  what  share  each  was  to  have  in  such  a  transaction. 
And  I  can  well  understand  that  there  may  be  cases  falling  short  of 
felony  where  a  similar  doctrine  would  hold  on  the  ground  that  the 
Court  will  not  entertain  a  transaction  which  makes  it  necessary  for 
them  to  recognise  a  crime.  It  may  be,  that  the  entire  doctrine  v>'hich 
Mr.  Brett  contends  for  would  be  apphcable  where  it  is  necessary  for 
a  Court  of  law  to  tolerate,  and  as  it  were  encourage,  a  matter  which  in 
itself  constitutes  a  criminal  offence.  But  I  am  by  no  means  prepared 
to  carry  that  doctrine  to  every  possible  transaction  where  imposition 
is  practised  by  the  parties.     *     *     * 

Channell,  B.  *  *  *  In  order  to  divest  the  property  from  the 
plaintiff,  it  was  necessary  for  the  defendant  to  show  either  a  transfer 
by  gift  or  by  sale.  A  mere  delivery  of  the  goods  would  not  prevent 
the  person  delivering  them  from  explaining  in  what  sense  that  took 
place,  so  as  to  show  that  there  was  no  intention  of  vesting  the  prop- 
erty. The  invoice,  receipt,  and  delivery  of  possession  were  only  evi- 
dence of  a  sale,  though  no  doubt  they  were  matters  from  which  a  sale 
might  be  inferred,  and  which,  unexplained,  would  call  upon  the  jury 
to  find  a  sale.  Then  it  is  said  that  when  a  party  is  setting  up,  not  an 
act  done  and  complete  as  in  the  case  of  a  deed,  but  evidence  of  a  fact, 
a  part  of  the  transaction  only  can  be  looked  at  and  not  the  whole,  and 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1017 

that  all  that  part  must  be  excluded  which  shows  that  the  parties  may 
have  been  guilty  of  fraud.  In  my  opinion  that  is  not  a  correct 
view.     *     *     * 


Rule  discharged.^* 


GRIERSON  V.  MASON. 
(Court  of  Appeals  of  New  York,  1875.    60  N.  T.  394.) 

Miller,  J.  Upon  the  trial  of  this  case  there  was  evidence  to  show 
that  on  the  1st  of  May,  1870,  the  defendant  entered  into  the  employ- 
ment of  John  S.  Cropper  &  Co.,  and  upon  their  sale  and  assignment  of 
the  business,  continued  in  the  plaintiff's  employment  by  virtue  of  a 
verbal  agreement  that  he  was  to  receive  a  certain  commission  upon 
the  sale  of  goods,  which  should  amount  to  at  least  the  sum  of  $1,500 
a  year. 

To  contradict  this  evidence  a  written  agreement  ^®  was  introduced  by 
the  plaintiff,  bearing  date  April  30,  1870,  signed  by  the  firm  of  J.  S. 
Cropper  &  Co.,  to  the  effect  that  the  defendant  was  to  receive  a  com- 
mission of  five  per  cent,  upon  the  sales  made.  It  also  appeared  that  the 
defendant  drew  the  instrument,  that  it  was  executed  by  the  firm  with- 
in three  or  four  months  after  the  commencement  of  his  employment, 
and  as  he  testifies,  it  was  made,  and  the  referee  so  finds,  with  suffi- 
cient evidence  to  sustain  the  finding,  to  induce  one  Woods  to  advance 
money  upon  the  goods,  and  that  it  was  given  to  Woods  and  kept  by 
him.  The  question  is,  under  the  foregoing  facts,  whether  parol  proof 
of  the  purpose  for  which  the  instrument  was  executed  was  competent, 
and  the  referee  erred  in  giving  effect  to  it  as  he  did  in  his  report. 

The  object  of  the  testimony  was  to  show  that  the  instrument  was 
executed  for  a  specific  purpose,  and  that  purpose  being  accomplished, 
was  of  no  eft'ect  in  changing  the  contract  previously  made  with  the  de- 
fendant. I  think  that  it  was  competent  evidence  for  this  purpose.  The 
defendant  had  made  out  a  contract.  The  plaintiff  proved  an  instrument 
which  altered  the  contract,  and  the  defendant  had  a  right  to  prove  that 
the  instrument  introduced  was  not  intended  as  an  alteration  of  the 
contract,  but  with  a  view  of  accomplishing  a  particular  purpose.  Such 
evidence  was  not  given  to  change  the  written  contract  by  parol,  but  to 
establish  that  such  contract  had  no  force,  efiicacy  or  effect.    That  it  was 

18  See  Filkins  v.  Whyland,  24  N.  Y.  338  (1SG2). 

i!>The  asrieinent  in  question  was  as  follows: 

"This  ncirceniont.  made  this  the  ."^Oth  day  of  April,  1S70.  1>otweon  Jolm  S. 
Cropper  &  Co.,  of  Newark.  New  Jersey,  and  Thomas  F.  Mason,  of  r.ronUlyn, 
New  York,  the  said  .Tohn  S.  Cropper  &  Co.  auree  to  give  the  said  Thonuis  F. 
Mason  the  sole  and  exclusive  right  to  sell  all  the  goods  manufactured  hy  them 
at  such  prices  and  on  .such  terms  as  they  may  from  time  to  time  determine, 
and  the  said  Thomas  F.  Mason  is  to  receive  as  commission  five  (.")  i>er  cent 
commission  on  buch,  and  make  returns  on  the  flrst  nf  each  month  of  all  sales. 

"John  S.  Cropper  &  Co." 


1018  THE  "parol  evidence"  rule  Ch.  7) 

not  intended  to  be  a  contract,  but  merely  a  writing  to  be  used  in  induc- 
ing Woods  to  make  advancements  upon  the  goods.  This  is  in  avoid- 
ance of  the  instrument  and  not  to  change  it,  and  I  do  not  see  why  the 
testimony  was  not  as  competent  in  this  case  as  it  would  be  to  show 
that  a  written  instrument  was  obtained  fraudulently,  by  duress,  or  in  an 
improper  manner.  Such  evidence  does  not  come  within  the  ordinary 
rule  of  introducing  parol  evidence  to  contradict  written  testimony,  but 
tends  to  explain  the  circumstances  under  which  such  an  instrument 
was  executed  and  delivered,  or  to  show  that  it  was  canceled  or  sur- 
rendered. It  would,  I  think,  have  been  proper  to  show  that  the  in- 
strument was  given  up,  and  equally  so  that  it  did  not  constitute  the 
entire  contract,  as  it  was  only  for  a  special  purpose.  There  are  nu- 
merous cases  in  the  books  where  the  design  and  object  of  an  instru- 
ment embodying  the  main  portion  of  an  oral  agreement  may  be  shown, 
and  it  is  held  that  a  receipt  for  goods  changes  the  obligation  of  a  pre- 
ceding parol  agreement.  Blossom  v.  Griffin,  13  N.  Y.  569,  67  Am. 
Dec.  75.  It  is  also  held  that  the  purpose  for  which  a  writing  was 
executed  may  be  proved  by  parol  when  not  inconsistent  with  its  terms. 
See  Seymour  v.  Cowing,  *40  N.  Y.  532.  This  case  is  far  stronger  than 
any  cited,  because  the  evidence  was  a  perfect  answer  to  the  writing, 
and  showed  it  had  no  application  to  the  agreement. 

There  was  no  error  on  the  trial,  and  the  judgment  should  be  af- 
firmed, with  costs. 

All  concur. 

Judgment  affirmed.^" 


WILLIAMS  V.  JONES. 

(Court  of  King's  Bench,  1826.     5  Barn.  &  C.  108.) 

Assumpsit  upon  an  agreement,  dated  the  lllh  of  November,  1822, 
whereby  plaintiff,  "in  consideration  of  £250.  paid  by  the  defendant,  and 
of  £100.  to  be  paid  by  defendant  within  two  years  from  the  date  there- 
of, agreed  to  take  T.  Jones,  the  defendant's  son,  into  partnership  with 
him,  as  attornies  and  solicitors,  and  to  give  him  a  moiety  of  the  profits 
of  the  partnership,  and  of  the  profits  arising  from  the  hundred  court 
of  Werrall,  of  which  the  plaintiff  was  lord,  and  a  moiety  of  the  royal- 
ties." The  partnership  to  continue  for  ten  years.  Breach,  non-payment 
of  the  f  100.  Plea,  non-assumpsit.  At  the  trial  before  Warren,  C.  J., 
of  Chester,  at  the  Spring  assizes,  1825,  for  that  city,  the  plaintii'f  prov- 
ed the  agreement  as  set  out  in  the  declaration,  but  it  ai)peared  by  the 
cross  examination  of  his  witnesses  that  the  defendant's  son  was  not  ad- 
mitted an  attorney  until  April,  1823.  For  the  defendant  it  was  con- 
tended, that  the  agreement  was  illegal,  as  constituting  a  partnership 

20  And  so  in  Cofrinun  v.  .Malone,  98  Neb.  810,  151  N.  W.  72G,  L.  K.  A.  101715, 
258  (1015),  annotated. 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1010 

between  an  attorney  and  a  person  who  had  not  at  that  time  been  admit- 
ted. For  the  plaintiff  evidence  was  offered  that  the  agreement  was  not 
put  in  force  before  the  admission  of  the  defendant's  son.  The  learned 
Judge  thought  the  evidence  inadmissible,  and  directed  a  nonsuit.  In 
]£aster  term  a  rule  nisi  for  a  new  trial  was  granted,  and  now 

Cross,  Serjt.,  was  called  upon  to  support  it.  No  time  l>eing  fixed  for 
the  commencement  of  the  partnership,  it  was  open  to  the  jilaintiff  to 
give  parol  evidence  upon  that  point. 

Bavlky,  J.  Where  a  written  contract  has  been  entered  into,  the 
court  must  look  to  that  in  order  to  ascertain  the  meaning  of  the  par- 
ties; and  we  are  not  at  liberty  to  admit  the  introduction  of  parol  evi- 
dence to  show  that  the  agreement  was  in  reality  different  from  that 
which  it  purports  to  be.  The  declaration  in  this  case  describes  the 
contract  as  forming  a  partnership  to  commence  in  prsesenti,  and  as 
made  between  parties,  then  attornies,  and  the  agreement  corresponds 
with  the  description  given  in  the  declaration.  It  is  described  as  an 
absolute  contract,  but  it  is  now  contended  that  it  was  conditional,  to 
commence  in  futuro,  if  T.  Jones  should  be  admitted  an  attorney.  But 
it  is  impossible  to  put  such  a  construction  upon  it.  Here,  then,  there 
was  a  bargain  giving  a  present  share  of  the  profits  of  an  attorney's 
business  to  a  person  not  admitted ;  that  was  illegal,  according  to  the 
22  G.  2,  c.  46,  s.  11. ;  and  even  if  the  evidence  had  been  admissible,  to 
show^  that  the  agreement  was  to  take  effect  in  futuro,  the  agreement 
as  proved  would  not  correspond  with  the  description  of  it  in  the  decla- 
ration, and  on  that  ground  tlie  nonsuit  would  be  right.  This  rule  must, 
therefore,  be  discharged. 

HoLROYD,  J.  I  am  of  opinion  that  the  nonsuit  in  this  case  was 
right.  Whatever  may  have  been  the  intent  of  the  parties,  which  I  col- 
lect to  have  been  that  the  instrument  should  take  effect  immediately,  at 
all  events  the  law  gives  it  that  eft'ect,  no  time  for  its  commencement  be- 
ing mentioned  in  the  instrument.  Parol  evidence  was  properly  admit- 
ted to  show  that  the  agreement  was  illegal,  but  not  for  the  purpose  of 
varying  the  contract,  by  adding  to  or  diminishing  from  it.  It  is  con- 
tended for  the  plaintiff  that  evidence  should  have  been  admitted,  which 
certainly  would  have  shown  the  contract  not  to  be  illegal,  but  would  at 
the  same  time  have  shown  it  to  be  different  from  the  legal  import  of 
the  instrument  declared  upon.  If  the  evidence  had  merely  gone  to  re- 
but the  illegality,  I  should  have  thought  it  admissible ;  but  it  went  fur- 
ther, and  then  two  objections  arose  to  it;  first,  it  went  to  show  that 
an  agreement  apparently  absolute  was  really  conditional ;  secondly,  its 
effect  was  to  add  by  parol  to  an  agreement,  which  according  to  Boydell 
v.  Drummond,  11  East,  142,  could  not  be  valid,  unless  in  writing,  inas- 
much as  it  was  not  to  be  performed  within  a  year  from  the  making 
of  it. 

LittlEdalE,  J.,  concurred. 

Rule  discharged.  • 


1020  THE  "parol  evidence"  rule  Ch.  7; 

WILSON  V.  POWERS  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  ISSl.     131  Mass.  539.) 

Contract  upon  a  joint  and  several  promissory  note  for  $5,000,  dat- 
ed February  2,  1874,  payable  to  the  plaintiff  or  order,  "with  inter- 
est at  the  rate  of  twelve  per  cent,  per  annum,  payable  semiannually  in 
advance,"  and  signed  by  Philip  S.  Walsh  as  principal  and  by  the  de- 
fendants as  sureties.  The  defence  relied  upon  was  that  the  defendants 
had  been  discharged  from  their  liability  as  sureties  by  an  instrument, 
dated  July  5,  1877,  and  signed  by  the  plaintiff',  the  material  part  of 
which  was  as  follows :  "And  I  hereby  agree  to  continue  or  extend  the 
time  of  final  payment  for  three  additional  years,  or  until  February  in 
the  year  of  our  Lord  1880.  The  conditions  as  expressed  in  said  mort- 
gage deed  to  be  complied  with.  That  is  also  required  that  the  said 
Walsh  shall  pay  when  requested  all  interest  now  due  and  continue 
to  pay  at  the  rate  of  seven  and  three  tenths  per  cent,  interest  semian- 
nual after  February,  1877,  and  an  addition  to  be  applied  to  the  principal 
of  4.7  per  cent   as  aforesaid." 

After  the  former  decision,  reported  130  Alass.  127,  the-  case  was 
tried  in  the  Superior  Court  before  Allen,  J.  There  was  evidence  tend- 
ing to  show  that  the  instrument  was  under  seal  when  delivered.  The 
plaintiff  contended  that  the  instrument  was  delivered  to  Walsh  as  a 
proposal  merely,  and  that  it  was  not  to  take  effect  as  a  contract  until 
assented  to  by  the  sureties.  The  jury  returned  a  verdict  for  the  plain- 
tiff, and  found  specially  that  the  instrument -was  not  delivered  as  a 
completed  agreement ;  and  the  defendants  alleged  exceptions  to  the  ad- 
mission of  certain  evidence,  bearing  upon  this  issue,  which  appears  in 
the  opinion. 

DevIvNS,  J.  At  the  trial,  the  defendants  relied  upon  a  certain  in- 
strument as  discharging  them  from  their  obligation  as  sureties,  by 
which  Wilson,  the  promisee  of  the  note,  as  it  was  contended,  agreed  to 
extend  the  time  of  payment  of  the  note  to  the  principal  defendant  with- 
out the  assent  of  the  sureties.  It  was  contended  by  the  plaintiff,  that 
the  instrument  signed  by  Wilson  was  delivered  by  him  as  a  proposi- 
tion merely,  and  upon  the  agreement  that  it  should  become  binding  only 
upon  the  assent  of  the  sureties  thereto.  The  manual  delivery  of  an  in- 
strument may  always  be  proved  to  have  been  on  a  condition  which  has 
not  been  fulfilled  in  order  to  avoid  its  effect.  This  is  not  to  show  any 
modification  or  alteration  of  the  written  agreement,  but  that  it  never 
became  operative,  and  that  its  obligation  never  commenced.  Whitaker 
V.  Salisbury,  15  Pick.  534;  Davis  v.  Jones,  17  C.  B.  625;  Murray  v. 
Earl  of  Stair,  2  B.  &  C.  82 ;  Pym  v.  Campbell,  6  El.  &  Bl.  370;  Wal- 
lis  v.  Littell,  11  C.  B.  (N.  S.)  369. 

Evidence  was  admitted  of  the  conversation  which  took  place  at  the 
time  of  the  actual  delivery  of  the  instrument  to  Walsh  by  Wilson,  and 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1021 

also  of  a  previous  conversation,  before  the  date  of  the  instrument  and 
before  it  was  written,  to  the  effect  that  it  should  become  binding  only 
upon  the  assent  of  the  sureties.  The  defendants  contend  that,  even  if 
all  that  took  place  at  the  time  of  the  delivery  was  admissible  as  an 
explanation  thereof,  and  as  a  part  of  the  res  gestae,  yet  that  the  evi- 
dence of  the  previous  conversation  was  erroneously  admitted.  But  a 
previous  conversation  might,  and  in  this  case  apparently  did,  have  a 
direct  bearing  upon  the  question  whether  the  delivery  was  conditional. 
Wilson  at  the  time  of  delivery  stated  that  "this  was  his  proposition,  and 
it  was  in  writing;"  and  the  previous  conversation  clearly  related  to 
such  an  instrument  as  a  proposal  only.  Whether  the  delivery  of  a 
paper  is  absolute  or  conditional  is  a  question  of  fact.  If  it  were  shown 
that  two  parties  had  agreed  that  an  instrument  should  be  thereafter 
prepared  to  take  effect  only  upon  compliance  with  a  certain  condition 
or  the  occurrence  of  a  certain  event,  and  thereafter  such  an  instrument 
were  prepared  and  delivered,  even  if  nothing  was  said  at  the  time  of 
the  actual  deliver}^  it  would  be  for  the  jury  to  say  whether  such  de- 
livery did  not  take  place  under  and  in  pursuance  of  the  previous 
agreement.  That  a  delivery  should  be  conditional,  it  is  not  necessary 
that  express  words  to  that  effect  should  be  used  at  the  time.  That 
conclusion  may  be  drawn  from  all  the  circumstances  which  properly 
form  a  part  of  the  entire  transaction,  whether  in  point  of  time  they 
precede  or  accompany  the  delivery.  In  Murray  v.  Earl  of  Stair,  2  B. 
&  C.  82,  a  subscribing  witness  to  a  bond  stated  that  it  was  delivered 
by  the  obligor  as  his  deed,  but  that  before  and  at  the  time  of  the  exe- 
cution it  was  agreed  that  it  should  remain  in  his  (the  subscribing  wit- 
ness's) hands  until  the  death  of  A.  B.  and  until  certain  securities  were 
given  up,  and  that  the  bond  was  given  to  him  on  that  condition.  It 
was  held  that  it  was  then  a  question  of  fact  for  the  jury,  upon  the 
whole  evidence,  whether  the  bond  was  delivered  as  a  deed  to  take 
effect  from  the  moment  of  delivery,  or  whether  it  was  delivered  upon 
the  express  condition  that  it  was  not  to  operate  as  a  deed  until  the 
death  of  A.  B.,  and  until  the  securities  were  given  up. 

The  defendants  have  no  just  ground  of  complaint  on  account  of  the 
evidence  admitted. 

Exceptions  overruled.*^ 

21  Accord:  Oilman  v.  Gross.  97  Wis.  224.  72  N.  W.  SS.'  (I^^T).  that  a  sub- 
scription paper  for  corporate  stock  should  not  be  binding  until  a  certain  num- 
ber of  shares  were  sold;  Trumbull  v.  O'llara,  71  Conn.  172,  41  Atl.  ~AG  (1.S98), 
that  a  promissory  note  should  not  be  bimlinjr  until  a  certain  event;  Ware  v. 
Allen.  128  TJ.  S.  590.  9  Sup.  Ct.  174,  .32  L.  Ed.  r.C'i  (1SS8),  that  a  contract  should 
not  be  binding  until  approved  by  an  attorney;  Pym  v.  Campbell.  G  E.  &  n. 
370  (1856),  same  as  above;  Stiebel  v.  Grosberg.  202  N.  Y.  2Gt;.  95  N.  E.  092. 
36  L.  R.  A.  (N.  S.)  1147,  Ann.  Cas.  1912D.  1305  (1911),  that  a  release  under 
seal  was  not  to  take  effect  until  a  condition  liappened. 

See,  also,  Wallis  v.  Littell,  11  C.  B.  (N.  S.)  369  (1>SG1),  to  the  effect  that  the 
fact  that  a  payment  coutemplatcd  by  the  instrument  had  been  made  was  not 
conclusive,  but  simply  evidence  tending  to  show  that  the  writing  did  take 
effect. 


1022  THE  "rAROL  evidence"  rule  (Ch.  7 

BEARD  V.  BOYLAN. 
(Supreme  Court  of  Errors  of  Connecticut,  1890.     59  Conn.  181.  22  Atl.  152.) 

Andrews,  C.  J.-*  The  plaintiff,  being  a  creditor  of  tlie  defendant, 
signed  a  composition  agreement  with  sundry  other  creditors,  as  fol- 
lows :  "Whereas,  Henry  Boylan,  of  Derby,  is  in  embarrassed  financial 
circumstances,  and  is  unable  to  pay  his  debts  in  full,  and  desires  to 
effect  a  compromise  with  his  creditors  without  the  expense  and  delay 
of  settling  in  the  probate  court  as  an  insolvent  estate,  and  proposes  to 
pay  twenty  per  cent,  on  all  unsecured  and  unpreferred  claims  on  or 
before  December  1st,  1888;  and  whereas  we,  the  undersigned,  credi- 
tors of  said  Boylan,  are  willing  to  accept  said  twenty  per  cent,  in  full 
of  our  respective  claims :  Now,  therefore,  we,  the  undersigned,  being 
creditors  of  said  Boylan  to  the  amounts  set  opposite  our  names  re- 
spectively, hereby,  each  in  consideration  of  the  like  agreements  of  the 
others,  signers  of  this  contract,  agree  with  each  other,  and  with  said 
Boylan,  that  we  will  accept  twenty  per  cent,  of  our  respective  unsecured 
claims  against  said  Boylan,  if  paid  on  or  before  December  1st,  1888, 
in  full  settlement  and  discharge  of  said  claims.  Derby,  Sept.  22d, 
1888."  After  signing  this  agreement  the  plaintiff  received  and  accepted 
the  20  per  cent,  therein  stipulated.  Subsequently  he  brought  the  pres- 
ent suit,  in  which  he  claims  to  recover  the  whole  amount  of  his  orig- 
inal debt,  less  the  twenty  per  cent,  for  which  he  gives  credit. 

The  defendant's  answer  sets  up  the  composition  agreement,  the  pay- 
ment of  the  20  per  cent.,  and  the  receiving  thereof  by  the  plaintiff,  in 
bar  of  the  action.  The  plaintiff's  reply  admits  the  execution  and  de- 
livery of  the  agreement,  and  the  receipt  of  the  per  cent,  therein  named. 
The  remaining  part  of  the  reply,  so  far  as  it  is  necessary  to  be  noticed, 
is  as  follows :  "Par.  6.  The  plaintiff  signed  said  composition  agree- 
ment in  consideration  that  it  should  be  signed  and  agreed  to  by  all 
the  creditors  who  held  unsecured  claims  against  the  defendant  at  the 
time  the  plaintiff  signed  said  agreement,  and  that  it  should  be  void 
unless  so  signed  by  said  creditors."  "Par.  9,  Ivong  after  the  7th  day 
of  December,  1888,  and  before  tlie  bringing  of  this  suit,  the  plaintiff 
learned  for  the  first  time  that  said  composition  agreement  was  not 
signed  by  all  the  creditors  of  the  defendant  who  held  unsecured  claims 
against  the  defendant  when  the  plaintiff  signed  said  agreement." 

The  defendant  demurred  to  paragraph  6,  "because  the  same,  and 
the  matters  therein  contained,  are  inconsistent  with  and  contradictory 
of  the  said  composition  agreement;"  and  to  paragraph  9,  "because  the 
same,  and  the  matters  therein  contained,  are  immaterial,  and  irrelevant 
to  the  issues  in  this  case."     *     *     * 

The  question  presented  by  the  demurrer  is  whether  or  not  it  would 
be  competent  to  prove  the  facts  alleged  in  these  paragraphs  of  the 

2  2  Part  of  opinion  omitted. 


Sec.  1)  CONTUADICTIXG    INSTRUMENTS  1023 

reply  for  the  purpose  of  varying  the  effect  of  the  composition  agree- 
ment. If  so,  then  the  demurrer  was  properly  overruled;  otherwise, 
there  was  error  in  so  doing.  While  the  law  undoubtedly  requires  the 
utmost  good  faith  in  die  making  and  in  the  performance  of  a  composi- 
tion agreement  between  a  debtor  and  his  creditors,  and  any  advantage 
by  one  creditor  over  any  other,  any  concealment  by  the  debtor,  or  any 
preference  will  vitiate  the  entire  agreement,  yet  the  agreement  itself, 
if  in  writing,  must  be  construed  by  the  same  rules  as  any  other  writ- 
ten contract.  "Where  a  written  document  is  resorted  to  by  the  parties 
for  the  expression  of  their  conclusions  after  a  scries  of  conferences, 
such  document  will  be  regarded  as  expressing  their  final  views,  and  as 
absorbing  all  other  parol  understandings,  prior  or  contemporaneous. 
To  permit  evidence  of  prior,  or  even  of  contemporaneous,  parol  con- 
ditions to  qualify  the  w^ritten  document  would  be  to  not  only  substitute 
media  peculiarly  fallible — recollections  of  wiTnesses  as  to  words — for 
a  medium  whose  accuracy  the  parties  affirm,  but  often  to  substitute  an 
abandoned  for  an  adopted  contract.  Hence  all  prior  conferences  are 
regarded,  unless  there  be  fraud,  as  merged  in  such  case  in  the  final 
document."  Whart.  Ev.  §  1014;  1  Greenl.  Ev.  §  275;  Dean  v.  Mason, 
4  Conn.  428,  10  Am.  Dec.  162;  Glendale  Woolen  Co.  v.  Protection 
Ins.  Co.,  21  Conn.  Z7 ,  54  Am.  Dec.  309;  Fitch  v.  Iron  Works,  29 
Conn.  82 ;   Galpin  v.  Atwater,  Id.  97. 

The  argument  of  the  plaintiff  is  that  proof  of  the  allegations  in  the 
sixth  paragraph  of  his  reply  would  not  contradict  the  composition 
agreement,  because,  he  says,  the  matters  by  him  there  alleged  are  al- 
ready in  that  agreement  by  fair  implication.  He  says,  and  says  truly, 
that  "contracts  are  to  be  taken  and  construed  according  to  the  intent 
of  the  parties,  and  this  intent  should  be  ascertained  from  the  whole 
instrument ;  and  that  it  is  a  general  principle,  applicable  to  all  instru- 
ments and  agreements,  that  whatever  may  be  fairly  implied  from  the 
terms  and  language  of  the  instrument  is,  in  judgment  of  law,  contained 
in  it."  These  are  well-recognized  principles.  But  does  this  case  fall 
within  them?  The  admissions  of  the  reply — namely,  the  execution  of 
the  composition  agreement,  and  the  receipt  by  him  of  the  agreed  per 
cent. — show  that  the  agreement  was  at  one  time  a  valid  and  binding 
one.  The  sixth  paragraph  alleges  a  condition  upon  which  it  was  to 
be  void, — that  is,  a  condition  subsequent, — and  the  plaintiff  asks  the 
court  to  supply  this  condition  by  implication.  It  seems  to  us  that  it 
cannot  be  done.  Implication  supplies  words  in  a  written  contract  for 
the  purpose  of  making  complete  something  which  the  words  used  leave 
incomplete.  It  extends  only  so  far  as  may  be  necessary  to  ascertain 
what  the  parties  intended  by  the  language  they  have  used.  It  can  never 
put  an  additional  term  or  condition  into  the  contract.  The  question 
is  never  what  the  parties  may  have  secretly  and  in  fact  intended,  but 
what  meaning  did  they  intend  Xo  convey  by  the  language  they  have 
used  in  the  written  instrument?  WHicn  a  contract  is  reduced  to  writ- 
ing and  is  complete  in  itself,  the  law  presumes  the  writing  to  contain 


1024  THE  "parol  evidence"  rule  (Ch.  7 

the  whole  agreement.  There  is  nothing  left  for  implication.  This 
rule  is  very  compactly  stated  by  the  court  in  Stone  v.  Rockefeller,  29 
Ohio  St  625,  a  case  upon  the  guaranty  of  a  note,  as  follows:  "The 
law  will  not  supply  any  condition  which  is  not  incorporated  into  the 
agreement,  or  fairly  implied  from  the  language  used;  and,  in  the  ab- 
sence of  fraud,  accident,  or  mistake,  it  is  presumed  conclusively  that 
the  terms  of  the  contract,  as  agreed  between  the  parties  at  the  time, 
are  fully  expressed  in  the  written  guaranty."  Now,  it  seems  to  us 
that  this  is  a  case  for  the  application  of  the  presumption  that  the 
whole  of  the  agreement  was  committed  to  writing.  No  fraud,  acci- 
dent, or  mistake  is  suggested.  The  writing  is  apparently  complete. 
If  a  condition  upon  which  the  instrument  was  to  be  void  was  in  fact 
agreed  on,  it  is  incredible  that  the  parties  should  not  have  inserted  it  in 
the  writing. 

There  is  error  in  the  judgment  ^'  of  the  court  of  common  pleas, 
and  it  is  reversed.'* 

LooMis,  Seymour,  and  Torrance,  JJ.,  concur.  Carpenter,  J., 
dissents. 


WIGGLESWORTH  v.  DALLISON  et  al. 

(Court  of  King's  Bench,  1779.     1  Doug.  201.) 

This  was  an  action  of  trespass  for  mowing,  carrying  away,  and  con- 
verting to  the  defendant's  own  use,  the  corn  of  the  plaintiff,  growing  in 
a  field  called  Hibaldstow  Leys,  in  the  parish  of  Hibaldstow,  in  the  coun- 
ty of  Lincoln.  The  defendant  Dallison  pleaded  liberum  tenementum, 
and  the  other  defendant  justified  as  his  servant.  The  plaintiff  rephed, 
that  true  it  was  that  the  locus  in  quo  was  the  close,  soil  and  freehold 
of  Dalhson;  but, — after  stating  that  one  Isabella  Dallison  deceased, 
(being  tenant  for  life,)  and  Dallison,  the  reversioner  in  fee,  made  a 
lease  on  the  2d  of  March,  1753,  by  which  the  said  Isabella  demised, 
and  the  said  Dallison  confirmed,  the  said  close  to  the  plaintiff,  his 
executors,  administrators,  and  assigns,  for  21  years,  to  be  computed 
from  the  1st  of  May,  1755,  and  that  the  plaintiff,  by  virtue  thereof 
entered  and  continued  in  possession,  till  the  end  of  tlie  said  term  of 
21  years, — he  pleaded  a  custom,  in  the  following  words,  viz.  "That, 
within  the  parish  of  Hibaldstow,  there  now  is,  and  from  time  whereof 
the  memory  of  man  is  not  to  the  contrary,  there  hath  been  a  certain 
ancient  and  laudable  custom,  there  used  and  approved  of,  that  is  to 
say,  that  every  tenant  and  farmer  of  any  lands  within  the  same  parish, 
for  any  term  of  years  which  hath  expired  on  the  first  day  of  May  in 

23  The  trial  court  had  sustained  the  demurrer  to  the  reply,  but  this  ruliug 
was  reversed  by  the  court  of  common  pleas. — IJd. 

24  See,  also,  Smith  v.  Mathl.s,  174  Mich.  202,  140  N.  W.  548  (lOl.^). 


Sec.  1)  CONTnADICTING   INSTRUMENTS  1025 

any  year,  hath  been  used  and  accustomed,  and  of  right  ought  to  have, 
take,  and  enjoy,  to  his  own  use,  and  to  reap,  cut  and  carry  away,  wlien 
ripe  and  fit  to  be  reaped  and  taken  away,  his  way-going  crop,  that  is  to 
say,  all  the  corn  growing  upon  the  said  lands  which  hath  before  the 
expiration  of  such  term  been  sown  by  such  tenant,  upon  any  part  of 
such  lands,  not  exceeding  a  reasonable  quantity  thereof  in  proportion 
to  the  residue  of  such  lands,  according  to  the  course  and  usage  of  hus- 
bandry in  tlie  same  parish,  and  which  hath  been  left  standing  and  grow- 
ing upon  such  lands  at  the  expiration  of  such  term  of  years."  He  then 
stated  that,  in  the  year  1775,  he  sowed  with  corn  part  of  the  said  close, 
being  a  reasonable  part  in  proportion  to  the  residue  thereof  according 
to  the  course  and  usage  of  husbandry  in  the  said  parish,  and  that  the 
corn  produced  and  raised  by  such  sowing  of  the  corn  so  sown  as  afore- 
said, being  the  corn  in  the  declaration  mentioned,  at  the  end  of  the 
term,  and  at  the  time  of  the  trespass  committed,  was  standing  and 
growing  in  the  said  close,  the  said  time  not  exceeding  a  reasonable 
time  for  the  same  to  stand,  in  order  to  ripen  and  become  fit  to  be 
reaped,  and  that  he  was  during  all  that  time,  lawfully  possessed  of  the 
said  corn,  as  his  absolute  property,  by  virtue  of  the  custom.  The 
defendant,  in  his  rejoinder,  denied  the  existence  of  any  such  custom, 
and  concluded  to  the  country.  The  cause  was  tried  before  Eyre,  Baron, 
at  the  last  Assizes  for  Lincolnshire,  when  the  jury  found  the  custom, 
in  the  words  of  the  replication. 

Baldwin  moved  in  arrest  of  judgment,  that  such  a  custom  was  re- 
pugnant to  the  terms  of  the  deed,  and,  therefore,  though  it  might  be 
good  in  respect  to  parol  leases,  could  not  have  a  legal  existence  in  the 
case  of  leases  by  deed. 

A  rule  to  shew  cause  was  granted. 

The  case  was  argued  on  Tuesday  the  8th  of  June,  by  Hill,  Serjeant, 
Chambre,  and  Dayrell,  for  the  plaintiff,  and  Cust.  Baldwin,  Balguy,  and 
Gough,  for  the  defendants;  when  three  objections  were  made  on  the 
part  of  the  defendant,  viz.  1.  That  the  custom  was  unreasonable.  2. 
That  it  was  uncertain.  3.  That,  (as  had  been  contended  on  moving 
for  the  rule,)  it  was  repugnant  to  the  deed  under  which  the  plaintiff 
had  held. 

Lord  Mansfield.  We  have  thought  of  this  case,  and  we  are  all 
of  opinion,  that  the  custom  is  good.  It  is  just,  for  he  who  sows,  ought 
to  reap,  and  it  is  for  the  benefit  and  encouragement  of  agriculture.  It 
is,  indeed,  against  the  general  rule  of  law  concerning  emblements, 
which  are  not  allowed  to  tenants  who  know  when  their  term  is  to  cease, 
because  it  is  held  to  be  their  fault  or  folly  to  have  sown,  when  they 
knew  their  interest  would  expire  before  they  could  reap.  But  tlie 
custom  of  a  particular  place  may  rectify  what  otherwise  would  be 
imprudence  or  folly.  The  lease  being  by  deed  does  not  vary  the  case. 
The  custom  does  not  alter  or  contradict  the  agreement  in  tlie  lease;  it 

IIiNT.Ev. — 65 


1026  THE  "parol  evidence"  rule  (Ch.  7 

only  superadds  a  right  which  is  consequential  to  the  taking,  as  a  heriot 
may  be  due  by  custom,  although  not  mentioned  in  tlie  grant  or  lease.^^ 
The  rule  discharged."® 


HUTTON  V.  WARREN. 
(Court  of  Exchequer,  1836.    1  Mees.  &  W.  4G6.) 

Assumpsit  to  recover  the  customary  allowances  for  work  done  by 
the  plaintiff  on  the  leased  premises  shortly  before  the  expiration  of  his 
term.  After  verdict  for  plaintiff  a  rule  nisi  was  obtained  to  enter  a 
non-suit  on  the  ground  that  the  lease  excluded  the  custom."^ 

Parke,  B.  It  appeared  on  the  trial  that  the  plaintiff  took  the  farm 
of  the  late  incumbent,  the  father  of  the  defendant,  on  the  2d  of  Jan- 
uary, 1811,  by  a  lease  under  seal,  comprising  the  tithes  of  the  parish 
also,  at  the  rent  of  £150.  for  the  farm,  and  i200.  for  the  tithes,  payable 
at  Michaelmas  and  Lady  Day,  for  the  term  of  six  years  from  Lady 
Day,  1811,  if  the  lessor  should  so  long  continue  incumbent.  The 
plaintiff  occupied  until  October,  1832,  when  the  incumbent  resigned, 
and  the  defendant,  his  son,  succeeded  him  in  the  living.  The  plaintiff 
continued  to  occupy  the  farm  and  tithes,  paying  the  same  rent,  at  the 
same  times,  until  Lady  Day,  1834,  when  he  quitted,  in  pursuance  of  a 
notice  given  to  him  by  the  defendant;  and  he  claimed  in  this  action 
the  allowances  for  seed  and  labour  due  to  the  off-going  tenant  by  the 
custom  of  the  country. 

The  defendant  resisted  the  claim,  on  the  ground  that  he  held  under 
the  terms  of  the  written  lease,  and  that  by  those  he  was  not  entitled 
to  any  such  allowances. 

It  was  proved,  that,  by  the  custom  of  the  country,  a  tenant  was 
bound  to  farm  according  to  a  certain  course  of  husbandry  for  the 
whole  of  his  tenancy,  and  at  quitting  was  entitled  to  a  fair  allowance 
for  seed  and  labour  on  the  arable  land  ;  and  was  obliged  to  leave  the 
manure,  if  the  landlord  would  purchase  it.    *    *    * 

We  are  of  opinion  that  this  custom  was,  by  implication,  imported 

into  the  lease. ^^ 

'  It  has  long  been  settled,  that  in  commercial  transactions,  extrinsic 
evidence  of  custom  and  usage  is  admissible  to  annex  incidents  to 
written  contracts,  in  matters  with  respect  to  which  they  are  silent. 

2.'-  Vide  Doe  v.  Snowden,  C.  B.  M.  19  Geo.  Ill,  2  Blackst.  1225  (1779),  where 
It  is  said  by  the  court  that  if  there  is  a  lakinfr  from  old  Lady  Day  (April 
'^th)  the  riT^tom  of  most  counties  would  entitle  the  lessee  to  enter  upon  the  ara- 
'hle  at  Candlemas  (February  2d)  to  prepare  for  the  Lent  corn,  without  any  spe- 
cial words  for  that  purpose;  i.  e.,  in  a  written  agreement  for  seven  years,  for 
the  court  were  speaking  of  such  an  agreement. 

26  It  appears  from  the  reporter's  note  that  the  judgment  for  the  plaintiff 
was  aflirmed  In  the  Exchequer  Chamber,  in  1781. 

27  .Statement  condensed  and  part  of  opinion  omitted. 

2  8  In  the  omitted  passage  the  court  held  that  the  tenant  continued  to  hold 
on  the  same  terms  as  provided  in  the  lease. 


Sec.  1)  CONTRADICTING    INSTRUMENTS  1027 

The  same  rule  has  also  been  applied  to  contracts  in  other  transactions 
of  life,  in  which  known  usages  have  been  established  and  prevailed 
and  this  has  been  done  upon  the  principle  of  presumption  that,  in 
such  transactions,  the  parties  did  not  mean  to  express  in  writing  the 
whole  of  the  contract  by  which  they  intended  to  be  bound,  but  a  con- 
tract with  reference  to  those  known  usages.  Whether  such  a  relaxa- 
tion of  the  strictness  of  the  common  law  was  wisely  applied,  where  for- 
mal instruments  have  been  entered  into,  and  particularly  leases  under 
seal,  may  well  be  doubted ;  but  the  contrary  has  been  established  by 
such  authority,  and  the  relations  between  landlord  and  tenant  have 
been  so  long  regulated  upon  the  supposition  that  all  customai7  obliga- 
tions, not  altered  by  the  contract,  are  to  remain  in  force,  that  it  is  too 
late  to  pursue  a  contrary  course ;  and  it  would  be  productive  of  much 
inconvenience  if  this  practice  were  now  to  be  disturbed. 

The  common  law,  indeed,  does  so  little  to  prescribe  the  relative  du- 
ties of  landlord  and  tenant,  since  it  leaves  the  latter  at  liberty  to  pur- 
sue any  course  of  management  he  pleases,  provided  he  is  not  guilty  of 
waste,  that  it  is  by  no  means  surprising  that  the  Courts  should  have 
been  favourably  inclined  to  the  introduction  of  those  regulations  in 
the  mode  of  cultivation  which  custom  and  usage  have  established  in 
each  district  to  be  the  most  beneficial  to  all  parties. 

Accordingly,  in  Wigglesworth  v.  Dallison  (1  Doug.  201),  afterwards 
affirmed  in  a  writ  of  error,  the  tenant  was  allowed  an  away-going  crop, 
though  there  was  a  formal  lease  under  seal.  There  the  lease  was  en- 
tirely silent  on  the  subject  of  such  a  right,  and  Lord  Mansfield  said 
that  the  custom  did  not  alter  ^®  or  contradict  the  lease,  but  only  super- 
added something  to  it.     *     *     * 

The  next  reported  case  on  this  subject  is  that  of  Webb  v.  Plummer 
(2  B.  &  Aid.  750),  in  which  there  was  a  lease  of  down  land,  with  a 
covenant  to  spend  all  the  produce  on  the  premises,  and  to  fold  a 
flock  of  sheep  upon  the  usual  part  of  the  farm  ;  and  also,  in  the  last 
year  of  the  term,  to  carry  out  the  manure  on  parts  of  the  fallowed 
farm  pointed  out  by  the  lessor,  the  lessor  paying  for  the  fallowing  land 

29  Lord  Campbell,  in  Ilumphrey  v.  Dale,  7  E.  &  B.  206  (1S57):  "In  a  certain 
sense  every  material  incident  which  is  added  to  a  written  contract  varies  it, 
makes  it  different  from  what  it  appeared  to  be.  and  so  far  is  inconsistent  with 
it.  If,  by  the  side  of  the  written  contract  without,  you  write  the  same  con- 
tract with  the  added  incident,  the  two  would  seem  to  import  different  obli- 
gations, and  be  dift'erent  contracts.  To  talie  a  familiar  instance  by  way  of 
illustration:  On  the  face  of  a  bill  of  exchange  at  three  months  after  date  the 
acceptor  would  be  taken  to  bind  himself  to  the  payment  precisely  at  the  end 
of  the  three  months ;  but,  by  the  custom,  he  is  only  bound  to  do  so  at  the 
end  of  the  days  of  grace,  which  vary,  according  to  the  country  in  which  the 
bill  is  made  payable,  from  three  up  to  fifteen.  The  truth  is  that  the  principle 
on  which  the  evidence  is  admissible  is  that  the  parties  have  not  set  down  ou 
paper  the  whole  of  their  contract  in  all  its  terms,  but  those  only  which  were 
necessary  to  be  determined  in  the  particular  case  by  specific  agreement,  and 
which  of  course  might  vary  infinitely,  leaving  to  implication  and  tacit  under- 
standing all  those  general  and  unvarying  incidents  which  a  uniform  usage 
would  annex,  and  according  to  which  they  must  in  reason  be  understood  to 
contract  unless  they  expressly  exclude  them." 


1028  THE  "parol  evidence"  rule  (Ch.  7 

and  carrying  out  the  dung,  but  nothing  for  the  dung  itself,  and 
paying  for  grass  on  the  ground,  and  threshing  the  corn.  The  claim 
was  for  a  customary  allowance  for  foldage,  (a  mode  of  manuring  the 
ground,)  but  the  Court  held,  that,  as  there  was  an  express  provision 
for  some  payment  on  quitting  for  the  things  covenanted  to  be  done, 
and  an  omission  of  foldage,  the  customary  obligation  to  pay  for  the 
latter  was  excluded.  No  doubt  could  exist  in  that  case  but  that  the 
language  of  the  lease  was  equivalent  to  a  stipulation  that  the  lessor 
should  pay  for  the  things  nientioned  and  no  more. 

The  question  then  is,  whether,  from  the  terms  of  the  lease  now  un- 
der consideration,  it  can  be  collected  that  the  parties  intended  to  ex- 
clude the  customary  obligation  to  make  allowances  for  seed  and  labour. 

The  only  clause  relating  to  the  management  of  the  farm  (except  the 
covenant  to  repair)  is  one  which  stipulated  that  the  plaintiff  shall 
spend  and  consume  on  the  farm  three-fourths  of  the  hay  and  straw 
arising  not  onl}'-  from  the  farm  itself,  but  from  the  demised  tithes  of 
the  whole  parish,  and  spread  the  manure,  leaving  such  as  should  not 
be  spread  at  the  end  of  the  term  for  the  use  of  the  landlord,  on  pay- 
ing a  reasonable  price  for  the  same.  This  provision  introduces  and 
has  a  principal  reference  to  a  subject  to  which  the  custom  of  the 
country  does  not  apply  at  all,  namely,  the  tithes,  and  imposes  a  new 
obligation  on  the  tenant  dehors  that  custom,  and  then  qualifies  that 
obligation  by  an  engagement  on  the  landlord's  part  to  give  a  remunera- 
tion, by  re-purchasing  a  part  of  the  produce  in  a  particular  event.  It 
is  by  no  means  to  be  inferred  from  this  provision  that  this  is  the  only 
compensation  which  the  tenant  is  to  receive  on  quitting.  If,  indeed, 
there  had  been  a  covenant  by  the  tenant  to  plough  and  sow  a  certain 
portion  of  the  demised  land  in  the  last  year,  being  such  as  the  cus- 
tom of  the.  country  required,  he  being  paid  on  quitting  for  the  plough- 
ing, or  to  plough,  sow,  and  manure,  he  being  paid  for  the  manuring, 
the  principle  of  expressum  facit  cessare  tacitum,  which-  governed  the 
decision  in  Webb  v.  Plummer,  would  have  applied;  but  that  is  not 
the  case  here.  The  custom  of  the  country  as  to  the  obligation  of  the 
tenant  to  plough  and  sow,  and  the  corresponding  obligation  of  the 
landlord  to  pay  for  such  ploughing  and  sowing  in  the  last  year  of  the 
term,  is  in  no  way  varied.  The  only  alteration  made  in  the  custom  is, 
that  the  tenant  is  obliged  to  spend  more  than  the  produce  of  the  farm 
on  the  premises,  being  paid  for  it  in  the  same  way  as  he  would  have 
been  for  that  which  the  custom  required  him  to  spend. 

We  are  therefore  of  opinion  that  the  plaintiff  is  entitled  to  recover, 
and  the  rule  must  be  discharged. 

Rule  discharged.^" 

8  0  For  a  collection  of  cases  where  the  custom  was  thought  to  be  excluded 
by  the  provisions  of  the  writin;;c.  see  Ci(y  of  Coviuston  v.  Kiinnwlia  Coal  & 
Coke  Co.,  121  Ky.  681,  89  S.  W.  1126,  3  L.  R.  A.  (N.  S.)  248,  123  Am.  St.  Rep. 
219  (1906). 

It  is  obvious  that  the  problem  is  one  of  construction,  and  that  in  a  doubtful 
case  little  help  is  afforded  by  the  view  that  may  have  been  taken  of  a  differ- 


Sec.  1)  CONTIIADICTING   INSTRUMENTS  1029 

KNAPP  V.  HARDEN. 

(Court  of  E.xcliequer,  1835.     1  Gulc,  47.) 

Assumpsit  for  goods  sold  and  delivered,  and  for  work  and  labour. 

Pleas.  1st.  Non  assumpsit.  2dly.  That  the  goods  were  sold  on  a 
contract,  in  which  the  times  of  payment  were  stipulated;  viz.  "ilOO. 
in  the  month  of  November,  1834;  £100.  other  part  thereof,  on  the 
10th  day  of  May,  1835;  and  the  remainder  in  the  course  of  the  year. 
Replication,  denying  the  contract,  and  similiter.  The  action  was  com- 
menced on  the  22d  November.  At  the  trial,  before  Gurney,  B.,  at  the 
sittings  in  Middlesex,  in  ]\Iichaelmas  Term,  it  was  proved  that  the 
work  and  labour  had  been  done ;  that  the  plaintiff,  before  he  under- 
took the  work,  had  written  a  letter  to  the  defendant,  specifying  the 
prices  to  be  charged.  The  letter  was  sent  to  the  defendant's  survey- 
or, Gardiner,  a  witness  at  the  trial,  which  he  communicated  to  the 
defendant,  who  thereupon  wrote  a  letter  to  the  witness,  stating  that 
he  consented  to  the  terms,  if  the  money  were  to  be  payable  at  the 
periods  stated  in  the  plea.  At  a  conversation  between  Gardiner  and 
the  plaintiff,  this  letter  w^as  produced  to,  and  read  by,  the  plaintiff, 
witness  observing,  that  plaintiff  might  consider  the  month  of  Novem- 
ber to  be  the  1st  of  November.  To  this  the  plaintiff  consented.  The 
original  letter,  containing  the  prices,  was  afterwards  signed  by  the 
defendant.  Gurney,  B.,  giving  leave  to  the  plaintiff  to  move  to  enter 
a  verdict,  on  the  ground  that  the  evidence  was  inadmissible,  left  it 
to  the  jury  whether  the  times  of  payment  were  part  of  the  agreement 
between  the  parties. — Verdict  for  the  defendant. 

Chandless  now  moved  to  enter  a  verdict  for  the  plaintiff.  The 
letter  containing  the  prices,  signed  by  the  plaintiff  and  the  defendant, 
was  a  complete  contract  in  writing,  and  the  effect  of  it  could  not  be 
varied  by  parol  evidence  of  a  contemporaneous  agreement.  Boydell 
V.  Drummond  (11  East,  142) — [Parke,  B. — The  two  letters  are  to 
be  taken  together.] — The  second  letter  was  signed  by  the  defendant 
only,  and  could  not  be  connected  with  the  other  except  by  parol,  there- 
fore it  came  within  the  degree  of  oral  evidence. 

Parke,  B.  It  is  quite  clear  the  letter  did  not  in  itself  constitute  an 
agreement :  it  was  not  meant  to  be  so  by  the  parties. 

AldErson,  B.  The  signature  to  the  letter  was  only  to  authenticate 
the  amount. 

Rule  refused. 

ent  contract.  The  difficulty  cannot  be  solved  by  the  ensy  assumption  that  the 
custom  is  inconsistent,  and  therefore  excluded,  where  the  contrart  apparently 
calls  for  something  different,  because  in  many  instances  It  Is  undeniably  true 
that  the  custom  is  actually  applied  to  just  such  contracts. — Ld. 


1030  THE  "parol  evidence"  rule  (Ch.  7 

WILSON  V.  SHERBURNE. 
(Supreme  Judicial  Court  of  Massachusetts,  ,1850.    6  Cush.  68.) 

This  was  an  action  on  a  promissory  note  dated  February  14th,  1849, 
by  which  the  defendant  promised  the  plaintiff  to  pay  him  or  his  order 
one  hundred  and  fifty  dollars  on  the  first  day  of  May  then  next. 
There  was  an  indorsement  on  the  note,  under  date  of  February  21st, 
1849,  of  fifty  dollars  and  thirty-six  cents. 

The  defendant  pleaded  the  general  issue,  and  specified  in  his  defence 
that  the  consideration  of  the  note  was  the  sale  of  a  fish-stand  in 
Springfield,  with  an  express  agreement,  on  the  part  of  the  plaintiff, 
not  to  be  engaged  in  the  fish  business  in  Springfield,  in  competition 
with  the  defendant,  for  one  year  thereafter ;  and  that  the  plaintiff  had 
broken  this  agreement,  by  engaging  in  the  fish  business,  within  the 
year,  greatly  to  the  damage  of  the  defendant. 

It  was  in  evidence,  for  the  defendant,  that  the  consideration  of  the 
note,  as  to  the  sum  of  fifty  dollars,  and  thirty-six  cents,  which  had 
been  indorsed  thereon,  before  the  commencement  of  the  action,  was 
the  sale  of  the  stand  and  personal  property  belonging  to  it ;  and  as  to 
the  residue,  the  plaintiff's  agreement  not  to  be  engaged  in  the  fish  busi- 
ness in  Springfield  for  one  year;  that  the  contract  of  sale  and  the 
agreement  not  to  be  engaged  in  the  fish  business  were  made  at  the 
same  time;  and  that  there  was  a  contract  in  writing  entered  into  be- 
tween the  parties.  The  defendant,  having  proved  the  loss  of  the 
written  contract,  called  a  witness  to  testify  to  its  contents,  who  stated 
that  the  plaintiff  sold  to  the  defendant  on  the  same  terms  and  con- 
ditions, on  which  a  sale  of  the  same  property  had  previously  been  made 
between  other  parties,  and  evidenced  by  a  written  contract,  which  was 
produced ;  but  the  witness  could  not  say,  that  there  was  anything  in 
the  written  contract  between  the  parties  about  the  good-will  of  the 
business. 

The  defendant  then  offered  parol  evidence  to  prove,  that  at  the 
time  of  the  sale,  there  was  also  a  verbal  contract  made  between  the 
parties,  that  the  plaintiff  would  not  engage  in  the  fish  business  in 
Springfield  for  one  year ;  that  this  agreement  formed  a  part  of  the 
consideration  of  the  note  sued  for,  and  that  the  plaintiff  had  vio- 
lated it. 

The  plaintiff  objected,  that  the  written  contract  between  the  parties 
having  referred  to,  and  made  a  part  of  their  agreement,  the  terms  and 
conditions  of  a  written  contract  previously  made  between  other  par- 
ties, parol  evidence  was  not  admissible  to  show  other  terms  and  con- 
ditions. The  defendant  contended,  that  the  agreement,  which  he  of- 
fered to  prove,  was  independent  of  the  written  contract. 

The  presiding  judge  (Byington,  J.)  of  the  court  of  common  pleas, 
before  whom  the  case  was  tried,  rejected  the  evidence;  and  a  verdict 
being  thereupon  rendered  for  the  plaintiff,  the  defendant  excepted. 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1031 

By  the  Court.  The  cases  cited  by  the  counsel  of  the  respective 
parties  show  how  very  difficult  it  is  to  mark  with  precision  any 
satisfactory  and  definite  boundary  line,  between  the  classes  of  cases  in 
which  parol  evidence  is  or  is  not  admissible,  where  the  parties  have 
made  a  written  contract  in  reference  to  the  general  subject  of  agree- 
ment between  them. 

We  are  of  opinion,  that  the  evidence  here  offered  was  properly  ex- 
cluded, inasmuch  as  the  defendant  must  take  the  position,  that  the  sale 
of  the  fish-stand  and  the  personal  property  attached  to  it,  and  the  stip- 
ulation that  the  defendant  [plaintiff?]  would  not  engage  in  the  busi- 
ness, within  the  limits  of  Springfield,  for  the  term  of  one  year,  were 
part  of  or  formed  the  original  consideration.  But  the  written  con- 
tract signed  by  the  parties  does  not  show  any  such  contract  not  to  sell 
fish  in  Springfield  for  one  year.  The  parties  having  stipulated  in 
writing,  it  is  not  competent,  by  parol  evidence,  to  add  to  or  enlarge  it. 
The  testimony  was  properly  excluded. 

Exceptions  overruled.^ ^ 


HARRIS  et  al.  v.  RICKETT. 
(Court  of  Exchequer,  1S59.     4  Hurl.  &  N.  1.) 

Trover  by  the  plaintiffs,  as  assignees  of  a  bankrupt,  to  recover  the 
value  of  certain  property  transferred  by  him  to  the  defendant.  After 
verdict  for  defendant,  a  rule  nisi  was  obtained  to  enter  the  verdict  for 
plaintiffs.^^ 

The  judgment  of  the  court  was  now  delivered  by 

Pollock,  C.  B.  In  this  case  the  plaintiffs  sued  as  assignees  of 
Forman,-  a  bankrupt,  and  claimed  certain  goods  and  chattels  as  such 
assignees.  The  facts  were,  that  the  bankrupt  had  executed  a  bill  of 
sale  to  the  defendant  of  the  property  in  question,  which,  however,  be- 
ing for  an  antecedent  debt,  and  being  a  conveyance  of  all  the  bank- 
rupt's property,  was  prima  facie  an  act  of  bankruptcy,  and  therefore 
void.  But  the  defendant  contended,  and  the  jury  found,  that  at  the 
time  of  the  loan  which  constituted  the  debt,  it  had  been  agreed  be- 
tween the  bankrupt  and  the  defendant  that  this  security  should  be 
given.^^  If  so,  the  case  of  Hutton  v.  Cruttwell  is  an  authority  to 
show  that  the  assignment  was  valid.  But  the  plaintiffs  contended  that 
it  was  not  open  to  the  defendant  to  prove  this,  or  that  the  proof, 
when  made,  was  unimportant.  The  facts  that  gave  rise  to  the  conten- 
tion were  as  follows.  The  loan  was  agreed  on,  and  the  jury  found 
that,  at  the  time  of  the  agreement  for  the  loan  and  as  part  of  it,  it  was 

31  For  a  contrary  view,  see  Locke  v.  Murdoch.  20  N.  M.  522.  151  Pac.  20S. 
L.  R.  A.  1917B,  267  (1915),  where  a  number  of  the  cases  accord  and  contra  are 
collected. 

3  2  Statement  condensed. 

»3  This  agreement  was  proved  by  the  testimony  of  the  bankrupt 


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Sec.  1)  COXTRADICTING  INSTRUMENTS  1033 

question  done  for  the  defendant?  "  Both  of  these  questions  were  ex- 
cluded, on  the  ground  that  parol  proof  could  not  be  received,  because 
the  contract  must  speak  for  itself  concerning  the  agreed  time  of  per- 
formance. 

The  defendant  below,  in  his  defense,  "offered  to  show  by  evidence 
that,  at  the  time  of  making  said  written  contract,  it  was  agreed,  by 
parol,  that  the  work  in  question  should  be  furnished  by  the  plaintiff 
as  fast  as  it  might  be  required  by  the  masons  and  carpenters,  who 
should  do  the  work  on  the  building  for  which  such  work  to  be  fur- 
nished by  the  plaintiff  was  intended,  the  defendant  proposing,  in  mak- 
ing such  offer,  to  follow  up  such  evidence  by  testimony  that  the  plain- 
tiff had  failed  to  furnish  such  work  and  materials  as  so  agreed,  and 
failed  to  furnish  them  as  fast  as  required  by  said  masons  and  car- 
penters," and  to  show  consequent  damage.     This  was  also  rejected. 

It  was  claimed,  on  the  argument,  that  this  testimony  was  admissi- 
ble, on  two  grounds :  First,  To  remedy  a  defect  in  the  written  agree- 
ment by  parol ;   and,  second,  To  show  what  was  reasonable  time. 

There  is  no  ground  for  maintaining  that  such  proof  is  proper  to 
complete  or  supplement  the  written  agreement.  It  is  very  plain  that 
an  agreement  to  do  a  thing  within  a  definite  time  can  never  be  identical 
in  spirit  or  substance  with  an  agreement  to  do  it  within  a  time  not 
fixed,  and  which,  in  law,  is  to  be  merely  a  reasonable  time.  And 
where  the  written  contract  is  left  in  that  indefinite  shape,  an  agree- 
ment to  make  it  definite  is  an  agreement  to  alter  it ;  and  this  can  not 
be  done  by  any  contemporaneous  parol  understanding.  The  elemen- 
tary rule,  excluding  parol  evidence  offered  for  any  such  purpose,  is 
so  plainly  applicable  as  to  need  no  explanation. 

There  is  much  more  plausibility  in  the  second  ground,  which  main- 
tains the  admissibility  of  the  evidence  as  bearing  on  the  question  of 
reasonable  time.  But  it  seems  to  me  that  it  has  no  real  tendency  to 
show  what  time  was  reasonable,  either  alone,  or  as  a  step  in  natural 
connection  with  any  other  proof,  proposed  or  relevant. 

The  supplemental  proof,  which  the  defendant  below  proposed  to  in- 
troduce, was  simply  proof  of  a  breach  of  this  parol  agreement,  in  not 
furnishing  articles  w^ithin  the  time  as  promised.  That  proof  was  nn-. 
doubtedly  competent  to  prove  damages  in  case  the  court  should  find 
that  it  was  unreasonable  not  to  furnish  the  iron  as  fast  as  required  by 
the  workmen,  but  it  could  have  no  possible  bearing  on  the  reason- 
ableness of  their  requisitions.  Unless  the  proof  of  the  parol  agree- 
ment being  made  tended  to  prove  of  itself  that  the  time  thus  fixed  was 
reasonable,  independent  of  any  binding  force  in  the  agreement,  it 
was  rightly  ruled  out. 

It  was  arsrued  that  it  had  this  tendencv.  because  the  fact  that  the 
parties  were  willing  to  agree  upon  such  terms  shows  they  must  have 
thought  them  reasonable.  This  is  in  fact  claiming  for  the  parol  com- 
munications the  full  force  of  an  agreement;    and  it  would  be  a  fair 


1034  THE  "parol  evidence"  rule  (Ch.  7 

answer  to  such  a  claim  to  say,  that,  inasmuch  as  when  they  made  their 
written  agreement,  by  which  only  they  were  to  be  bound,  they  omitted 
this  clause  from  it,  it  must  follow  that  they  were  not  willing  to  agree 
that  it  would  be  reasonable.  And  this  is  really  the  defect  in  the  claim, 
that  it  confounds  causes  with  consequences.  If  time  is  reasonable, 
it  is  because  circumstances  make  it  so,  and  not  because  it  is  so  agreed, 
and  if  parties  agree  that  it  is  reasonable,  it  must  be  presumed  that  they 
are  so  persuaded  by  the  circumstances,  which  can  not  derive  any 
force  or  bearing  from  their  opinions,  whether'  one  way  or  the  other. 

When  a  contract  is  to  be  performed  within  a  reasonable  time,  the 
law  implies  that  the  parties  contract  in  view  of  all  the  pertinent  facts 
that  may  be  mutually  known  to  them,  and  it  requires  them  to  exer- 
cise such  reasonable  diligence  as  under  all  then  and  subsequently  ex- 
isting circumstances  might  be  fairly  expected.  When  a  court  or  jury 
is  called  upon  to  decide  whether  they  have  complied  with  what  might 
have  been  reasonably  expected,  there  must  be  proof  of  such  facts  as 
will  show  what  ought  to  have  been  done.  Where  there  has  been  an 
agreement,  it  must  be  complied  with,  whether  reasonable  or  not, 
simply  because  the  parties  for  a  lawful  consideration  have  seen  fit 
to  make  it.  But  where  the  promise  made  is  no  promise  in  law,  it  must 
be  regarded  as  a  nullity.  To  accept  it  in  any  shape  as  a  basis  or 
proof  of  obligation  is  to  enforce  jt.    *     *    * 

Judgment  affirmed.^ ^ 


DREW  V.  WISWALL  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1903.    183  Mass.  554,  67  N.  E.  666.) 

Contract  for  breach  of  an  alleged  agreement  of  the  defendants  to 
construct  certain  streets  upon  land  in  Woburn  adjacent  to  certain  lots 
purchased  by  the  plaintiff  from  th,e  defendants.  Writ  dated  July  1, 
1898. 

The  answer  contained  a  general  denial  and  also  set  up  the  statute  of 
frauds. 

At  the  trial  in  the  Superior  Court,  Richardson,  J.,  on  motion  of 
the  defendants,  ruled  that  upon  all  the  evidence  the  plaintiff  was 
not  entitled  to  recover,  and  ordered  a  verdict  for  the  defendants.  The 
plaintiff  alleged  exceptions. 

Brali^y,  J.^"  The  exceptions  do  not  disclose  the  reasons,  if  any, 
that  were  given  by  the  defendants  at  the  trial  to  support  their  request 
for  the  ruling  made ;  but  at  the  argument  they  relied  on  two  proposi- 
tions, only,  which  we  consider  in  the  order  presented. 

Under  the  declaration  as  finally  amended,  the  plaintiff,  in  order  to 

86  Accord:    Cameron  Coal  &  Mercantile  Co.  v.  Universal  Metal  Co.,  26  Okl. 
615,  110  Pac.  720,  31  L.  R.  A.  (N.  S.)  618  (1910),  annotated. 
36  Part  of  opinion  omitted. 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1035 

recover  damages,  must  prove  the  purchase  of  and  payment  for  the 
land,  as  well  as  the  agreement  by  the  defendants  to  construct  the 
streets,  and  that,  while  he  had  built  a  house  on  the  estate  conveyed, 
the  defendants  had  failed  to  perform  their  contract.  An  examination 
of  the  evidence  fully  recited  in  the  exceptions  fails  to  show  any  sub- 
stantial variance,  as  matter  of  law,  between  these  allegations  and  the 
proof  offered  to  sustain  them.     *     *     * 

It  is  true  that  the  plaintiff's  title  to  the  land  comes  by  deed  from  the 
defendants,  which  is  silent  as  to  such  an  agreement.  But  the  rule  that 
a  contract  in  writing  cannot  be  added  to  or  varied  by  the  introduction 
of  oral  stipulations  or  agreements  made  before  or  contemporaneous 
with  its  execution  is  not  violated  by  holding  that  the  contract  proved 
by  the  plaintiff  was  not  merged  in  the  deed,  and  was  independent  and 
separate,  though  the  sale  of  the  land  and  building  the  house  furnished 
the  consideration  by  which  it  is  supported.  Durkin  v.  Cobleigh,  156 
Mass.  108,  30  N.  E.  474,  17  L.  R.  A.  270,  32  Am.  St.  Rep.  436;  Cole 
V.  Hadley,  162  Mass.  579,  39  N.  E.  279;  Rackemann  v.  Riverbank 
Improvement  Co.,  167  Mass.  1,  44  N.  E.  990,  57  Am.  St.  Rep.  427; 
Radigan  v.  Johnson,  174  Alass.  68,  54  N.  E.  358. 

No  sufficient  legal  reason  appears  why  the  plaintiff  was  not  en- 
titled to  submit  his  case  to  a  jury  for  its  determination  under  proper 
instructions,  and  the  ruling  that  he  could  not  maintain  his  action  was 


wrong. 


Exceptions  sustained. ^^ 


WHEATON  ROLLER  MILL  CO.  v.  JOHN  T.  NOYE  MFG.  CO. 
(Supreme  Court  of  Minnesota,  1896.     66  Minn.  156.  68  X.  W.  854.) 

Mitchell,  J.^®  This  action  was  brought  to  recover  damages  for 
the  breach  of  a  warranty  of  a  steam  engine,  boiler,  etc.,  furnished  and 
set  up  by  defendant  for  the  plaintiff  in  its  mill.  The  alleged  warranty 
was  that  the  machinery  was  well  made,  of  good  material,  and  capable 
of  operating  plaintiff's  mill  at  full  capacity;  (he  part  italicized  being 
all  that  is  material  on  this  appeal.  It  appeared  on  the  trial  that  the 
machinery  was  furnished  under  the  written  contract  found  in  full  in 
the  paper  book,  at  folios  52  to  57,  which  is  so  long  that  we  shall  leave 
it  to  speak  for  itself,  without  attempting  here  to  state  its  provisions. 
The  plaintiff  then  offered  certain  parol  evidence,  the  exclusion  of  which 
by  the  court  forms  the  subject  of  the  assignments  of  error. 

We  do  not  find  in  the  part  of  the  record  cited  any  such  ruling  as 

37  And  so  in  Anderson  v.  American  Sulnirhan  Corp.,  155  N.  C.  131,  71  S.  E. 
221.  36  L.  R.  A.  (N.  S.)  806  (1911),  annotated. 
3  8  Part  of  opinion  omitted. 


1036  THE  "parol  evidence"  rule  (Ch,  7 

tliat  referred  to  in  the  first  assignment  of  error,  which  may  therefore 
be  passed  without  further  notice. 

The  second  assignment  of  error  is  that  "the  court  erred  in  sustain- 
ing defendant's  objection  to  plaintiff's  offer  to  prove  that  there  was  an 
express  oral  warranty."  This  refers  to  the  complex  and  somewhat 
obscure  and  indefinite  offer  found  at  the  bottom  of  page  12  of  the 
record.     *     *     * 

Assuming  that  such  a  warranty  as  suggested  could  be  spelled  out  of 
the  offer,  and  that  it  was  made  in  proper  form,  still  the  evidence  was 
properly  excluded  under  the  familiar  rule  that  parol  evidence  is  inad- 
missible to  vary  the  terms  of  a  written  contract.  Plaintiff's  contention 
is  that  it  does  not  fall  within  that  rule ;  that  the  offer  was  merely  to 
prove  a  separate  oral  agreement  as  to  a  matter  on  which  the  writing 
was  silent,  and  which  was  not  inconsistent  with  its  terms.  The  rule 
thus  sought  to  be  invoked  is  one  which  both  courts  and  text  writers 
have  found  some  difficulty  in  formulating  so  as  to  be  at  once  complete 
as  well  as  accurate.  Mr.  Stephens  states  the  rule  thus :  "There  may 
be  proved  by  parol  the  existence  of  any  separate  oral  agreement  as  to 
any  matter  on  which  a  document  is  silent,  and  which  is  not  incon- 
sistent with  its  terms,  if  from  the  circumstances  of  the  case  the  court 
infers  that  the  parties  did  not  intend  the  document  to  be  a  complete 
and  final  statement  of  the  whole  of  the  transaction  between  them." 
Steph.  Ev.  c.  12.  This  seems  an  accurate  statement  of  the  rule,  except 
that  it  is  indefinite  as  to  what  are  "the  circumstances  of  the  case" 
which  the  court  may  consider  in  determining  the  completeness  or  incom- 
pleteness of  the  document.  Mr;  Freeman,  in  his  note  to  Green  v.  Bat- 
son,  5  Am.  St.  Rep.  194,  36  N.  W.  849,  says,  "Where  the  contract  as 
expressed  in  the  writing  is  manifestly  incomplete,  parol  evidence  is 
admissible  to  show  a  'contemporaneous  agreement  that  the  property 
should  be  of  a  particular  quality,  quantity,  or  kind."  This  statement 
of  the  rule  is  perhaps  subject  to  the  criticism  that  it  seems  to  imply 
that  the  incompleteness  of  the  writing  must  be  manifest  on  its  face 
from  a  mere  inspection  of  the  document.  All  the  authorities  are  sub- 
stantially agreed  that  where,  in  the  absence  of  fraud,  accident,  or  mis- 
take, the  parties  have  deliberately  put  their  contract  into  a  writing 
which  is  complete  in  itself,  and  couched  in  such  language  as  imports 
a  complete  legal  obligation,  it  is  conclusively  presumed  that  they  have 
introduced  into  the  written  instrument  all  material  terms  and  circum- 
stances relating  thereto. 

But  the  point  upon  which  the  courts  have  sometimes  differed  is  as 
to  how  the  incompleteness  of  the  written  contract  may  be  made  to  ap- 
pear. Some  cases  seem  to  go  to  the  length  of  holding  that  this  may 
be  done  by  going  outside  of  the  writing,  and  proving  that  there  was  a 
stipulation  entered  into  but  not  contained  in  it,  and  hence  that  only 
part  of  the  contract  was  put  in  writing.  If  any  such  doctrine  is  to 
obtain,  there  would  be  very  little  left  of  the  rule  against  varying  writ- 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1037 

ten  contracts  by  parol.  Such  is  not  the  law.  Other  cases  seem  to  al- 
most go  to  the  other  extreme,  by  holding  that  the  incompleteness  of 
the  writing  must  appear  on  the  face  of  the  document  from  mere  in- 
spection. But  to  furnish  a  basis  for  the  admission  of  parol  evidence 
the  incompleteness  need  not  be  apparent  on  the  face  of  the  instrument. 
If  the  written  contract,  construed  in  view  of  the  circumstances  in 
which,  and  the  purpose  for  which,  it  was  executed, — which  evidence  is 
always  admissible  to  put  the  court  in  the  position  of  the  parties, — 
shows  that  it  was  not  meant  to  contain  the  whole  bargain  between  the 
parties,  then  parol  evidence  is  admissible  to  prove  a  term  upon  which 
the  writing  is  silent,  and  which  is  not  inconsistent  with  what  is  writ- 
ten ;  but,  if  it  shows  that  the  writing  was  meant  to  contain  the  whole 
bargain  between  the  parties,  no  parol  evidence  can  be  admitted  to  in- 
troduce a  term  which  does  not  appear  there.  In  short,  the  true  rule 
is  that  the  only  criterion  of  the  completeness  of  the  written  contract 
as  a  full  expression  of  the  agreement  of  the  parties  is  the  writing  it- 
'  self ;  but  in  determining  whether  it  is  thus  complete  it  is  to  be  constru- 
ed, as  in  any  other  case,  according  to  its  subject-matter,  and  the  circum- 
stances ,  under  which  and  the  purposes  for  which  it  was  executed. 
What  was  said  on  this  subject  in  Thompson  v.  Libby,  34  Minn.  374, 
26  N.  W.  1,  is  perhaps  incomplete,  in  not  specifically  adverting  to  this 
rule  of  construction,  and  for  that  reason  capable  of  being  understood 
as  meaning  that  the  incompleteness  must  appear  on  the  face  of  the 
document  from  mere  inspection.  For  a  full  discussion  of  the  law  on 
this  subject,  see  Mr.  Freeman's  note  to  Green  v.  Batson,  supra;  also 
Browne,  Par.  Ev.  c.  12.  Some  few  cases  hold  that  in  the  case  of  a 
written  contract  for  the  sale  of  personal  property,  where  the  writing 
contains  no  warranty,  it  is  competent  to  admit  parol  evidence  to  add  a 
warranty,  placing  the  decision  on  the  ground  that  a  warranty  is  col- 
lateral to  the  contract  of  sale.  This  doctrine  was  expressly  repudiated 
in*  Thompson  v.  Libby,  supra. 

Applying  the  rules  which  we  have  laid  down,  parol  evidence  to  prove 
a  warranty,  which  was  part  of  the  prior  or  contemporaneous  agree- 
ment, and  about  which  the  written  contract  was  silent,  was  clearly  in- 
admissible. The  written  contract  is  of  the  most  formal  and  complete 
character,  specifying  with  minute  detail  the  particular  make,  name, 
size,  and  power  of  the  engine  and  boiler  and  appurtenances  to  be 
furnished,  and  how  and  when  they  were  to  be  set  up.  The  plaintiff 
having  thus  contracted  for  machinery  of  a  particular  make,  size,  and 
power,  the  mere  fact  that  it  was  purchased  for  the  purpose  of  operat- 
ing this  mill,  and  that  defendant  knew  this,  would  not  be  a  circum- 
stance that  would  of  itself  justify  the  court  in  construing  the  writing 
as  an  incomplete  expression  of  the  contract  of  the  parties.  Defendant 
having  furnished  the  specific  machiner>',  both  in  make,  size,  and  power, 
which  the  parties  contracted  for,  there  was  no  implied  warranty  that 


1038  THE  "parol  evidence"  rule  (Ch.  7 

it  would  furnish  power  enough  to  operate  plaintiff's  mill.  Brick  Co. 
V.  Hood,  60  Minn.  401,  62  N.  W.  550,  51  Am.  St.  Rep.  539. 

This  also  disposes  of  plaintiff's  tliird  and  fourth  assignments  of  er- 
ror. 

Order  affirmed.^' 


STARK  ELECTRIC  R.  CO.  v.  McGINTY  CONTRACTING  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Sixth  Circuit,  1917.    23S  Fed. 

657,  151  C.  C.  A.  507.) 

Action  by  the  McGinty  Contracting  Company  against  the  Stark 
Electric  Railroad  Company.  There  was  a  judgment  for  plaintiff, 
and  defendant  brings  error. 

KnappEn,  Circuit  Judge.*"  *  *  *  3  f|^g  f^j-st  cause  of  action 
embraces  a  claim  for  extra  work  performed  in  excavating  on  Weaver 
Hill,  which  lies  between  Canton  and  Alliance.  The  contract  provided  a  , 
price  of  40  cents  per  cubic  yard  therefor.  In  fact,  when  the  contract 
was  made  the  railroad  tracks  were  in  position  at  the  location^  where 
plaintift'-s  work  was  to  be  done,  traffic  was  being  maintained  thereover,, 
and  was  continued  throughout  the  excavation  work.  Testimony  was 
admitted  to  the  effect  that  when  the  contract  was  being  negotiated  de- 
fendant assured  plaintiff  that  it  would  remove  the  tracks  far  enough 
to  be  out  of  tlie  way  of  the  excavation  work  (which  contemplate.d  a 
deep  cut),  that  such  agreement  would  be  embraced  in  the  specifications, 
and  that  the  contract  price  was  fixed  under  such  inducement.  The 
specifications  (which  plaintiff  claims  not  to  have  seen  until  six  weeks 
after  the  contract  was  made)  did  not  contain  this  provision.  There 
was  testimony  that  defendant  did  not  remove  the  tracks,  and  that  after 
the  work  was  entered  upon  plaintiff  refused  to  proceed  further  with 
that  portion  of  it  unless  the  tracks  were  so  removed,  or  unless  de- 
fendant would  pay  an  additional  price  for  doing  the  work  with  the 
tracks  kept  in  condition  for  traffic,  that  the  defendant  claimed  to  be 
unable  to  get  right  of  way  for  temporary  track  purposes,  and  tliat 
Alorley  agreed  to  pay  what  the  work  was  thus  reasonably  worth,  and 
that  the  work  was  done  under  such  agreement.  Plaintiff'  claims  $1 
per  cubic  yard  as  a  reasonable  price.  The  amount  at  40  cents  per 
cubic  yard  was  paid  upon  vouchers,  the  difference  ($6,816)  represents 
the  additional  compensation  claimed.  The  defendant  criticizes  the 
testimony  of  the  alleged  oral  agreement  as  incompetent.  It  is  the  well- 
settled  rule  that  parol  representations  are  not  admissible  in  the  absence 
of  fraud  or  mutual  mistake,  when  the  written  contract  purports  to 

88  For  a  collection  of  the  cases  on  tliis  point,  see  Electric  Stora^'e  Battery 
Co.  V.  Waterloo.  C.  F.  &  X.  ^{y.  Co.,  138  Iowa,  3C'J,  IIG  N.  W.  144,  1\)  L.  It.  A. 
(N.  S.)  11S3  (1008),  annotated. 

*o  I'art  of  opinion  omitted. 


Sec.  1)  CONTRADICTING   INSTRUMENTS  1039 

contain  the  entire  agreement.  Scitz  v.  Brewers'  Co.,  141  U.  S.  510, 
516,  12  Sup.  Ct.  46,  35  h.  Ed.  837;  Marmct  Coal  Co.  v.  Peoples'  Coal 
Co.  tC.  C.  A.  6)  226  Fed.  646.  650.  141  C.  C.  A.  402.  and  cases  cited. 

Plaintiff  insists  that  the  assurance  in  question  was  the  inducing  cause 
of  the  contract,  and  was  a  collateral  agreement.  It  is  conceded  that 
if  the  agreement  was  of  the  latter  nature,  it  was  admissible,  but  such 
nature  is  denied.  The  jury  was  instructed,  in  effect,  diat  if  they  found 
that  the  contract  was  made  on  defendant's  assurance  that  it  would  re- 
move the  tracks,  and  that  defendant  subsequently  agreed  verbally  to 
pay  the  additional  reasonable  value  of  the  work  occasioned  by  their 
maintenance,  recovery  could  be  had.  It  is  conceded  that  the  work 
could  not  have  been  done  with  the  tracks  in  place  unless  they  were 
blocked  up.  Plaintiff  claims  to  have  kept  30  or  40  men  doing  such 
work  and  transferring  the  tracks  from  side  to  side.  It  is  clear  that, 
by  the  strict  letter  of  the  contract,  plaintiff  could  have  done  its  work 
without  supporting  the  tracks,  thereby  suspending  operation  of  the  rail- 
road, unless  the  tracks  were  removed.  Defendant  denied  any  agree- 
ment, before  the  contract  was  made,  to  remove  the  tracks,  and  denied 
an  agreement  to  pay  additional  compensation,  claiming  that  defendant 
itself  actually  supported  and  moved  the  tracks  during  the  excavation 
work.  It  is  evident,  however,  that  both  parties  expected  that  the 
excavation  should  not  interfere  with  traffic,  defendant  claiming  to 
have  secured  right  of  way,  for  the  temporary  use  of  the  tracks,  before 
the  contract  in  question  was  made.  On  this  subject  the  contract  did  not 
purport  to  speak.  We  think  it  was  thus  competent  to  show  the  cir- 
cumstances surrounding  the  making  of  the  contract,  including  the  as- 
surance claimed  as  inducement  to  its  making. 

The  fact  that  plaintiff  received  payment  of  the  vouchers  at  the  origi- 
nal contract  price  is  not  conclusive  against  it,  in  view  of  McGinty's 
testimony  tending  to  show  that  the  money  was  received  with  the  under- 
standing that  the  balance  should  be  paid  "when  the  whole  job  is 
done."     *     *     * 

Affirmed  on  condition  of  a  remittitur  of  another  item. 


MacALMAN  v.  GLEASON. 

(Supreme  Judicial  Court  of  Massachusetts,  1917.    22S  Mass.  454,  117 

N.  E.  795.) 

Pierce,  J.*^  This  is  an  action  of  contract  brought  by  the  plaintiff 
to  recover  $509.53  of  the  defendant,  being  for  labor  alleged  to  have 
been  performed  on  and  materials  furnished  for  an  automobile  pur- 
chased by  the  defendant  of  the  plaintiff. 

December  16,  1910,  after  negotiations  and  numerous  interviews,  the 

41  statement  omitted. 


1040  THE   "parol   evidence"  RULE  (Ch.  7 

plaintiff  and  defendant  drew  up  and  signed  a  written  agreement  for  tlie 
purchase  and  sale  of  a  second-hand  motor  car  for  the  price  of  $1,800 
including-  extras.  A  copy  of  this  agreement  is  printed  in  a  footnote.*- 
At  the  time  of  the  execution  of  the  agreement  the  defendant  paid  the 
plaintiff  the  agreed  price  and  the  automobile  was  delivered  two  days 
afterward.  After  the  car  had  been  delivered  to  the  defendant,  and 
used  by  him,  certain  repairs  becoming  necessary  it  Avas  sent  to  the  re- 
pair department  of  the  plaintiff  and  the  repairs  made.  The  defendant 
admitted  that  the  charges  in  the  items  enumerated  in  the  plaintiff's 
declaration  were  fair  and  reasonable,  but  claimed  that  the  greater  part 
thereof  were  covered  by  a  contemporaneous  oral  agreement  and 
guarantee  of  the  plaintiff  to  keep  the  car  in  repair  for  one  year  from  the 
date  of  purchase  free  of  charge  to  the  defendant. 

It  is  the  contention  of  the  defendant  that  the  oral  agreement  was  col- 
lateral to  the  principal  agreement  and  operated  as  an  inducement  for 
entering  into  it.  Subject  to  the  exception  of  the  plaintiff,  as  evidence 
to  prove  the  so-called  guaranty,  the  defendant  was  permitted  to  testify 
that  the  substance  of  the  numerous  interviews  was  as  follows : 

At  a  conversation  at  the  defendant's  house  "I  said  I  didn't  want  a 
secondhand  car  because  they  were  always  in  the  repair  shop."  He  said 
"This  had  been  thoroughly  overhauled  *  *  *  and  if  I  bought  it 
they  would  guarantee  it  for  a  year."  To  the  question,  "What  do  you 
mean?"  the  defendant  answered,  "Keep  it  in  repair  for  a  year."  At 
an  interview  at  the  defendant's  office  "I  told  him  tlie  car  looked  good, 
but  I  could  not  make  up  my  mind  to  have  a  secondhand  car."  "We 
went  over  the  same  conversation  as  the  day  before.  He  said  there 
would  not  be  anything  like  that  in  this  car,  that  the  car  would  be  just  as 

4  2  The  writing  in  question  was  as  follows: 
"Sec-Hand  Green  Car. 

"Motor  Car  Order. 
"J.  H.  MacAlman,  889  Boylston  Street. 

"Boston,  Mass.,  December  16,  1910. 
"We  acknowledge  receipt  of  your  check  for  the  sum  of  $1,800.00  to  apply 
upon  your  order  entered  this  day  as  follows,  viz.: 

"Secondlnind  Stearns  motor  car,  model  30/GO  equipped  with  Chain  Drive. 
"G.  Vaughau  body,  standard  tires  and  regular  standard  equipment. 
"Color  body,  maroon.    Color  running  gear,  maroon. 
"Special  extras. 

"Koniurks:  Equipment  to  include  cape  top,  Prest-0-Lite  tank,  five  lamps, 
horn,  pump,  jack,  and  kit  of  tools,  tire  irons. 

"Price,  inclusive  of  extras,  .$1,800.00  f.  o.  b.  Boston,  Mass. 
"Terms:   Cash  upon  acceptance  of  this  proposal. 

"To  be  delivered  at  Boston,  Mass.,  on  or  before,  at  once,  subject  to  strikes, 
Accidents,  transportation,  unavoidable  delays  and  causes  beyond  our  control. 
"It  is  expressly  understood  that,  in  event  of  failure  on  our  part  to  make  de- 
livery upon  the  date  and  for  the  causes  stated,  the  above  payment  will  be 
refunded  upon  demand,  J.  H.  MacAlman, 

"By  Cha.s.  I.  IIowoU,  Salesman. 
"Accepted  by  Edward  F.  Gleason,  I'urchaser, 

"By  II.  C.  Prior. 
"Address,  535  Beacon  St.,  Boston." 


Sec.  1)  CONTRADICTING    INSTRUMENTS  1041 

good  as  new,  all  the  worn  places  thoroughly  overhauled  and  they  would 
guarantee  it  to  me  for  a  year."  A  third  conversation  was  over  the 
telephone:  "He  said,  'How  do  you  feel  about  tlie  car?'  or  something 
hke  that.  I  said,  'If  this  car  as  you  say  is  thoroughly  overhauled  and 
you  will  guarantee  it  for  a  year,  I  will  give  $1,800  for  it.'  "  He  said, 
"All  right."  "  'We  will  accept  your  offer,'  and  I  told  him  I  would  be 
down.    I  think  that  was  in  the  forenoon  of  December  14." 

The  admitted  evidence  tends  to  prove  that  at  the  time  of  the  making 
of  the  final  agreement  of  sale  a  further  agreement  was  made  that  the 
car  would  be  just  as  good  as  new,  all  the  worn  places  thoroughly  over- 
hauled and  that  the  plaintiff  would  guarantee  it  for  a  year.  The  writ- 
ing signed  by  the  parties  appears  on  its  face  to  be  a  complete  contract, 
embracing  all  the  particulars  necessary  to  make  a  perfect  agreement  and 
designed  to  express  the  whole  arrangement  between  the  parties.  The 
evidence  tlierefore  should  have  been  excluded  unless  the  oral  agree- 
ment relates  to  a  subject  independent  of,  distinct  from  and  collateral  to 
the  sale  of  the  motor  car.  Button  v.  Gerrish,  9  Cush.  89,  55  Am.  Dec. 
45;  Fitz  V.  Comey,  118  Mass.  100;  Puffer  Mfg.  Co.  v.  Krum,  210 
Mass.  211,  213,  96  N.  E.  139;  Glackin  v.  Bennett,  226  Mass.  316,  115 
N.  E.  490. 

We  are  of  opinion  that  the  oral  agreement  directly  touched  and  con- 
cerned the  use  and  enjoyment  of  the  thing  sold,  that  it  was  not  a  mere 
inducement  for  entering  into  the  sale,  that  it  was  a  part  of  the  bar- 
gain of  sale,  and  was  not  independent  of  or  collateral  to  that  sale.  The 
case  at  bar  cannot  be  distinguished  in  principle  from  Brigham  v.  Rog- 
ers, 17  Mass.  571,  wherein  it  was  held  that,  where  an  estate  was  de- 
mised by  lease,  no  action  lay  on  a  parol  promise  made  by  the  lessor 
at  the  time  of  executing  the  lease,  that  the  water  on  the  premises  de- 
mised would  be  good,  and  that  there  would  be  enough  of  it,  and  if 
not  that  he  would  make  it  so.  This  decision  was  approved  in  Durkin  v. 
Cobleigh,  156  Mass.  108,  30  N.  E.  474,  17  L.  R.  A.  270,  32  Am.  St. 
Rep.  436;  Spear  v.  Hardon,  215  Alass.  89,  102  N.  E.  126;  Naumberg 
V.  Young,  44  N.  J.  Law,  331,  344,  43  Am,.  Rep.  380;  Thompson  Foun- 
dry &  Machine  Co.  v.  Glass,  136  Ala.  648,  654,  33  South.  811. 

It  follows  that  the  evidence  should  have  been  excluded,  and  that 
judgment  should  be  entered  for  the  plaintift  in  the  sum  of  $509.53  in 
accordance  with  the  terms  of  the  report. 

So  ordered. 

HiNT.Ev.— 66 


1042  THE  "parol  evidence"  rule  (Ch.  7 


SECTION  2.— EXTRINSIC  EVIDENCE  TO  AID  IN  THE  CON- 
STRUCTION OR  APPLICATION  OF  WRITTEN 
INSTRUMENTS 


DOE  ex  dem.  FREELAND  v.  BURT. 
(Court  of  King's  Bench,  17S7.    1  Term  R.  701.) 

Ejectment  for  a  cellar  and  wine-vaults  in  Westminster,  tried  before 
Bulier,  J.,  at  the  sittings  after  last  term.  The  defendant  claimed  un- 
der a  lease  from  the  lessor  of  the  plaintiff  of  certain  parts  of  a  mes- 
suage situated  on  the  west  side  of  Swallow-street,  described  to  be  one 
room  on  the  ground  floor,  and  a  cellar  thereunder,  and  a  vault  con- 
tiguous and  adjoining  thereto;  and  three  rooms,  together  with  the 
ground  whereon  the  same  now  stand,  and  together  with  a  piece  of 
ground  on  the  north  side,  particularly  describing  it,  with  an  exception 
of  a  right  of  way ;  and  the  whole  were  described  to  have  been  late 
in  the  occupation  of  A.  It  was  admitted  that  the  vault  in  question  was 
under  this  piece  of  ground  which  was  a  yard. 

The  defendant  rested  his  title  on  the  maxim  that  cujus  est  solum, 
ejus  est  usque  ad  coelum  &  ad  inferos.  The  lessor  of  the  plaintiff'  of- 
fered evidence  to  shew  that  at  the  time  of  the  lease  the  cellar  in  ques- 
tion was  in  the  occupation  of  B.  another  tenant;  and  therefore  that 
it  could  not  have  been  the  intention  of  the  parties  that  it  should  pass 
by  the  lease  to  the  defendant ;  and  that  the  defendant  had  not  claimed  it 
till  after  the  expiration  of  that  lease.  The  defendant's  counsel  object- 
ed to  this  evidence,  because  the  lessor  of  the  plaintiff  was  estopped 
by  his  deed  from  saying  it  was  not  meant  to  pass.  But  BuUer,  J.,  was 
of  opinion  that  the  evidence  was' admissible;  and  the  plaintiff  obtained 
a  verdict,  with  liberty  to  the  defendant  to  enter  a  nonsuit  if  the  ob- 
jection were  well-founded. 

Mingay  now  shewed  cause  against  a  rule  for  entering  a  nonsuit. 
The  evidence  offered  was  not  contradictory  to,  but  in  explanation  of, 
the  deed. 

AsHHURST,  J.*^  It  appears  plainly  from  the  evidence  that  this  ob- 
jection is  against  the  justice  of  the  case.  For  it  was  not  in  the  con- 
templation of  the  parties  at  the  time  of  the  lease  to  pass  the  cellar, 
and  it  appears  that  for  three  or  four  years  after  the  defendant's  lease 
the  lessor  of  the  plaintiff'  received  rent  from  the  former  tenant  of  the 
cellar.  The  only  question  is,  whether  the  court  are  absolutely  bound 
by  the  terms  of  this  lease  to  put  the  construction  on  it,  for  which  the 
defendant  contends.  Now,  it  seems  to  me,  that  the  construction  of 
all  deeds  must  be  made  with  a  reference  to  their  subject-matter.     And 

<8  Opinion  of  Grose,  J.,  omitted. 


Sec.  2)  AIDING   CONSTRUCTION  1043 

it  may  be  necessary  to  put  a  difTcrcnt  construction  on  leases  made  in 
populous  cities,  from  that  on  those  made  in  the  country.  We  know  that 
in  London  different  persons  have  several  freeholds  over  the  same 
spot;  different  parts  of  the  same  house  are  let  out  to  different  people. 
That  is  the  case  in  the  Inns  of  Court.  Now,  it  would  be  very  extra- 
ordinary to  contend  that  if  a  person  purchased  a  set  of  chambers,  tlien 
leased  them,  and  afterwards  purchased  another  set  under  them,  the  af- 
ter-purchased chambers  would  pass  under  the  lease. 

In  the  present  case,  considering  the  nature  of  this  property,  it  was 
proper  to  let  in  evidence  to  shew  the  state  and  condition  of  it  at  the 
time  when  the  lease  was  granted.  Prima  facie  indeed  the  property  in 
the  cellar  would  pass  by  the  demise,  but  that  might  be  regulated  and 
explained  by  circumstances.  Therefore  I  am  of  opinion,  that,  consider- 
ing all  the  circumstances  of  this  case,  it  was  proper  to  receive  the  evi- 
dence offered  at  the  trial,  which,  when  received,  proved  that  the  cel- 
lar w^as  not  intended  to  be  passed  by  the  demise  to  the  defendant. 

BuLLER,  J.  Where  there  is  a  conveyance  in  general  terms  of  all 
that  acre  called  Black-acre,  every  thing  which  belongs  to  Black-acre 
passes  with  it.  And  there  the  rule,  which  has  been  mentioned,  prima 
facie  obtains.  But  whether  parcel  or  not  of  the  thing  demised  is  al- 
ways matter  of  evidence.  Suppose  the  premises  in  question  had  been 
the  inheritance  of  another  person  at  the  time  of  this  demise,  instead  of 
their  being  in  lease,  they  clearly  would  not  have  been  parcel  of  this 
demise.  Then  their  being  in  lease  to  another  person  under  this  plain- 
tiff cannot  vary  tlie  question,  whether  parcel  or  not.  In  the  next  place, 
it  is  very  clear  on  inspecting  the  lease  itself ;  these  words  cannot  re- 
ceive the  general  construction  of  the  law.  This  is  a  lease  of  a  part  of  a 
messuage,  consisting  of  one  room  on  the  ground  floor,  with  a  cellar 
thereunder :  now,  if  the  argument  for  the  plaintiff  would  hold,  the  cel- 
lar would  have  passed  with  the  room  on  the  ground  floor  without  par- 
ticularly specifying  it.  Then  a  description  of  another  part  of  the  prem- 
ises is,  "of  ground,  together  wit4i  three  rooms  which  stand  on  it." 
Which  shews  that  the  parties  have  particularly  described  every  thing 
which  was  intended  to  pass.  Then  follows  a  demise  of  the  yard  de- 
scribed with  the  same  particularities,  specifying  the  abuttals  and  the 
dimensions. 

Rule  discharged. 


DOE  ex  dem.  CHICHESTER  v.  OXEXDEN. 
(Court  of  Common  Pleas,  ISIO.    3  Taunt.  117.) 

This  was  an  ejectment  brought  by  the  lessor  of  the  plaintiff  as  heir 
at  law  of  Sir  John  Chichester,  Bart.,  on  a  demise  laid  subsequent  to 
Sir  John  Chichester's  death;  and  at  the  trial,  before  Lawrence,  J., 
at  the  Exeter  summer  assizes,  1809,  a  verdict  was  found  for  the  de- 
fendant, subject  to  the  opinion  of  this  court  on  the  following  case: 


1044  THE  "parol  evidence"  rulb  (Ch.  7 

The  lessor  of  tlie  plaintiff  was  heir  at  law  of  Sir  John  Chichester, 
Bart.,  who,  on  the  30th  of  September,  1808,  died  seised  in  fee  as  well 
of  the  premises  in  question,  which  composed  his  maternal  estate,  as 
of  other  property,  which  he  derived  from  his  father,  called  the  Youl- 
ston  estate.  The  premises  claimed  consist  of  the  manors  of  Ash- 
ford,  George  Teign,  and  Stowford,  tlie  tithes  impropriate  of  the  par- 
ish of  Nether  Ex,  and  two  estates  called  Great  and  Little  Bowley, 
in  the  parish  of  Cadbury,  in  the  county  of  Devon :  the  manor  of 
Ashton  is  situate  in  the  parish  of  Ashton,  with  the  exception  of  one 
insulated  estate,  parcel  thereof,  which  lies  in  the  parish  of  Exmin- 
ster,  adjoining  to  the  parish  of  Ashton.  The  manor  of  George  Teign 
is  situate  in  Ashton  parish:  of  the  manor  of  Stowford  one  part  lies 
in  the  parish  of  Crediton,  and  the  other  in  the  parish  of  Sandford ; 
the  manor  itself  being  distant  from  the  parish  of  Ashton  about  12 
or  13  miles.  The  parish  of  Nether  Ex  is  also  about  11  or  12  miles, 
and  the  parish  of  Cadbury  15  miles,  distant  from  the  parish  of  Ash- 
ton: with  the  premises  aforesaid  are  comprised,  besides  the  manor 
of  Ashton,  the  barton  of  Ashton,  and  lands  lying  within  the  parish 
of  Ashton.  On  the  3d  day  of  September,  1808,  Sir  John  Chichester, 
Bart.,  being  seised  as  aforesaid,  made  and  published  his  last  will  and 
testament,  duly  executed,  so  as  to  pass  real  estates,  in  the  terms  fol- 
lowing: "I  give  my  estate  of  Ashton,  in  the  county  of  Devon,  to 
George  Chichester  Oxenden,  (the  defendant,)  second  son  of  Sir  Henry 
Oxenden,  Bart.,  of  Broom,  in  the  county  of  Kent.  I  give  the  house 
in  Seymour  Place,  for  which  I  have  given  a  memorandum  of  agree- 
ment to  purchase,  and  which  is  to  be  paid  for  out  of  timber  which  I 
have  ordered  to  be  cut  down,  to  the  Rev.  John  Sandford  of  Cherwill, 
in  Devonshire." 

To  show  that  by  the  words  "my  estate  of  Ashton,"  the  devisor  in- 
tended to  dispose  of  the  whole  of  the  maternal  estate  before  specified, 
the  following,  amongst  other  evidence,  was  offered  by  the  defendant, 
and  received.  First,  the  verbal  instructions  given  by  the  devisor,  at 
the  time  of  making  the  will,  to  the  devisee,  John  Sandford,  who  made 
the  same,  which  were,  to  make  a  memorandum  to  guard  against  ac- 
cidents, to  give  George  Oxenden  his,  the  devisor's,  Ashton  estate. 
Secondly,  expressions  which  Mr.  Sandford  and  the  Rev.  Thomas 
Hole  (the  latter  of  whom  had  occasionally  audited  the  devisor's  ac- 
counts for  24  or  25  years  previous  to  his  decease)  had  at  various 
times  heard  the  devisor  use  in  describing  his  different  property,  viz. 
that  in  speaking  of  his  paternal  property,  he  used  to  call  it  his  Youl- 
ston  estate,  and  in  describing  his  estate  derived  by  him  from  his 
mother,  he  used  to  designate  that  by  the  general  term  of  his  Ashton 
estate,  or  Ashton  property ;  and,  particularly  on  one  occasion,  directed 
that  the  timber  should  not  be  cut  on  his  mother's  property,  the  Ash- 
ton estate,  but  on  his  father's  property.  Thirdly,  a  series  of  annual 
accounts  delivered  to  the  devisor  by  John  Cleave,  and  John  Smith, 
who  were   successively  two   of   his   stewards:    these  accounts   com- 


Sec.  2)  AIDING  CONSTRUCTION  1045 

nienced  with  the  year  1785,  and  the  form  of  each  of  them  was  very 
nearly  the  same.  The  following  is  a  description  of  the  form  of  one 
of  these  accounts:  on  tlie  outside  was  endorsed,  "J-  Cleave's  account 
for  Ashton  estate,  from  January  1st,  1799,  to  January  1st,  ISOO;"  the 
first  page  thereof  was  thus  headed:  "J.  Cleave's  account  for  Sir 
John  Chichester,  Bart.,  for  Ashton  estate,  from  January  1st,  1799,  to 
January  1st,  1800;"  in  the  first  page  was  contained  a  list  of  the  various 
payments  made  by  Cleave.     *     *     * 

And  underneath  was  the  following  receipt,  the  signature  to  which 
is  in  the  handwriting  of  the  devisor.  April  1st,  1810,  examined  this 
account,  and  received  the  vouchers  thereof,  and  due  from  John  Cleave 
on  the  balance  thereof,  the  sum  of  £470.  Os.  4.  l-2d.  John  Chichester. 
The  foregoing  evidence  was  objected  to  by  the  counsel  for  the  lessor 
of  the  plaintiff,  as  inadmissible,  but  was  received,  subject  to  the  opinion 
of  the  court  as  to  the  propriety  of  its  being  admitted.  If  the  court 
should  be  of  opinion  that  the  evidence  was  properly  received,  then  the 
verdict  was  to  stand :  if  not,  then  a  verdict  was  to  be  entered  for  the 
lessor  of  the  plaintiff,  for  so  much  of  the  premises,  if  any,  as  the  court 
should  think  did  not  pass  under  the  will. 

The  case  was  twice  argued ;  first  in  Hilary  term,  1810,  by  Pell, 
Serjt.,  for  the  plaintiff,  and  Heywood,  Serjt.,  for  the  defendant;  and 
again  in  Easter  term,  by  Best,  Serjt.,  for  the  plaintiff,  and  Lens,  Serjt., 
for  the  defendant. 

For  the  plaintiff  it  was  argued,  that  parol  or  other  extrinsic  evi- 
dence was  not  admissible  to  contradict,  explain,  or  enlarge  the  ef- 
fect of  a  will;  it  was  admissible  only  in  cases  where  there  was  an 
absolute  necessity,  because  the  will  would  otherwise  be  uncertain  or 
msensible,  and  could  have  no  effect  without  it,  or  where'  there  was  a 
latent  ambiguity ;  and  no  such  necessity  or  latent  ambiguity  subsisted 
in  this  case.  All  that  class  of  cases  where  parol  evidence  has  been  re- 
ceived to  repel  trusts  arising  on  presumptions,  may  be  laid  aside  as 
irrelevant;  (to  which  the  court  agreed.)  The  testator  had  an  estate  of 
Ashton,  viz.  a  manor  of  Ashton,  and  tlie  barton  of  Ashton,  and  other 
lands  there ;  and  having  an  estate  of  Ashton,  he  used  the  most  appro- 
priate words  to  convey  it.  If  he  had  said  the  manor  of  Ashton,  it  would 
not  have  comprehended  the  barton,  nor  if  he  had  devised  the  barton, 
would  it  have  included  the  manor.  Plis  "estate  of  Ashton"  was  his 
estate  "of  or  belonging  to  Ashton."  The  words  do  mean  that,  and  they 
can  mean  nothing  else.  At  that  period  of  the  cause  at  which  the  evi- 
dence was  offered,  it  was  in  proof,  therefore,  that  the  testator  had 
an  estate  of  Ashton ;  and  there  being  enough,  both  in  interest,  and 
quantity  of  estate,  and  position,  to  satisfy  the  terms  of  the  devise,  the 
evidence  ought  not  to  have  been  received,  but  the  case  ought  to  have 
stopped  there,  unless  it  had  been  shown  that  there  was  another  Ashton 
estate  belonging  to  the  devisor.     *     *     * 

For  the  defendant  it  was  contended  that  this  was  a  case  of  latent 
ambiguity.     A  latent  ambiguity  cannot  be  discovered  to  exist,  but  by 


1046  THE  "parol  evidence"  rule  (Ch.  T 

the  aid  of  collateral  evidence ;  and  if  that  evidence  be  such  as  would, 
if  admitted,  raise  a  doubt  in  the  mind  of  the  judge,  it  ought  to  be 
received  and  left  to  the  jury.  No  one  can  see  on  the  face  of  this  will 
any  ambiguity  whatever.  The  word  "of"  does  not  denote  locality  in 
this  case :  it  means  all  that  estate  which  the  testator  called  Ashton.  He 
might  designate  his  whole  estate  by  the  name  of  any  one  parcel,  wheth- 
er distant  or  near,  if  he  had  any  reason  in  his  mind  for  so  doing.  The 
word  "of"  is  therefore  distinguishable  from  "at,"  the  expression  used 
in  Whitbread  v.  May,  which  might  denote  locality ;  and  the  court  not 
being  bound  to  construe  "of"  as  local,  may  give  it  any  other  construc- 
tion which  the  evidence  requires:  the  ambiguity  is  therefore  raised, 
and  by  the  same  evidence  it  has  been  explained.     ***** 

Mansfield,  C.  J.,  now  delivered  the  judgment  of  the  court.     After 
recapitulating  the  case,  and  adverting  to  the  evidence,  he  added :     If 
this  evidence  ought  not  to  be  received,  the  consequence  will  be,  that 
so  much  of  the  property  only  will  pass  as  is  not  affected  by  the  evi- 
dence.    I  have  doubted  much  upon  it.     The  more,  because  in  a  less 
strong  case,   May  v.    Whitbread,    two   judges   thought  the   evidence 
should  be  received.    Lord  Eldon  increased  my  doubts.    On  the  whole, 
I  rather  think  we  should  go  further  in  receiving  this  evidence,  than 
any  case  has  yet  gone.    There  is  an  extreme  jealousy  in  receiving  evi- 
dence to  explain  written  instruments.     Many  cases  have  been  cited. 
In  general  they  are  well  known.     The  last  and  strongest  was  Doe  v. 
Brovv^n.     There  it  was  impossible  to  doubt  what  the  testator  meant. 
In  this  case  my  own  judgment  only  is,  if  the  evidence  were  admitted, 
that  the  testator  meant  to  devise  the  whole  of  his  maternal  estate 
to  his  maternal  relations,  and  not  only  the  land  locally  situated  at  Ash- 
ton.    But  to  decide  in  favor  of  this  evidence  would  be  going  further 
than  any  court  has  yet  gone.     I  need  not  particularize  the  cases :    of 
devises  where  there  were  two  persons  of  the  same  name ;    where  the 
name  by   which   property   was   devised,   applied   equally  to   two   es- 
tates.    Such  was  the  case  in  P.  Wms.  of  a  devise  to  Gertrude  Yardley, 
by  the  name  of  Catherine  Eamly,  where  there  was  no  such  person  as 
Catherine  Earnly.    The  case  in  Ambler  of  legacies  to  John  and  Bene- 
dict, sons  of  John  Sweet;    he  had  two  sons,  the  name  of  one  was 
Benedict,  but  the  name  of  one  was  James.    The  evidence  was  received. 
It  is  not  expressly  said  in  any  of  these  cases,  that  it  was  necessary  to 
receive  the  evidence,  in  order  to  give  effect  to  the  will,  which  would 
not  operate  without  such  evidence.     But  although  this  is  not  said, 
yet  the  rule  seems  to  hold.     It  will  be  found  that  the  will  would 
have  had  no  operation,  unless  the  evidence  had  been  received.     Here, 
without  the  evidence,  the  will  has  an  effective  operation ;    every  thing 
will  pass  under  it  that  is  in  the  manor  or  parish ;    or  what  he  would 
naturally  call  his  Ashton  estate.     This  will  be  an  effective  operation; 
and  this  being  so,  the  case  herein  differs  from  all  the  others;    be- 

**  Statement  condensed. 


Sec.  2)  AIDING  CONSTRUCTION  1047 

cause  in  them,  the  evidence  was  admitted  to  explain  that  which,  with- 
out such  explanation,  could  have  had  no  operation.  It  is  safer  not  to 
go  beyond  this  line.  Therefore  only  those  premises  pass  which  are  in 
the  manor  or  parish  of  Ashton;  for  all  but  them  the  plaintiff  has  a 
right  to  recover. 

Postea  to  the  plaintiff.*^ 


DOE  ex  dem.  BEACH  v.  EARL  of  JERSEY. 
(House  of  Lords,  1S25.    3  Barn.  &  C.  870.) 

[Ejectment  for  certain  lands  to  which  the  defendant  claimed  title 
under  the  will  of  Louisa  Barbara  Vernon,  which  contained  the  fol- 
lowing provision : 

"I  give,  *  *  *  subject  to  the  life  estate  of  my  husband  therein, 
all  that  my  Briton  Ferry  estate,  with  all  the  manors,  advowsons,  mes- 
suages, buildings,  lands,  tenements  and  hereditaments  thereto  belong- 
ing or  of  which  the  same  consists,  with  the  appurtenances  unto  *  *  * 
and  after  his  decease  to  the  second  son  of  George  Bussy  Villicrs, 
Earl  of  Jersey."]" 

4  5  The  subsequent  action  of  Doe  ex  dem.  Oxenden  v.  Chichester  was  taken 
to  the  House  of  Lords,  4  Dow,  65  (1816),  and  the  same  result  reached  on  the 
following  reasoning  by  Gibbs.  C.  J.: 

"I  do  not  state  the  particulars  of  the  evidence,  as  the  question  is,  whether 
any  evidence  at  all  can  be  admitted  to  explain  the  bequest.  We  are  all 
agreed,  as  I  have  stated,  that  'my  estate  of  Ashton'  and  'my  estate  at  Ashton,' 
are  words  of  the  same  import,  and  the  question  then  is,  when  lands  at  a  par- 
ticular place  are  devised,  whether  extrinsic  evidence  may  be  received  to  show 
that  the  devisor  Included  lands  out  of  that  place ;  and  we  are  all  of  opinion 
that  such  evidence  is  inadmissible. 

"The  courts  of  law  have  been  jealous  of  the  admission  of  extrinsic  evidence 
to  explain  the  intention  of  a  testator ;  and  I  know  only  of  one  case  in  which 
it  is  permitted,  that  is,  where  an  ambiguity  is  introduced  by  extrinsic  cir- 
cumstances. There,  from  the  necessity  of  the  case,  extrinsic  evidence  is  ad- 
mitted to  explain  the  ambiguity ;  for  example,  where  a  testator  devises  his 
estate  of  Blackacre,  and  has  two  estates  called  Blackacre,  evidence  must  be 
admitted  to  show  which  of  the  Blackacres  is  meant ;  so  if  one  devises  to  his 
son  John  Thomas,  and  he  has  two  sons  of  the  name  of  John  Thomas,  evi- 
dence must  be  received  to  show  which  of  them  the  testator  intended.  And  so 
also  if  one  devises  to  his  nephew  William  Smith,  and  has  no  nephew  answer- 
ing the  description  in  all  respects,  evidence  must  be  admitted  to  show  which 
nephew  the  testator  meant  by  a  description  not  strictly  applying  to  any 
nephew.  The  ambiguity  there  arises  from  an  extrinsic  fact  or  circumstance, 
and  the  admission  of  evidence  to  explain  the  ambiguity  is  necessary  to  give 
effect  to  the  will,  and  it  is  only  in  such  a  case  that  extrinsic  evidence  can  be 
received.  It  is  of  great  importance  tbat  the  admission  of  such  extrinsic  evi- 
dence should  be  avoided  where  it  can  be  done,  that  a  purchaser  or  an  heir  at 
law  may  be  able  to  judge  from  the  instrument  itself  what  lands  are  or  are 
not  affected  \>y  it." 

Compare  the  treatment  of  a  somewhat  similar  problem  in  Lane  v.  Stanhope, 
6  Term  R.  .^>45  (1705),  where  it  was  thought  that  the  fact  that  .several  pieces 
of  land  had  been  used  as  a  single  farm  was  LmiX)rtaut  in  determining  to  what 
the  language  referred. 

*6  The  part  of  the  statement  Inclosed  in  brackets  has  been  condensed  from 
the  report  of  this  case  in  the  Court  of  King's  Bench,  1  B.  &  Aid.  550.  Part 
of  opinion  omitted. 


1048  THE  "PAEOL  evidence"  ErLB  (Ch.  7 

At  the  trial  of  this  cause  before  Dallas,  J,,  at  the  Hereford  Spring 
assizes,  1816,  a  bill  of  exceptions  was  tendered  as  to  the  admission  of 
evidence  offered  on  the  part  of  the  defendant,  objected  to  on  that  of 
the  plaintiff,  and  received  by  the  learned  Judge.  After  the  usual  state- 
ment of  the  pleadings  and  of  the  evidence  received  at  the  trial  without 
objection,  the  bill  of  exceptions  goes  on  to  state  the  evidence  objected 
to,  in  the  following  words.  "And  the  counsel  learned  in  the  law  for 
the  said  George  Earl  of  Jersey,  the  said  then  defendant,  proposed  and 
offered  to  prove  and  give  in  evidence  on  the  part  and  behalf  of  the 
said  Earl,  the  said  then  defendant,  certain  books,  being  stewards'  ac- 
cotmt  books  kept  and  made  out  by  former  stewards,  now  deceased, 
of  the  said  Louisa  Barbara  A'ernon  and  her  predecessors,  owners  of 
the  said  lands,  tenements,  and  hereditaments,  containing  particulars 
thereof,  in  which  the  said  stewards  charged  themselves  with  the  re- 
ceipt of  various  sums  of  money  on  account  of  the  said  owners,  and 
among  other  particulars  the  entry  following,  to  wit,  'Briton  Ferr}* 
estate,  in  the  county  of  Brecon;'  and  also  proposed  and  offered  to 
prove  and  give  in  evidence,  that  the  lands  and  tenements  in  the  said 
declaration  mentioned,  together  with  the  lands,  tenements,  and  heredit- 
aments in  the  said  schedules  respectively  contained,  had  all  gone  by 
the  name  of  the  Briton  Ferr}'-  estate ;  and  that  such  of  the  said  lands, 
tenements,  and  hereditaments  as  were  in  the  count}-  of  Brecon,  ex- 
tended over  twelve  parishes,  and  contained  above  four  thousand  acres 
of  land." 

The  jury  found  a  special  verdict,  upon  which  this  court  in  Easter 
term,  1818,  1  B.  &  A.  550,  gave  judgment  for  the  defendant.  A  writ 
of  error  having  been  brought,  the  question  was  fully  discussed  be- 
fore the  House  of  Lords,  and  in  the  course  of  the  present  session,  the 
following  questions  were  put  to  the  Judges: 

First,  Whether  all  the  several  matters  which  it  appears  by  the  bill 
of  exceptions  were  offered  to  be  proved  and  given  in  evidence  on  the 
part  of  the  defendant,  and  which  it  so  appears  it  was  insisted  by  the 
counsel  of  John  Doe,  were  inadmissible,  and  ought  not  to  be  received 
in  evidence,  were  matters  admissible,  and  which  ought  to  have  been 
received  in  evidence,  regard  being  had  to  the  fact,  that  none  of  the 
particulars  of  the  evidence  proposed  to  be  given  appear  to  have  been 
stated  or  required  to  be  stated,  in  order  to  prove  that  all  the  lands  and 
tenements  had  gone  by  the  name  of  the  Briton  Fern,'^  estate. 

Second.  Whether  the  finding  in  the  special  verdict  that  the  tene- 
ments in  "the  county  of  Brecon,  together  with  the  manors  and  tene- 
ments in  the  county  of  Glamorgan,  had  been  known  by  the  name  of 
the  Briton  Ferry  estate,  and  by  no  other  name,  for  divers,  to  wit,  fifty 
years  before  the  death  of  Louisa  Barbara  Vernon,"  (who  died  in  the 
year  1786,)  is  consistent  with  the  other  findings  contained  in  the  spe- 
cial verdict,  and  especially  with  the  descriptions  and  names  of  the 
tenements  in  the  county  of  Brecon,  and  of  the  manors  and  tenements 
in  the  county  of  Glamorgan,  in  the  several  indentures  and  the  sched- 


Sec.  2)  AIDING  CONSTRUCTION  1049 

ules  thereunto  annexed,  found  and  set  forth  in  the  said  special  verdict 
and  in  the  will  of  Louisa  Barbara  Vernon,  therein  also  found  and  set 
forth,  and  which  indentures  and  will,  appear  to  have  been  respectively 
executed  within  fifty  years  before  the  death  of  the  said  Louisa  Bar- 
bara Vernon.    *     *    * 

Abbott,  C.  J.  All  the  Judges,  except  the  Lord  Chief  Baron  and 
Mr.  Justice  LittlEdalE,  who  were  not  present  at  the  argument,  have 
conferred  upon  the  question  proposed,  and  have  agreed  upon  answers 
thereto. 

To  the  first  question : 

We  are  of  opinion  that  the  words  "all  that  my  Briton  Ferry  es- 
tate, with  all  the  manors,  advowsons,  messuages,  buildings,  lands, 
tenements,  and  hereditaments  thereunto  belonging,  or  of  which  the 
same  consists"  found  in  the  will  of  this  testatrix,  in  which  mention 
also  is  made  of  her  Penline  Castle  estate,  denote  a  property  or  estate 
known  to  the  testatrix,  by  the  name  of  her  Briton  Ferry  estate,  and  not 
an  estate  locally  situate  in  a  parish  or  township  of  Briton  Ferry,  and, 
consequently,  that  a  question  arising  upon  any  particular  tenement, 
is  properly  a  question  of  parcel  or  no  parcel ;  and  we,  therefore  think, 
the  several  matters  offered  to  be  proved  and  given  in  evidence  on  the  ■" 
part  of  the  defendant  were  admissible,  and  ought  to  have  been  received. 
We  think  the  object  for  which  such  evidence  was  offered  was  ob- 
vious, and  must  have  been  understood  by  the  judge  and  the  counsel 
on  each  side,  without  being  specially  stated  or  required  to  be  so. 

To  the  second  question : 

We  are  of  opinion  that  the  finding  in  the  special  verdict,  that  the 
tenements  in  the  county  of  Brecon,  together  with  the  manors  and  tene- 
ments in  the  county  of  Glamorgan,  were  known  by  the  name  of  the 
Briton  Ferry  estate,  and  by  no  other  name  for  divers,  to  wit,  fifty 
years  before  the  death  of  Louisa  Barbara  Vernon,  is  consistent  with 
the  other  findings  in  the  special  verdict.  In  the  will  of  Lord  Man- 
sell,  and  also  in  the  deeds  of  1740,  mentioned  in  the  special  verdict, 
it  was  necessary  to  describe  and  name  the  particular  tenements,  be- 
cause the  will  gave  certain  tenements  only,  and  not  the  whole  estate 
in  trust  for  sale;  and  the  deeds  of  1740,  were  intended  as  an  exe- 
cution of  that  trust  and  a  sale  under  it.  The  deeds  of  1757,  were 
a  settlement  on  a  marriage,  and  in  such  settlements,  as  well  as  other 
conveyances,  it  is  usual  to  describe  the  parcels  and  enumerate  the 
particulars  of  the  estate  intended  to  be  settled;  and  we  think  a  de- 
scription and  enumeration  of  particulars  by  situation  and  names  is 
not  inconsistent  with  a  name  of  the  whole,  as  composing  an  aggregate 
mass.  The  whole  of  an  estate  may  be  known  by  one  name,  and 
each  of  its  parts  by  its  own  particular  name. 

To  the  third  question: 

We  are  of  opinion  that  it  is  not  sufficiently  found  that  the  said  tene- 
ments and  manors  in  the  said  counties  were  so  known  by  name  by  the 
testatrix.     In  truth,  it  is  not  found  that  they  were  so  known  by  name 


1050  THE  "parol  evidence"  rule  (Ch.  7 

to  any  person  at  the  time  of  making  the  will.     The  expression  divers 
to  wit,  fifty  years  before  the  death  of  I^ouisa  Barbara  Vernon,  is  much 
too  loose  and  indefinite.     *    *    * 
Venire  de  novo  awarded. 


SMITH  et  al.  v.  WILSON. 
(Court  of  King's  Bench,  1S32.    3  Barn.  &  Adol.  728.) 

This  was  an  action  for  the  breach  of  the  following  covenant  in  a 
lease,  whereby  the  defendant  demised  to  the  plaintiffs,  inter  alia,  a 
warren ;  "That  at  the  expiration  of  the  term,  they,  tlie  plaintiffs,  would 
leave  on  the  warren  10,000  rabbits  or  conies,  the  defendant  paying 
60/.  per  thousand  for  the  same;  and  for  any  more  than  that  number 
at  that  rate,  the  number  to  be  estimated  by  two  indifferent  persons,  one 
to  be  chosen  by  each  party."  Averment  that,  at  the  expiration  of  the 
term,  the  plaintiff  left  more  than  10,000,  to  wit,  19,200  rabbits  upon 
the  warren,  but  that  the  defendant  would  not  pay  for  the  same.  Plea 
non  est  factum.  At  the  trial  before  Garrow,  B.,  at  the  Summer  assiz- 
es for  Suffolk,  1831,  it  appeared  that,  at  the  expiration  of  the  term, 
the  number  of  rabbits  on  the  warren  was  estimated  by  two  indifferent 
persons  chosen  by  the  parties,  to  be  1600  dozen.  It  was  contended 
for  the  defendant,  that,  according  to  the  custom  of  the  country,  the 
1600  dozen  should  be  computed  at  100  dozen  to  the  thousand;  and, 
therefore,  that  the  defendant  was  liable  to  pay  but  for  16,000  rabbits. 
On  the  other  hand,  it  was  insisted  for  the  plaintiffs,  that  the  words 
per  thousand  must  be  understood  in  the  ordinary  sense,  and  that  the 
defendant  ought  to  pay  for  19,200  rabbits,  being  1600  dozen.  The  de- 
fendant paid  into  Court  a  sufficient  sum  to  pay  for  16,000  rabbits.  Evi- 
dence was  offered  by  the  defendant  to  show  that  tlie  term  thousand,  as 
applied  to  rabbits,  meant,  in  that  part  of  the  country,  100  dozen.  This 
evidence  was  objected  to,  but  received  by  the  learned  Judge:  and  he 
directed  the  jury  to  find  for  the  defendant,  if  they  thought  it  was  prov- 
ed that  the  word  thousand,  as  applied  to  rabbits,  meant  100  dozen.  A 
verdict  having  been  found  for  the  defendant,  a  rule  nisi  was  obtained 
for  a  new  trial,  on  the  ground  that  the  evidence  had  been  improperly 
received. 

Parke,  J.*''  The  only  question  is,  whetlier  the  evidence  has  been 
properly  received.  Assuming  that  it  has.  the  jury  have  found  that,  ac- 
cording to  the  custom  of  the  country,  there  was  an  understanding  be- 
tween the  parties  to  this  contract  that  the  defendant  should  pay  for 
the  rabbits,  computing  them  at  the  rate  of  100  dozen  to  the  thousand. 
The  rule  deducible  from  the  authorities  on  this  subject  is  correctly  laid 
down  in  3  Starkie  on  Evidence,  1033.    "Where  terms  are  used  which 

<7  opinions  of  Lord  Tentorden,  C.  J.,  and  Llttledale  and  Taunton,  JJ., 
omitted. 


Sec.  2)  AIDING  CONSTRUCTION  1051 

are  known  and  understood  by  a  particular  class  of  persons,  in  a  certain 
special  and  peculiar  sense,  evidence  to  that  effect  is  admissible  for  the 
purpose  of  applying  the  instrument  to  its  proper  subject-matter;  and 
the  case  seems  to  fall  within  the  same  consideration  as  if  the  parties 
in  framing  their  contract  had  made  use  of  a  foreign  language,  which 
the  courts  are  not  bound  to  understand.  Such  an  instrument  is  not, 
on  that  account,  void ;  it  is  certain  and  dcfmite  for  all  legal  purposes, 
because  it  can  be  made  so  in  evidence  through  the  medium  of  an  inter- 
preter. Conformably  with  these  principles,  the  courts  have  long 
allowed  mercantile  instruments  to  be  expounded  according  to  the  cus- 
tom of  merchants,  who  have  a  style  and  language  peculiar  to  them- 
selves, of  which  usage  and  custom  are  the  legitimate  interpreters."  Al- 
though that  principle  has  been  more  frequently  applied  to  mercantile 
instruments  than  to  others,  it  is  not  confined  to  them ;  and,  if  the  word 
thousand,  as  applied  to  the  particular  subject-matter  of  rabbits,  had,  in 
the  place  where  this  contract  was  made,  a  peculiar  sense,  I  think  that 
parol  evidence  was  admissible  to  show  it.  In  an  action  upon  a  con- 
tract for  the  sale  of  1000  deals,  it  would,  I  think,  be  competent  to 
show  that  the  word  thousand  meant  more  than  it  would  in  its  ordinary 
sense.  I  agree  that  where  a  word  is  defined  by  act  of  parliament  to 
mean  a  precise  quantity,  the  parties  using  that  word  in  a  contract,  must 
be  presumed  to  use  it  in  the  sense  given  to  it  by  the  legislature,  unless 
it  appear  from  other  parts  of  the  contract  that  they  used  it  differently. 
But  that  is  not  the  present  case.  No  specific  meaning  has  been  given 
by  tlie  legislature  to  the  word  thousand  as  applied  to  rabbits,  and, 
therefore,  it  must  be  understood  according  to  the  custom  of  the  coun- 
try :  and  evidence  was  admissible  to  show  what  that  was. 
Rule  discharged.*® 


BROWN  V.  BROWN  et  al 
(Supreme  Judicial  Court  of  Massachusetts,  1844.    8  Mete.  573.) 

SnAW,  C.  J.*"  The  question  in  the  present  case  arises  from  a  reser- 
vation in  a  deed,  conveying  land  to  the  plaintiff,  duly  made  and  execut- 
ed by  the  inhabitants  of  Marblehead.  This  deed,  made  in  1839, 
purports  to  convey  to  the  plaintiff  a  tract  of  land,  embracing  a  line 
of  beach  bounding  on  the  sea,  and  contains  the  following  reservation : 
"Reserving  to  the  town  the  right  and  privilege  to  enter  on  the  beach, 
and  to  take  and  carry  away  gravel  and  sand  therefrom,  as  the  said 
town  may  have  occasion,  for  the  making  and  repairing  of  their  high- 
ways," &c. 

The  action  is  brought  against  the  defendants,  who  claim  to  have 
acted  under  the  authority  of  the  town,  and  justify  their  right  so  to  do 

48  And  so  in  Myers  v.  Sari,  3  El.  &  EL  30G  (ISGO),  where  a  numhor  of  tho 
cases  are  reviewed.      4 
48  Statement  omitted. 


1052  THE  "parol  evidence"  rule  (Ch.  7 

under  the  foregoing  reservation ;  and  the  question  is,  what  is  the  true 
construction  and  legal  effect  of  that  reservation?  The  averment  in  the 
declaration  is,  that  the  defendants,  instead  of  taking  sand  and  gravel, 
took  and  carried  away  ballast;  and  the  proof  was,  that  they  took  up 
and  carried  away  stones  of  considerable  size,  embedded  in  and  mixed 
with  the  beach  gravel  on  the  sea  shore,  and  that  such  materials  did  not 
come  within  the  description  of  sand  and  gravel. 

Evidence  was  offered  by  the  defendants,  to  prove  the  meaning  of 
the  words  "sand  and  gravel,"  as  generally  and  usually  understood  at 
Marblehead ;  also  to  prove  that  the  same  species  of  material  had  been 
used  for  the  same  purpose,  before  the  making  of  the  said  deed.  The 
court  rejected  the  former  evidence  and  admitted  the  latter. 

The  court  are  of  opinion,  that  the  instructions  were,  right  upon 
both  points.  As  to  the  first,  we  think  the  general  rule  of  law  is,  that 
the  construction  of  every  written  instrument  is  matter  of  law,  and,  as 
a  necessary  consequence,  that  courts  must,  in  the  first  instance,  judge 
of  the  meaning,  force  and  effect  of  language.  The  meaning  of  words 
and  the  grammatical  construction  of  the  English  language,  so  far  as 
they  are  established  by  the  rules  and  usages  of  the  language,  are,  prima 
facie,  matter  of  law,  to  be  construed  and  passed  upon  by  the  court. 
But  language  may  be  ambiguous  and  used  in  different  senses  ;  or  gener- 
al words,  in  particular  trades  and  branches  of  business — as  among  mer- 
chants, for  instance — may  be  used  in  a  new,  peculiar  or  technical  sense ; 
and  therefore,  in  a  few  instances,  evidence  may  be  received,  from 
those  who  are  conversant  with  such  branches  of  business,  and  such 
technical  or  peculiar  use  of  language,  to  explain  and  illustrate  it.  One 
of  the  strongest  of  these,  perhaps,  among  the  recent  cases,  is  the  case 
of  Smith  V.  Wilson,  3  Barn.  &  Adolph.  728,  where  it  was  held,  that  in 
an  action  on  a  lease  of  an  estate  including  a  rabbit  warren,  evidence  of 
usage  was  admissible,  to  show  that  the  words  "thousand  of  rabbits" 
were  understood  to  mean  one  hundred  dozen,  that  is,  twelve  hundred. 
But  the  decision  was  placed  on  the  ground  that  the  words  "hundred," 
"thousand,"  and  the  like,  were  not  understood,  when  applied  to  particu- 
lar subjects,  to  mean  that  number  of  units;  that  the  definition  was  not 
fixed  by  law,  and  therefore  was  open  to  such  proof  of  usage. 

Though  it  is  exceedingly  difficult  to  draw  the  precise  line  of  dis- 
tinction, yet  it  is  manifest  that  such  evidence  can  be  admitted  only 
in  a  few  cases  like  the  above.  Were  it  otherwise,  written  instruments, 
instead  of  importing  certainty  and  verity,  as  being  the  sole  repository 
of  the  will,  intent  and  purposes,  of  the  parties,  to  be  construed  by 
the  rules  of  law,  might  be  made  to  speak  a  very  different  language, 
by  the  aid  of  parol  evidence.  The  instruction,  in  this  case,  was  cau- 
tiously expressed  and  guarded. 

As  to  the  second,  the  instruction  was  sufiiciently  liberal  for  the  de- 
fendants. In  a  conveyance  of  title,  deeds  must  be  construed  ac- 
cording to  the  language;  and  if  the  town,  when  they  owned  the  land, 
took  materials  not  coming  within  the  description  of  "gravel  and  sand," 


Sec.  2)  AIDING  CONSTRUCTION  1053 

as  they  well  might  do,  to  mend  their  highways — as  paving  stones,  or 
materials  for  macadamizing — but  chose  to  rnake  their  reservation  in 
narrower  terms,  they  must  abide  by  it,  and  cannot  enlarge  it  by  show- 
ing such  former  usage.  But,  construed  according  to  the  subject  mat- 
ter, we  are  to  presume  that  the  evidence  was  admitted,  to  operate  to 
this  extent  only,  namely,  that  it  might  tend  to  show  that  all  such  mate- 
rial as  had  been  used  as  gravel,  to  spread  upon  the  surface  of  the  roads, 
in  the  usual  mode  of  covering  roads  made  of  earth  and  gravel  only,  was 
in  the  contemplation  of  these  parties,  and,  to  that  extent,  to  show  what 
they  regarded  as  gravel. 

Whether  the  jury  drew  the  right  conclusion  from  the  evidence,  we 
have  no  means  of  knowing;  the  evidence  not  being  reported.  We  were 
referred  to  the  declaration  for  a  description  of  the  material  which  was 
Actually  dug  and  carried  away ;  but  whether  the  proof  fully  came  up  to 
the  averment,  we  do  not  know.  This  is  an  action  of  trespass,  and  con- 
cludes no  right.  If  the  verdict  was  against  the  evidence,  the  parties 
will  have  an  opportunity  to  test  the  question  again  in  a  new  action. 

Judgment  on  tlie  verdict. 


NICHOL  v,  GODTS. 
(Court  of  Exchequer,  1854,    10  Exch.  191.) 

At  the  trial,  before  Parke,  B.,  at  the  London  Sittings  in  the  pres- 
ent Term,  it  appeared  that  the  plaintiff  had  sold  to  the  defendant, 
through  his  broker,  a  quantity  of  rape  oil  in  the  ordinary  way  by 
bought  and  sold  notes.     The  sold  note  was  in  the  following  terms : 

"London,  31st  January,  1854. 

"Sold  this  day,  for  Messrs.  A.  Nichol  &  Sons,  to  Mr.  U,  A.  Godts, 
the  five  undermentioned  parcels  foreign  refined  rape  oil,  being  about 
thirty-tliree  tons  (little  more  or  less),  warranted  only  equal  to  samples 
at  £35.  per  ton." 

At  the  time  of  the  sale  samples  of  the  oil  were  delivered  to  the  de- 
fendant, and,  according  to  the  plaintiff's  evidence,  the  defendant  was 
told  that  tlie  oil  was-  mixed  to  a  certain  extent  with  other  oil,  and  for 
that  reason  it  was  sold  only  equal  to  the  samples.  The  defendant  had 
accepted  part  of  the  oil  that  had  been  delivered  in  performance  of  the 
agreement,  but  had  refused  to  take  the  residue,  on  the  ground  that  it 
was  not  foreign  refined  rape  oil,  but  a  mixture  of  hemp  and  rape  oil. 
The  oil  tendered  corresponded  with  the  samples  given,  which  consisted 
of  rape  oil  adulterated  with  hemp  oil.  On  the  part  of  the  plaintiff,  it 
was  admitted  that  the  oil  was  not  foreign  refined  rape  oil ;  but  it  was 
contended  that  the  oil  was  known  in  the  market  as  such.  And  upon 
this  point  evidence  was  adduced  on  both  sides.  It  was  also  contended, 
on  the  part  of  the  plaintiff,  that,  as  the  oil  was  sold  by  samples,  the 
defendant  was  bound  to  accept  the  oil,  as  it  corresponded  with  the 
sampled. 


1054  THE  "parol  evidence"  rule  (Ch.  7 

The  learned  Judge  told  the  jury  that  the  statement  in  the  sold  note 
as  to  the  samples  related  to  the  quality  only  of  the  article;  and  that 
according  to  the  contract  the  defendant  was  entitled  to  have  rape  oil 
delivered  to  him,  unless  the  plaintiff  could  show  a  distinct  usage  in  the 
oil  trade  by  which  the  words  "rape  oil"  are  understood  to  mean  a  mix- 
ture of  rape  and  hempseed  oil;  and  that  the  only  question  for  them 
was,  whether  the  plaintiff  had  proved  such  a  custom.  The  jury  found 
a  verdict  for  the  defendant,  at  the  same  time  accompanying  their  ver- 
dict with  the  statement  that  they  did  so  solely  on  the  ground  that  by 
the  wording  of  the  contract  the  plaintiff  was  legally  bound  to  deliver 
rape  oil,  and  that  they  considered  tliat  the  defendant  well  knew  what 
he  was  buying. 

Watson  now  moved  for  a  rule  nisi  for  a  new  trial,  on  the  ground 
■of  misdirection.^" 

Pollock,  C.  B.  This  is  an  apphcation  for  a  new  trial,  on  the 
ground  of  supposed  misdirection  by  my  Brother  Parke ;  and  I  am  of 
opinion  that  there  ought  to  be  no  rule.  The  question  turns  upon  the 
meaning  of  certain  words  in  the  contract,  by  which  the  plaintiff  sold  a 
quantity  of  oil  to  the  defendant ;  and  the  question  is,  whether  the  de- 
fendant was  bound  to  take  and  pay  for  the  oil  which  the  plaintiff 
delivered  to  him,  and  which  the  latter  refused  to  accept.  The  impor- 
tant words  in  the  contract  are  these:  "foreign  refined  rape  oil,  war- 
ranted only  equal  to  samples."  My  Brother  Parke  told  the  jury  that, 
according  to  the  true  construction  of  this  contract,  not  only  the  article 
delivered  must  agree  with  the  samples  in  quality,  which  was  the  mean- 
ing of  the  words  "warranted  only  equal  to  samples,"  but  also  that  the 
oil  ought  to  agree  with  the  description  of  it  in  the  contract  as  to  its 
character.  It  was  contended  by  Mr.  Watson  that  the  expression  "war- 
ranted only  equal  to  samples"  excluded  every  other  description  of  war- 
ranty; and,  provided  the  oil  dehvered  was  equal  to  the  samples,  that 
was  sufficient  to  render  the  defendant  liable  to  take  it  and  pay  for  it, 
although,  in  point  of  fact,  it  did  not  answer  the  description  of  being 
foreign  refined  rape  oil.  The  effect  of  that  argument  is,  to  render  the 
words  "foreign  refined  rape  oil"  of  no  avail.  Such  a  proposition  can- 
not be  supported.  I  think  the  direction  was  perfectly  correct;  for, 
as  my  Brother  Piatt  observed,  it  could  not  be  contended  that,  if  it 
had  turned  out  that  the  oil  was  whale  oil,  the  contract  would  have  been 
performed.  By  the  terms  of  this  contract,  it  must  be  taken  that  the 
plaintiff  agreed  to  deliver  foreign  refined  rape  oil,  and  not  that  he  pro- 
fessed to  sell  any  oil  whatever.  Mr.  Watson  then  contended,  that,  as 
between  the  parties  themselves,  the  samples  were  oil  which  was  un- 
derstood by  them  as  being  foreign  refined  rape  oil ;  and  witnesses  were 
called  to  show  that  such  was  the  understanding  between  these  parties. 
But  the  contract  must  be  read  according  to  what  is  written  by  the  par- 

ofl  The  statement  of  the  pleadings  and  opinions  of  Piatt,  Martin,  and  Parke, 
BB.,  omitted. 


Sec.  2)  AIDING  CONSTRUCTION  1055 

ties,  for  it  is  a  well-known  principle  of  law,  that  a  written  contract  can- 
not be  altered  by  parol.  If  A.  and  B.  make  a  contract  in  writing, 
evidence  is  not  admissible  to  show  that  A.  meant  something  different 
from  what  is  stated  in  the  contract  itself,  and  that  B.  at  the  time  as- 
sented to  it.  If  that  sort  of  evidence  were  admitted,  every  written 
document  would  be  at  the  mercy  of  witnesses  that  might  be  called  to 
swear  anything.  My  Brother  Parke  was  quite  correct  in  telling  the 
jury  that,  if  they  were  satisfied  that  the  plaintiff  had  established  the 
fact,  that,  by  the  general  usage  of  persons  dealing  in  this  particular 
article,  the  oil  in  question  was  denominated  foreign  refined  rape  oil, 
the  plaintiff  would  be  entitled  to  the  verdict.  The  jury  found  for  the 
defendant,  adding,  however,  that  the  defendant  knew  what  he  was 
buying.  The  case  therefore  resembles  that  which  I  have  already  put, 
viz.,  that  a  written  contract  cannot  be  contradicted  by  evidence  of  the 
meaning  which  the  parties  allege  that  they  themselves  attach  to  its 
words. 

Rule  refused. 


MacDONALD  et  al.  v.  LONGBQTTOM. 
(Court  of  Queen's  Bench,  1859.    1  El.  &  El.  977.) 

Assumpsit  for  the  breach  of  a  contract  to  accept  and  pay  for  certain 
wool  alleged  to  have  been  bargained  and  sold  by  plaintiff's  to  de- 
fendant. 

On  the  trial,  before  Byles,  J.,  at  the  last  Liverpool  Spring  Assizes, 
it  appeared  that  the  plaintiffs  were  farmers  in  Scotland,  and  the  de- 
fendant was  a  wool  stapler  in  Liverpool,  whose  agent  for  purchasing 
wool  in  Scotland  was  a  Mr.  Stewart,  residing  in  Perth.  In  August, 
1857,  the  younger  Macdonald  called  upon  Stewart  and  told  him  that 
they  had  a  quantity  of  wool,  part  of  which  was  their  own  clip,  and 
then  on  their  own  farm,  and  part  the  clips  of  the  same  year  of  some 
neighbourmg  farms,  not  then  on  the  plaintiffs*  premises :  that  the  whole 
quantity  amounted  to  2300  stones  100  stones  more  or  less :  and  offered 
the  whole  to  Stewart  for  sale.  On  19th  August,  Stewart  wrote  to 
Macdonald,  saying,  "I  have  a  letter  from  Mr.  Longbottom  (the  de- 
fendant), who  says,  T  will  take  Mr.  Macdonald's  wool  at  16s.'" 
Macdonald  then  wrote  to  Stewart,  on  26th  August,  a  letter  which, 
after  stating  that  two  of  the  small  clips  had  been  sold,  proceeded  as 

follows : 

"With  regard  to  our  own  wool,  I  may  state  that  I  have  succeeded 
in  getting  a  promise  of  another  superior  clip  in  this  neighbourhood 
which  would  stand  about  550  stones ;  it  is  as  good  as  the  Bialliol  wool ; 
it  will  go  along  with  my  other  wool."  On  5th  September,  Stewart 
wrote  to  him  as  follows:  "I  wrote  you  1st  instant,  enclosing  letters 
from  Mr.  Longbottom,  and,  not  having  received  your  reply,  I  beg  to 
state  that  I  have  heard  from  him  to-day,  and  he  now  desires  me  to  offer 


1056  THE  "parol  evidence"  rule  (Ch.  7 

you  for  your  wool  16s.  per  stone,  delivered  in  Liverpool,  less  two 
months'  discount,  and  as  there  is  now  so  little  between  you,  I  hope  to 
receive  vour  acceptance  of  the  above  offer  in  due  course. 

"[Signed]     William  Stewart." 

To  this  letter  Macdonald  replied  as  follows: 

"Strashmastie,  8th  September,  1857. 

"Dear  Sir.  I  yesterday  received  your  favour,  and  in  reply  beg  to 
say  that  I  agree  to  your  offer  for  the  wool  of  16s.  per  stone,  less  two 
months'  discount,  at  the  rate  of  £5.  per  cent.,  for  ready  money." 

"[Signed]     Macdonald,  Jun." 

On  27th  November  the  plaintiffs  shipped  to  the  defendant  at  Liv- 
erpool the  whole  of  the  wool  they  had  for  sale,  including  that  which 
belonged  to  the  plaintiffs'  own  clip,  and  that  which  they  had  got  from 
the  other  farmers,  the  whole  amounting  to  2542  stones.  The  defend- 
ant, on  its  being  tendered,  refused  to  accept  it,  on  the  ground  that 
there  had  been  unreasonable  delay  in  the  shipment.  No  evidence  was 
given  at  the  trial  that  he  had  made  any  objection  that  the  wool  shipped 
was  not  what  he  had  contracted  to  purchase. 

The  learned  Judge  ruled  that  the  evidence  of  the  conversation  which 
Macdonald,  Jun.,  had  had  with  Stewart  before  the  letters  of  5th  and 
Sth  September  was  inadmissible  for  the  purpose  of  explaining  what 
was  the  wool  referred  to  in  those  letters.  The  plaintiffs  were  non- 
suited, leave  being  reserved  to  enter  a  verdict  for  them  for  the  amount 
claimed,  if  the  Court  should  be  of  opinion  that,  without  such  evi- 
dence, or  with  it  if  admissible,  there  was  sufficient  evidence  of  a  con- 
tract which  bound  tlie  defendant  to  accept  the  wool  tendered.  In 
order  to  obviate  the  necessity  for  a  new  trial  in  such  case,  the  issue 
of  fact,  as  to  whether  the  wool  was  tendered  within  a  reasonable  time 
was  submitted  to  the  jury,  who  found,  on  such  issue,  a  verdict  for  the 
plaintiffs. 

Monk,  in  last  Easter  Term,  obtained  a  rule  to  show  cause  why  the 
nonsuit  should  not  be  set  aside,  and  a  verdict  entered  for  the  plaintiff's 
on  the  ground  that  there  was  a  sufficient  contract  in  writing,  and  also 
on  the  ground  of  improper  rejection  of  evidence.^^ 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  our  judgment  should 
be  for  the  plaintiffs.  The  letters  of  5th  and  8th  September  constitute 
a  complete  contract,  within  the  Statute  of  Frauds,  between  the  plain- 
tiffs and  the  defendant,  through  his  agent,  Stewart.  This  was  an 
offer  made  to  the  plaintiffs,  and  accepted  by  them,  of  16s.  per  stone 
for  "your  wool,"  to  be  delivered  in  Liverpool.  The  only  question, 
therefore,  is,  what  was  the  subject-matter  of  the  contract,  described  as 
"your  wool"?  I  am  of  opinion  that,  when  there  is  a  contract  for  the 
sale  of  a  specific  subject-matter,  oral  evidence  may  be  received,  for 
the  purpose  of  showing  what  that  subject-matter  was,  of  every  fact 

15  1  Tho  .statement  of  the  pleadings  has  been  condensed  and  opinions  of 
Wlghtman  and  Earle,  JJ.,  are  omitted. 


Sec.  2)  AIDING  CONSTRUCTION  1057 

within  the  knowledge  of  the  parties  before  and  at  the  time  of  the  con- 
tract. Now  Stewart,  the  defendant's  agent,  had  a  conversation  be- 
fore the  contract  with  one  of  the  plaintiffs,  who  stated  what  wool  he 
had  on  his  own  farm,  and  what  he  had  bought  from  other  farms.  The 
two  together  constituted  his  wool ;  and,  with  the  knowledge  of  these 
facts,  the  defendant  contracts  to  buy  "your  wool."  There  cannot  be 
the  slightest  objection  to  the  admission  of  evidence  of  this  previous 
conversation,  which  neither  alters  nor  adds  to  the  written  contract,  but 
merely  enables  us  to  ascertain  what  was  the  subject-matter  referred  to 
therein.  Then  comes  the  question,  whether  the  contract  is  to  be  lim- 
ited to  the  2300  stones,  100  stones  more  or  less,  which,  in  the  course 
of  this  conversation,  one  of  the  plaintiffs  stated  was  the  amount  of 
the  whole  of  the  wool.  I  am  of  opinion  that  it  is  not  to  be  so  limited. 
There  was  no  contract  entered  into  at  the  time  of  this  conversation : 
and,  when  the  defendant  ultimately  agrees  to  purchase  the  wool,  no 
reference  is  made  to  the  quantity.  The  statement  of  the  quantity  at 
the  time  of  the  conversation  was  a  mere  expression  of  opinion,  and 
did  not  affect  the  actual  contract  at  all.  Then,  is  it  to  be  said  that 
the  letter  of  5th  September  is  to  be  taken  as  embodying  the  condition 
that  the  .wool  shipped  shall  not  exceed  that  quantity  ?  The  agreement 
then  is  to  take  "your  wool,"  tale  quale ;  and  I  think  we  cannot  intro- 
duce any  limitation  of  the  quantity.  On  the  evidence,  it  seems  clear 
that  the  defendant  rejected  the  wool,  not  on  account  of  any  excess, 
but  because  the  market  had  fallen  in  the  mean  time.''^ 
Rule  absolute." 


TRUSTEES  OF  FREEHOLDERS  AND  COMMONALTY  OF 
TOWN  OF  SOUTHAMPTON  v.  JESSUR 

(Court  of  Appeals  of  New  York,  1903.    173  N.  T.  84,  65  N.  E.  949.) 

The  judgment  of  the  trial  court  restrains  the  defendant  "from  dig- 
ging, excavating,  embanking,  or  otherwise  disturbing  the  lands  under 
the  waters  of  the  Great  South  Bay  at  or  adjacent  to  Potunk  Point,  de- 
scribed in  the  complaint,  for  the  purpose  of  making  a  solid  roadway 
or  embankment,  and  from  substituting,  for  the  wooden  bridge  or  struc- 
ture supported  on  piles,  which  the  defendant,  Nathan  C.  Jessup,  has 
built  across  said  Great  South  Bay  at  or  near  said  Potunk  Point  (or 
for  any  part  thereof),  the  solid  embankment  of  earthen  materials, 

62  See  Stoops  v.  Smith,  100  Mass.  63,  1  Am.  Rep.  85.  97  Am.  Dec.  76  (ISOS), 
where  prior  negotiations  were  resorted  to  for  the  same  purpose.  In  Harten 
V.  Loffler,  212  U.  S.  397,  29  Sup.  Ct.  351,  53  L.  Ed.  568  (1909),  the  oral  negotia- 
tions were  admitted  to  show  that  a  contract  for  the  sale  of  a  piece  of  prop- 
erty described  as  "fronting  about  sixty  feet,"  etc.,  embraced  the  entire  lot, 
which  had  a  frontage  of  over  eighty  feet. 

5  3  This  ruling  was  aflBrmed  by  the  Exchequer  Chamber,  1  EL  &  EL  987 
(1860). 

HiNT.Ev.— €7 


3  058  THE  "parol  evidence"  rule  (Ch.  T. 

across,  over,  or  through  said  Great  South  Bay  or  any  part  of  said  bay."; 
The  appellate  division  affirmed  this  judgment  by  a  divided  vote,  and  the 
defendant  appealed  to  this  court.^* 

Vann,  J.  On  the  2d  of  June,  1888,  the  plaintiffs  adopted  a  resolu- 
tion, of  'which  the  following  is  a  copy :  "Resolved,  that  Nathan  C. 
jessup  be  and  is  hereby  given  liberty  to  make  a  roadway  and  to  erect 
a  bridge  across  the  Great  South  Bay,  commencing  at  the  south  point  of 
Potunk  Neck ;  thence  running  southerly  to  the  beach,  the  said  bridge 
to  be  a  drawbridge  of  a  width  of  not  less  than  twenty  feet,  the  height 
above  the  meadow  three  feet,  and  the  draw  to  be  twenty  feet  wide, 
and  the  said  Nathan  C.  Jessup  shall  not  cause  any  unnecessary  delay 
to  those  navigating  the  waters  of  said  bay."     *     *     * 

Upon  the  trial  now  under  review,  parol  evidence  was  received  tending 
to  show  that  both  parties  intended  that  the  roadway  should  be  of  wood, 
and,  although  some  of  the  trustees  themselves  gave  evidence  to  tlie 
contrary,  the  trial  judge  held  "that  it  was  the  intention  of  the  parties 
that  the  defendant  should  have  permission  to  build  a  road-bridge  across 
the  bav,  and  that  he  has  no  right  to  build  a  solid  roadway  in  any  part 
of  the  bay."  This  evidence  appears  to  have  been  received  and  made 
the  basis  of  the  present  judgment,  because  we  stated  in  our  previous 
opinion  that  we  had  searched  the  record  to  see  if  there  was  any  evi-- 
dence,  aside  from  the  resolution  itself,  bearing  upon  the  intention  of 
the  parties.  We  said  this  because  the  trial  court  had  found,  in  the 
record  then  before  us,  "that  it  was  the  intention  of  said  trustees  and  of 
the  defendant  that  there  should  be  constructed  a  roadway  built  of 
timber  upon  piles  driven  into  the  mud  and  water."  Our  object  was  to 
show  that  the  finding  was  without  evidence  of  any  kind,  good  or  bad, 
to  support  it,  but  not  to  sanction  the  introduction  of  parol  testimony  to 
add  something  to  the  resolution  which  the  parties  had  failed  to  insert. 
Some  evidence  of  tliis  character  had  been  received  on  that  trial,  with- 
out objection,  and  we  said,  arguendo,  that,  even  "assuming  it  to  be  ad- 
missible, [it]  showed  that  the  defendant  wished  to  build  a  solid  road- 
way on  the  south  side,  such  as  he  had  already  built  on  the  north  side." 
Regretting  that  our  language  should  have  misled  the  courts  below,  we 
will  now  consider  whether  such  evidence  was  admissible  under  the  cir- 
cumstances of  this  case. 

The  franchise  in  question  is  a  contract  in  writing,  which  cannot  be 
varied  by  parol  evidence,  although,  if  there  is  an  ambiguity  arising 
out  of  the  terms  employed,  such  evidence  may  be  received,  not  to  vary 
the  instrument,  but  to  enable  the  court  to  appreciate  the  force  of  the 
words  used  in  reducing  the  agreement  to  writing.  Thomas  v.  Scutt, 
127  N.  Y.  133,  27  N.  E.  961 ;  Stowell  v.  Insurance  Co.,  163  N.  Y. 
298,  57  N.  E.  480.  Parol  evidence  can  neither  add  to  nor  take  from 
the  contract,  but  it  can  aid  in  interpreting  a  word  or  expression  of 
ambiguous  meaning  by  showing,  through  the  circumstances  surround- 
ed statement  condensed  and  part  of  opinion  omitted. 


Sec.  2)  AIDING  CONSTRUCTION  1059 

ing  the  parties  when  their  minds  met  and  the  language  used  by  them 
at  die  time,  the  sense  in  which  the  doubtful  language  was  employed. 
"It  is  received  where  doubt  arises  upon  the  face  of  the  instrument  as 
to  its  meaning,  not  to  enable  the  court  to  hear  what  the  parties  said, 
but  to  enable  it  to  understand  what  they  wrote  as  tliey  understood  If 
at  the  time.  Such  evidence  is  explanatory,  and  must  be  consistent  with 
the  terms  of  the  contract,"  Thomas  v.  Scutt,  supra,  citing  Dana  v. 
Fiedler,  12  N.  Y.  40,  62  Am.  Dec.  130;  Collender  v.  Dinsmore,  55 
N.  Y.  202,  14  Am.  Rep.  224;  Newhall  v.  Applcton,  114  N.  Y.  140,  21 
N.  E.  105,  3  L.  R.  A.  859;  Smith  v.  Clews,  114  N.  Y.  190,  21  N.  E. 
160,  4  L.  R.  A.  392,  11  Am.  St.  Rep.  627.  So,  Mr.  Wharton  says: 
"We  are  restricted,  therefore,  to  the  interpretation  of  the  language 
used,  and  proof  of  intention  is  only  admissible  when,  in  cases  of  am- 
biguity, proof  of  intention  enables  us  to  discover  what  the  language 
means.  *  *  *  'I'he  contract  cannot  be  varied ;  its  obscure  expres- 
sions may  be  explained,  but  this  is  for  the  purpose  not  of  molding, 
but  of  developing,  the  true  sense."  2  Whart.  Ev.  §§  937,  946.  See, 
also,  1  Greenl.  Ev.  §  275 ;  Underbill,  Ev.  Z2Z ;  Rice,  Ev.  §  170. 

What  ambiguous  word  or  expression  of  doubtful  meaning  is  there 
in  the  resolution  relating  to  the  material  out  of  which  the  roadway 
was  to  be  constructed?  None  whatever,  for  the  writing  is  silent  upon 
the  subject.  The  defendant  was  given  liberty  to  make  a  roadway,  but 
nothing  was  said  as  to  how  it  should  be  made  or  what  it  should  be 
made  out  of.  An  ambiguity,  in  order  to  authorize  parol  evidence, 
must  relate  to  a  subject  treated  of  in  the  paper,  and  must  arise  out 
of  words  used  in  treating  that  subject.  Such  an  ambiguity  never  arises 
out  of  what  was  not  written  at  all,  but  only  out  of  what  was  written 
so  blindly  and  imperfectly  that  its  meaning  is  doubtful.  Nothing  is 
said  in  the  resolution  before  us  upon  the  subject  of  the  material  to  be 
used,  or  the  method  to  be  employed,  in  making  the  roadway,  and  hence 
there  is  no  ambiguity  arising  out  of  the  words  used  with  reference  to 
that  subject.  Witnesses  cannot  be  permitted  to  swear  something  Into 
the  instrument  which  neither  explains  nor  interprets  any  language  used 
therein.  They  cannot  swear  a  wooden  roadway  into  a  franchise  which 
is  silent,  even  to  the  exclusion  of  implication,  as  to  the  substance  out 
of  which  the  roadway  is  to  be  made.  That  would  be  making  a  new 
contract  instead  of  explaining  an  old  one,  and  would  violate  the  prin- 
ciple upon  which  parol  evidence  is  received,  to  aid  in  interpreting  an 
ambiguous  word  or  expression.  Since  the  plaintiffs  gave  tlie  defendant 
the  right  to  make  a  roadway,  but  did  not  restrict  him  to  the  use  of 
wood,  he  was  not  obliged  to  use  wood.  As  we  held  on  the  last  apjoeal : 
"In  the  absence  of  specifications  in  the  grant,  the  defendant  had  the 
right  to  make  a  roadway  out  of  the  materials  in  common  use  for  the 
construction  of  roads,  such  as  earth  and  stone." 

We  think  the  evidence  was  not  admissible  for  any  purpose,  and,  as 
that  part  of  the  judgment  which  restrains  the  defendant  from  making  a 
solid  roadwav  rests  wholly  upon  this  incompetent  testimony,  it  shouH 


lOGO  TiiK  "r'AUor,  icvrDKNcn;"  luir-in  (Ch.  7 

not  he  allowod  to  sI.iihI.  'Pli.if  pait  of  the  jiul^^nncnt,  however,  which 
restrains  the  defendant  from  di^fj^in^  \\\)i>\\  Ihc  lands  of  ihc  ])laintiffs 
in  ordrr  to  ohfain  materials  to  maUe  the  roadway,  does  not  rest  upon 
parol  evidence,  hnt  upon  the  resolution  its(!lf.  It  is  not  claimed  that 
the  defendant  ever  received  permission  from  the  plainlilTs  to  dip  earth 
from  their  lands  for  the  purpose  of  the  roadway,  except  throuj^h  the 
resolution.  As  no  e\|)ress  permission  appears  therein,  the  oidy  (|ues- 
tion  is  whether  sih  h  a  rijdit  may  he  fairly  iini>hed  from  tlu'  ti'rms  of 
the  resolution.  We  (Ind  uotliin;^  fmm  which  such  .an  implication  can 
ai"ise.  It  is  ohvious  thai  the  defendant  was  to  fmnish  his  own  ma- 
terials for  the  roadway,  the  same  as  he  was  for  the  hridL;e.  The  fact 
that  it  would  In-  very  convenient  for  him,  and  hut  sli,i;htly,  if  at  all,  in- 
convenient to  the  pl.iinliDs,  if  he  thus  ohtaiued  his  materials,  does 
not  wairaiit  tlie  iiiiplii  .ition  lliat  lliey  !;'r;uited  him  the  ])rivilej;'C.  Wc 
thiiiK  he  had  no  livlit  to  dij^  upon  their  lands  for  that  purpose. 

(  )m'  coiiclusion  is  that  the  judi^Muents  helow  should  he  modihed  hy 
strikiuj.;  out  that  part  of  the  injmiction  which  restrains  the  defendant 
fioui  makiui;  a  solid  roadway,  and  that,  as  thus  modified,  they  should 
be  alliiined,  without  costs  of  this  appeal  to  either  party. 

TaukiIK'.  C  }.,  and  C.kav  and  ()'r.ini;N.  ||.,  concur.  TIaiCIIT  and 
('lu.ii'N,  II.,  \dle  for  atlii  iii.iiH  ('.      1' A KTi.ivT'r,  J.,  dissents. 

I  M(!;;uieuts   modilied. 


luicKiU'.i':  V.  I'.  iu)iii':NAnh:iv,  jr.,  co. 

(ClreiiK    Courl    «•!'   Ai)iieal.s  ol'   tlic    United    SlnleH,   Seveiitli  Circuit,    li)ir>.      2124 
Ke.i.    II,    i:m  C.  C.  A.    ITS,   h.    K.   A.    I'.HliC^  JOOl,  Anil.  CUS.  IDlSlt,  SS.) 

vSi'AMAN.  C'ircuil  Iud;;i'.'*'^  The  judf^iuiait  against  the  defciulant  he 
Jow,  plaiutill  in  ei  ror  Ihickhi'c,  arose  under  his  contracts  for  sale  and 
delivery  to  the  planitill  corpoi  .itiou,  I'.  1  lolieuadel,  Jr.,  C'oiupany,  of 
cucmuher  seed  of  speiilied  varii-ly,  and  the  verdict  in  favor  of  the 
plaintilV  (directed  hy  the  trial  court)  awartis  recovery  pmsuant  to  two 
propositions,  in  suhstance:  (1)  That  the  evidence  estahlishcs  delivery 
of  a  dilfeicnt  vaiicty  of  seed,  not  adapted  to  the  purjiose  contemplated 
hv  the  coiUi.icI  ;  and  (2)  that  datiia^es  are  proven  and  rccoverahle  for 
the  dilleieiice  in  iiiaiket  \aliu-  hetweeu  the  »'rops  |)rodiiccd  from  the 
seed  so  delivered  .iiid  such  crops  as  the  variety  of  seed  specilied  in  the 
contracts  wonkl  have  prodnceil  under  like  conditions.  [After  hokliuj^ 
that  the  rcupicsts  to  direct  the  verdict  operated  to  suhmit  the  facts  to 
the  com  t  :  | 

•I.  Assij^nments  of  lu  ror,  howi-xcr.  for  rejecti(^n  of  testimony  olTer- 
ed  oil  hell. ill  of  llu'  dcfiiulaiil,  r.iise  tjueslions  of  vital  impor- 
tance.      ♦     ♦     ♦ 

"P  Stalciiietit   1)11(1   pnrf  of  «)ii1iilon  oniKlcil. 


Sec.  2)  AIDING   rONSTIlUCTION  lOCl 

Understand inp;'  of  tlie  force  of  these  ofTers  ""  requires  reference  to 
the  followinp^  antoccdont  mailers  of  record:  H^lic  one  contract  in  snit 
named  the  subject  matter  thereof  as  "300  pounds  cucuniher  Chicaf^o 
Pickle,"  while  the  second  contract  named  3.S{X)  pounds  "cucinnher 
seed,  Improved  Chicago  Pickdin^'."  On  the  part  of  the  plaintid'.  the 
contentions  were  (as  state<l  in  its  brief),  that  one  Weslerfield  bad  de- 
veloped, long;  prior  to  the  contracts,  "a  certain  variety  of  cucumbers, 
which  are  especially  desirable  for  picklinjj^  ])urposes,"  as  described; 
that  eventually  "production  of  this  type  of  cucumber  re  tilled  in  the 

'■'"  Tlie  (icrciidiiiit's  ofTcr  wiis  to  jirovc  l)y  Itie  vvKiwss  .lolm  'l\  MikUImt, 
"(hat  at  tlie  time  of  tlje  ncK<>liiiti(MiM  for  uiul  the  iniiUliij;  of  flic  coiilracf  of 
October  23,  190.'{,  ooveriii)?  tlio  .'{,500  pourulH  of  oueuiiiltcr  HccdH  and  other 
seeds,  made  jit  JaiieHvUle,  Wis..  Mint  (he  Nninph's  of  Wcslcrdchl  (!hlciiKo 
IMcklft  eucnnihcr  ycvd  were  pn'scnicd  I)y  hliii  lo  Mr.  I  lolicrmdcl  ;  (liiif  n  hiiim- 
I>1(;  of  tlio  seed  whidi  I'.iickhco  waH  Iheii  Jidvcrllshi;^  In  Ids  r)i(nlo><ii(!  of  I!l0.! 
us  Improved  (^IdciiKo  I'ickllu};  wuh  iJrcHCMilcd  ;  tiiuL  thl.s  hillcr  Hccd  wuh  Die 
seed  developed  hy  r.iicUhee,  defVinhint,  from  tlie  seed  earlier  p(in-hiiH(!d  by 
him  from  the  Haskell  Seed  (%iiiip!iiiy  of  Roikford,  III.,  which  wuh  ^;oln^,'  oiif. 
of  hiisiiiesH;  that,  tlu;  i)rice  (piolcd  lo  Mr.  I  loliciiiidcl  on  Hie  VVcHlcrdcId  Ohl- 
cn^o  rickle  (MKMimhcr  st'cd  was  Sf)  ccnlH  per  |)oimd  ;  Hint,  the  |)rlce  (pioled  on 
the  otlier  Hec(J  was  70  cents  p('r  j)onnd  ;  that  t\H>  witness  told  lo  Mr.  lloh(!n- 
adel  the  history  of  the  Reed  secured  from  Ilnskell  nnd  ndvertlHed  hy  Binkhee 
HS  Tm[)roved  Clilcjij^o  ricklliiK;  that  his  Informallon  was  Ihiil  II  hiid  hccn 
devcIojM'd  from  the  K:im(!  orlf,'inal  slock  from  which  (lie  VVcslcrllcld  hiid  hccn 
develop(!(l ;  that  the  witness  dcscrllK-d  to  Mr.  Ilohcnndcl  the  kind  of  ciicnm- 
l)er  that  it  would  raise  in  th(?  i)lckllnK  staj^t;,  and  descrihed  It  as  Homcwhat 
tliieker  and  il^hter  shade  than  the  Westerneld  ('hieaKo  IMckh;  eueiimhcr; 
tliiit  Mr.  Ilohcnadfrl  asked  Iho  witness  what  thoy  called  it;  that  the  wllncHH 
told  liim  that  they  wer((  advcrllshiK  It  as  Inijirovcd  (^hlca^o  I'lcklln^  cucum- 
l)er  seed;  that  the  witness  told  l:lni  that  they  laid  ^rown  this  seed  them- 
selves, Buekhee  KrowiiiK  the  scH'd,  and  tlie  (piantlty  they  had;  tinit  there  was 
further  conversation  in  regard  to  other  Hceds  not  involved  in  this  Hult  hut 
eoveri'd  hy  the  contract;  tliat  tliereiipon  Mr.  Ilohcnadel  dhtnted  and  had 
written  hy  his  sl(!nof<rai)lier  and  lypevvrllcr  the  contract  of  Oclober  li.''.,  r.)(».''.. 
In  evidence;  that,  previous  to  dh'tatluK  that,  Mr.  HolK'nadel  had  Htate<l  that 
he  would  take  .'{.nOO  jtounds  of  that  seed;  that  they  would  iah<!l  it  in  the 
contract  'lmf)roved  ('hlca^o  I'lcklliiK';  tliat  that  name  was  Inserted  in  the 
contract  hy  Mr.  Ilohcnadel,  and  It  was  agreed  between  the  witness  and  Mr. 
IIohenad(!l  that  the  sc^ed  was  develojied  from  the  seed  ijurchased  from  the 
Uask(!ll  Seed  (>)mi)any,  and  sliould  he  delivftnjd  under  th(>  <ontract;  that  Mr. 
Ilohenadel  re<pjested  in  tlie  sanu!  conversation  that  .'500  pounds  covered  hy  tlie 
contract  of  October  17,  IDO.*'.,  should  he  tilled  with  the  sanM!  kind  of  seed; 
that  the  '.i,H()(>  [iounds  of  this  kind  of  seed  was  afterv/ards,  in  tlu-  latter  jtart 
of  Fehruary  or  (;arly  jiart  of  March,  shl])|)ed  to  lh(!  ilohenadel  peojiU?  under 
Hohenadel's  direction,  and  involc<td  to  th(.*m  as  iks"  invoices  in  evidenci;;  tliut 
afterwards,  and  durinj^  the  winter  of  th^^  season  f(j|lowlnK,  for  the  pnriiose  of 
testing  this  .seed  that  was  delivered  in  Fehruary  or  Marcli  to  Hohenadel,  (he 
witness  planl(!d  it  In  his  j^rcienliouse  and  testeil  it  for  t,'''''nilnallon  and  for 
quality;  that,  as  shown  hy  h.-tter  In  evidence,  Mr.  Hohenadel  was  notified  of 
this;  that  the  seed  that  was  Kerminat»!d  was  of  the  variety  delivered  to  Ilo- 
henadel; that  aft.(!r  the  plant  J^rew,  and  the  fruit  was  set  and  fully  devel- 
oped, sam[)les  of  It  were  s(!nt  to  Mr.  Hohenadel  previous  to  the  delivery  of 
the  seed;  that  at  that  time,  in  100;'>  aral  l!)OI,  the  wllnesH  knew  of  no  other 
strain  or  variety  or  kind  of  ciiciimher  seed  that  was  arivertlsed  or  beln^  hoM 
under  the  name  of  Improved  ('iAruKo  I'icklln;;.  Ah  a  part  of  Huch  offer,  and 
Identified  by  the  same  wItnesH,  jia^e  27  of  Uk:  IJucklK-e  catalogue  of  IDO.'J  wan 
offered  as  Hefendant's  Kxhlblt  2,  and  also  paKe  27  of  the  I'.uckhee  catalogue 
of  1001  was  offered  as  Ia;f(ii(|aiit's  lO.KlilMt  .'',.  coph-H  of  which  exhIhIlH  are  Met 
forih  and  included  In  the  hill  of  except Iohh  in  the  action." 


1062  THE  "parol  evidence"  rule  (Ch.  7 

sale  of  cucumber  seed,  called  Indifferently,  'Westerfield  Chicago 
Pickle,'  or  'Chicago  Pickle,'  or  'Improved  Chicago  Pickling'  " ;  and 
that  both  contracts  intended  such  "Westerfield"  variety  as  their  sub- 
ject-matter. Many  seedmen,  introduced  as  witnesses  in  support  of 
such  contention,  so  testified,  although  other  witnesses  upon  the  same 
side  testified,  in  substance,  either  otherwise  or  that  such  other  designa- 
tions of  the  Westerfield  variety  were  unknown  to  them  in  the  trade. 
Numerous  witnesses  (seedmen)  testified  on  the  part  of  the  defendant, 
in  substance,  that  the  contract  terms  were  not  understood  in  the  trade 
as  designations  of  the  Westerfield  variety.  By  way  of  foundation  for 
the  above  offer,  the  witness  Buckbee  had  been  interrogated  as  to  the 
negotiations  and  transactions  between  the  parties  on  October  23d,  when 
the  second  contract  was  made,  and  the  record  shows  extended  dis- 
cussion, both  on  the  part  of  court  and  counsel,  upon  the  admissibility 
of  testimony  embraced  in  the  subsequent  offer.  Thereupon  the  ruling 
of  the  court  excluded  the  testimony,  stating,  "Whatever  transpired 
prior  to  the  execution  of  the  written  contract  is  absolutely  immaterial," 
and,  in  substance,  tliat  it  must  be  excluded  as  violative  of  the  cardinal 
rule  against  varying  the  terms  of  the  contract  as  written.  For  preser- 
vation of  all  questions  raised  by  such  rulings,  the  trial  judge  suggest- 
ed the  making  of  the  offer  and  stated,  "Let  the  record  show  that  there 
is  no  objection  made  to  the  evidence  because  it  is  in  the  form  of  an 
offer,"  and  counsel  for  plaintiff  assented  to  such  entry. 

The  foregoing  immediate  circumstances  of  the  offer  are  material 
for  two  purposes:  (a)  As  evidence  that  all  substantial  questions  in- 
volved therein  were  duly  presented  and  entered  into  consideration  for 
the  ruling  to  exclude  the  testimony ;  and  (b)  that  it  clearly  meets  the 
objection  urged  by  counsel  for  plaintiff  (elaborately  discussed  in  the 
oral  argument  and  supplemental  briefs),  in  substance,  that  it  raises  no 
question  of  error  in  the  exclusion,  for  the  alleged  reason  that  the  offer 
embraces  matter  which  was  inadmissible  in  any  view  of  the  rejection 
of  other  matters  contained  therein,  and  is  thus  brought  within  the 
rule  that  rejection  by  the  trial  court  as  an  entirety  was  authorized  in 
the  absence  of  segregation  of  matters  so  embraced  therein.  ^  We  be- 
lieve the  record  is  sufficient  to  present  the  important  question  upon 
the  merits,  whether  the  defendant  was  deprived  of  substantial  rights 
by  such  exclusion. 

In  the  enforcement  of  contracts  which  have  been  reduced  to  writ- 
ing, either  in  formal  instruments  or  in  letters  or  memoranda  adopted 
between  the  parties,  one  of  the  most  frequent  questions  of  difficulty 
arises  out  of  tenders  of  proof  of  the  nature  described  in  the  above 
offer.  Issues  are  numerous  in  such  cases,  which  both  require  and 
authorize  proof  of  negotiations  and  attending  circumstances  out  of 
which  the  contract  grew,  either  for  identification  of  subject-matter  not 
sufficiently  described  in  the  writing,  or  for  interpretation  of  contract 
terms  which  are  ambiguous  or  uncertain  without  explanation  of  the 
sense  in  which  they  are  employed  in  the  contract.     Thus,  where  the 


Sec.  2)  AIDING   CONSTRUCTION  10G3 

writing  is  "expressed  in  short  and  incomplete  terms,  parol  evidence 
is  admissible  to  explain  that  which  is  per  se  unintelligible,  such  ex- 
planation not  being  inconsistent  with  the  written  terms."  1  Greenleaf 
on  Ev.  §  282.  For  instances  of  the  above-defined  character  the  prin- 
ciple is  well  recognized,  both  in  law  and  in  equity,  that  the  meaning 
the  parties  "intended  to  convey  by  the  words  they  employed  in  the 
written  instrument"  may  thus  be  ascertained  and  enforced.  Id.  This 
doctrine  is  entirely  apart  from  and  beyond  the  range  of  operation  of 
the  other  elementary  rule,  which  cannot  be  departed  from  in  the  en- 
forcement of  written  contracts,  that  such  contract  between  the  par- 
ties cannot  be  varied  or  set  aside  by  parol  testimony,  and  that  all 
prior  negotiations  and  understanding  of  the  parties  (in  the  absence  of 
fraud  or  mistake)  are  presumptively  merged  in  the  writing.  It  neither 
involves  nor  permits  violation  thereof  when  rightly  understood  and 
applied,  each  being  consistent  with  the  other  in  object  and  enforcement. 
In  other  words  the  rule  invoked  for  the. above-mentioned  oflfer  of  testi- 
mony is  exclusively  applicable  when  ambiguity  or  uncertainty  appears 
in  the  contract  terms,  and  in  such  event  parol  proof  is  admissible  for 
the  sole  purpose  of  ascertaining  the  meaning  of  terms  so  employed  on 
which  the  minds  of  the  parties  presumptively  met  in  making  the  con- 
tract. It  thus  serves  the  needful  object  of  placing  the  court,  "in  regard 
to  the  surrounding  circumstances,  as  nearly  as  possible  in  the  situation 
of  the  party  whose  written  language  is  to  be  interpreted."     Id.  §  295a. 

So  understood,  appHcation  of  this  principle  is  free  from  difficulty 
whenever  the  controversy  over  the  contract  terms  is  strictly  limited 
as  above  defined ;  but  confusion  is  not  infrequent,  either  in  presenta- 
tion of  issues  upon  such  terms  or  in  the  contentions  of  counsel  in  re- 
spect thereof,  which  tends  to  create  difficulty  in  the  way  of  placing 
offers  of  parol  proof  within  one  or  the  other  of  these  cardinal  rules, 
and  we  believe  such  confusion  appears  in  the  extended  argument  of 
counsel  (and  citations  as  well)  in  support  of  the  ruling  under  considera- 
tion. We  come,  therefore,  to  the  inquiry  whether  the  issues  upon 
the  contract  in  suit  render  the  rejected  proof  admissible. 

Both  pleadings  and  evidence  concur  in  establishing  the  fact,  if 
otherwise  questionable  on  reading  the  contracts  or  orders  in  suit,  that 
the  subject-matter  of  each— named  "Chicago  Pickle"  in  the  one  con- 
tract and  "Improved  Chicago  Pickhng"  in  the  other— requires  ex- 
trinsic evidence  for  identification  as  a  known  variety  of  cucumber 
seed,  and  the  entire  controversy  between  the  parties  hinges  primarily 
on  the  meaning  of  these  terms  as  employed  in  the  respective  orders. 
The  plaintiff  for  support  of  its  contention  that  both  were  used  alike 
to  designate  "Westerfield  Chicago  Pickle"— an  old  and  well-known 
variety  "especially  desirable  for  pickling  purposes"— introduced  (as 
heretofore  mentioned)  various  seedmen  who  testified  that  the  names 
were  so  used  and  known  in  the  trade.  This  testimony  was  contro- 
verted, but,  irrespective  of  such  disagreement,  we  understand  the  al- 
'leffed  usajre  to  constitute  circumstantial  evidence  only  of  the  meaning 


1064  THE  "parol  evidence"  rule  (Ch.  7 

of  the  uncertain  terms  employed  in  the  writing;  that,  although  uni- 
form usage  may  have  strong  probative  force  in  the  issue  of  fact  thus 
raised,  other  circumstances  attending  the  making  are  equally  admissi- 
ble to  ascertain  the  mutual  intention  of  the  parties  therein.  The  fore- 
going offer  of  proof  by  the  witness  John  T.  Buckbee  (who  made 
the  contract  on  behalf  of  the  defendant  for  "Improved  Chicago  Pick- 
ling") clearly  embraces  full  explanation  to  Hohenadel  that  the  variety 
tendered  for  purchase  was  "Haskell"  seed  described  with  certainty; 
that  he  then  quoted  the  "Westerfield"  variety  at  85  cents  per  pound, 
and  the  "Haskell"  at  70  cents  per  pound,  as  optional  for  purchase; 
that  Hohenadel  selected  the  "Haskell"  tender  accordingly  for  purchase ; 
that  they  then  adopted,  as  designation  for  the  seed  so  purchased,  the 
arbitrary  name  "Improved  Chicago  Pickling,"  as  theretofore  applied 
by  the  defendant ;  that  "the  witness  knew  of  no  other  strain  or  variety 
or  kind  of  cucumber  seed  that  was  being  sold  under"  such  name ;  and 
that  the  name  was  so  "inserted  in  the  contract  by  Mr.  Hohenadel." 

We  are  of  opinion  that  the  testimony  thus  offered  was  admissible 
for  submission  upon  the  above-defined  issue,  and  that  error  is  well 
assigned  for  its  rejection.  In  reference  to  objections  urged  to  other 
matters  embraced  in  the  offer,  we  are  not  impressed  with  the  alleged 
defects  therein  as  substantive  or  requiring  specific  mention.     *     *     * 

Judgment  reversed. 


DOE  ex  dem.  HICK  v.  BRING. 
(Court  of  King's  Bench,  1814.    2  Maule  &  S.  448.) 

Robert  Hick  being  entitled,  as  heir  at  law  to  one  Joseph  Hick,  to 
the  undisposed  of  reversion  in  fee  of  certain  freehold  estates  in  Nor- 
folk and  Cambridgeshire,  expectant  on  the  death  of  Ann  the  widow  of 
the  said  Joseph,  who  was  tenant  for  life  under  the  will  of  the  said 
Joseph,  which  estates  were  in  1776,  at  the  death  of  the  said  Joseph,  of 
about  the  yearly  value  of  £40.,  married  the  lessor  of  the  plaintiff,  by 
the  name  of  Elizabeth  Watte,  widow,  whose  former  husband,  Isaac 
Watte,  was  then  living;  but  that  fact  was  unknown  to  both  parties. 
Afterwards  the  said  Robert  made  his  will,  dated  the  6th  of  April,  1807, 
and  properly  executed  by  him  in  the  presence  of  and  attested  by  four 
witnesses,  in  the  following  words:  "I,  Robert  Hick,  of,  &c.,  do  declare 
this  to  be  my  last  will  and  testament,  by  which  I  do  give  and  bequeath 
to  my  wife  Elizabeth,  or  reputed  wife,  all  and  singular  my  effects  of 
what  nature  or  kind  soever,  to  her  own  use  and  enjoyment  during  her 
natural  life,  and  at  her  death  to  be  equally  divided  between  our  sur- 
viving children."  The  testator  died  soon  after  the  making  of  his  will 
without  revoking  or  altering  the  same,  and  leaving  the  lessor  of  the 
plaintiff,  his  supposed  wife,  and  three  sons  now  living,  namely,  Josepli, 
Robert,  and  John,  all  baptized  as  their  children,  and  having  obtained 
that  reputation  in  the  lifetime  of  the  testator,    Ann,  the  tenant  for  life, 


Sec.  2)  AIDING  CONSTRUCTION  10G5 

died  in  1811.  The  defendant  John  Dring  is  the  son  and  heir  at  law 
of  Susannah,  the  sister  of  and  heir  at  law  to  the  testator,  who  married 
one  John  Dring.  The  testator  died  possessed  of  personal  estate  to  the 
amount  of  about  £118.,  and  in  his  lifetime,  and  in  the  lifetime  of  Ann 
the  tenant  for  life,  had  an  offer  made  to  him  for  the  purchase  of  his 
reversionary  interest  in  the  estate  in  question,  which  he  declined  to  ac- 
cept. 

The  question  for  the  opinion  of  the  Court  is,  whether  the  reversion- 
ary interest  of  the  said  Robert  Hick  does  or  does  not  pass  under  and 
by  virtue  of  his  aforesaid  will  to  his  widow,  the  lessor  of  the  plaintiff. 
If  it  does,  the  verdict  to  stand ;  but  if  not,  a  verdict  to  be  entered  for 
the  defendant. 

This  case  was  argued  in  last  Hilary  term  by  Blosset,  Serjt.,  for  the 
plaintiff,  and  Best  for  tlie  defendant,  when  the  Court,  in  the  absence 
of  Dampier,  J.,  gave  judgment  in  favour  of  the  defendant ;  but  some 
days  afterwards  they  intimated. to  the  counsel  for  tlie  plaintiff,  that 
if  it  was  desired,  they  would  hear  a  second  argument;  and  so  the 
case  was  again  argued  on  this  day  by  Holroyd  for  the  plaintiff,  and 
Best  for  the  defendant.  For  the  plaintiff  it  was  argued  in  substance 
as  follows :  The  reversionary  estate  of  the  testator  passed  to  the  les- 
sor of  the  plaintiff  under  the  word  effects.  That  the  word  effects  is 
capable  of  carrying  the  real  estate,  if  it  be  used  with  that  intent,  is 
clear  as  well  from  the  rule  of  law  as  from  authorities. 

For  the  defendant,  it  was  denied  that  the  Court  could  look  to  circum- 
stances dehors  the  will  in  order  to  collect  the  intention ;  and  therefore 
it  M^as  said  that  this  was  a  mere  question  upon  the  construction  of  the 
word  effects,  simply,  and  as  it  stood  alone,  without  anything  to  mark 
in  what  particular  sense  the  testator  used  it ;  and  that  unless  the  word 
effects  did  proprio  vigore  pass  the  real  estate,  the  rule  that  the  heir  at 
law  shall  not  be  disinherited  but  by  express  words  or  necessary  impli- 
cation, must  prevail.  Biit  it  was  insisted  that  effects,  in  its  natural 
and  legal  acceptation,  is  confined  to  personalty ;  and  all  the  cases  where 
it  has  been  carried  farther,  will  be  found  to  have  depended  upon  con- 
text, and  therefore  not  to  help  this  case,  where  the  construction  is 
merely  upon  the  word  itself. ^^ 

Lord  EllEnborough,  C.  J.  No  case  has  ever  yet  come  before  the 
Court  touching  either  a  will  or  any  other  subject,  that  I  am  aware  of, 
where  the  Court  have  been  called  upon  to  pronounce  on  the  techni- 
cal meaning  of  the  word  effects,  denuded  as  it  is  here  of  all  context, 
unless  indeed  tlie  words  "of  what  nature  or  kind  soever"  can  be  con- 
sidered as  context  and  explanatory  of  it.  In  Camfield  v.  Gilbert,  3 
East,  516,  and  Doe  v.  Eainchbury,  11  East,  290,  it  was  taken  for  grant- 
ed that  effects  in  its  natural  signification  imports  personal  effects ;  and 
no  case  has  yet  occurred  in  which  that  signification  unaided  by  con- 

67  statement  condensed  and  opinions  of  Le  Blanc,  Bay  ley,  and  Dampier, 
JJ.,  are  omitted. 


1066  THE  "parol  evidence"  rule  (Ch.  7 

text  has  been  extended  to  real  estate.  Where  a  testator  has  used  the 
general  introductory  words  "as  to  all  my  worldly  substance,"  and  the 
word  effects  has  been  coupled  with  the  words  "real  and  personal"  as 
in  Hogan  v.  Jackson,  there  it  has  been  considered  that  the  context 
gave  it  a  more  enlarged  and  comprehensive  sense  than  it  would  other- 
wise have  borne,  and  the  word  effects  has  from  the  declared  inten- 
tion of  the  testator  been  holden  to  pass  the  whole  interest  in  the  lands. 
And  so  in  Doe  d.  Chilcot  v.  White  ^*  the  words  "said  effects"  by  ref- 
erence to  the  antecedent  bequest,  which  comprehended  both  real  and 
personal,  were  holden  to  include  the  real  also ;  but  that  was  so  held 
by  the  Court  not  upon  the  import  of  the  word  effects  simply,  but  as  it 
derived  force  from  the  reference  that  was  given  to  it.  On  the  other 
hand  it  may  be  said,  that  in  Camfield  v.  Gilbert  the  Court  in  holding 
that  the  word  effects  did  not  extend  beyond  the  personalty,  did  not 
decide  upon  the  general  import  of  that  word,  because  there  was  some 
context  which  favoured  the  narrower  construction,  for  the  testatrix 
excepted  out  of  her  effects  her  wearing  apparel  and  plate,  which  was  an 
exception  clearly  of  a  personal  nature,  and  also  directed  that  her  ef- 
fects should  be  divided  by  her  executors.  In  the  present  case  therefore, 
for  the  first  time,  the  Court  is  called  upon  to  give  it  a  sense  unaided  by 
context.  We  have  a  familiar  meaning  attached  to  the  word  effects,  in 
its  common  use,  and  as  it  is  used  in  the  statutes  relating  to  bankrupts, 
where  estate  and  eft"ects,  reddendo  singula  singulis,  denote,  the  one 
things  personal,  the  other  things  real ;  and  I  am  not  aware  of  any 
case  where  it  has  been  holden  in  its  primary  and  original  signification  to 
mean  things  real.  In  the  present  case,  if  I  were  asked  my  private 
opinion  as  to  what  this  testator  really  meant  v/hen  he  made  use  of  the 
word,  I  must  suppose  that  he  meant,  that  which  his  duty  prescribed 
to  him,  to  convey  all  his  property  for  the  maintenance  of  his  family; 
but  sitting  in  a  Court  of  Law  I  am  not  at  liberty  to  collect  his  meaning 
from  matter  dehors,  but  only  from  the  expressions  used  on  the  face  of 
the  will.  The  rule  of  law  is  peremptory  that  the  heir  shall  not  be 
disinherited  unless  by  plain  and  cogent  inference  arising  from  the 
words  of  the  will.  Here  the  subsequent  words,  "of  what  nature  or 
kind  soever,"  are  tacitly  implied  in  the  preceding  word  "all,"  and  carry 
the  sense  no  farther;  they  are  not  an  expansion  of  the  word  effects 
beyond  its  natural  meaning.  Admitting  that  they  import  that  it  shall 
be  taken  in  its  most  enlarged  sense,  I  am  content  to  take  it  so,  but  I 
cannot  go  beyond  its  natural  sense.  It  is  no  doubt  a  matter  of  great 
regret  to  be  compelled  so  to  decide,  because  one  cannot  but  feel 
that  such  a  decision  may,  and  perhaps  will,  disappoint  what  ought  to 

58  In  this  caso,  1  East,  33  (1800),  Lord  Konyon  observed:  "It  Is  very  plain 
what  the  testator  meant.  After  Rivins  a  few  legacies  and  bequests  he  de- 
vises all  the  residue  of  liis  property  both  real  and  personal  of  every  descrip- 
tion to  his  widow  for  her  life,  and  then  allows  her  to  aive  what  slie  thinks 
l)roper  of  her  said  effects  to  her  sisters  for  their  lives.  Tliis  description  must 
apply  to  tlie  property  wliich  he  had  been  before  dealing  out,  amongst  which 
Burgfc's  CoUage  is  uientiouud  by  uame." 


Sec.  2)  AIDING   CONSTRUCTION  1007 

have  been  and  what  probably  was  the  intention  of  the  testator;  but 
we  cannot  yield  to  our  wishes  and  overstep  the  fair  rule  of  con- 
struction, in  order  to  give  to  the  word  a  sense  more  agreeable  to  our 
inclinations  and  the  testator's  duties,  which  sense  it  does  not  of  itself 
bear.  We  are  bound  by  the  terms  which  he  has  used,  and  cannot  look- 
beyond  them  into  extrinsic  matter  for  their  interpretation ;  and  in  the 
two  cases  which  I  at  first  mentioned  it  was  considered  that  effects 
primarily  imported  only  personal  effects.  I  think  therefore  that  there 
must  be  the  same  judgment  as  we  before  pronounced. 
Judgment  for  defendant. 


FAIRFIELD  v.  LAWSON  et  al. 

(Supreme  Court  of  Errors  of  Connecticut,  1883.     50  Conn.  501,  47  Am. 

Rep.  6G9.) 

David  Lawson,  the  testator,  died  February  10th,  1881,  leaving  real 
estate  of  the  value  of  $12,000  and  personal  estate  of  the  value  of 
$9,688.  He  left  a  will,  made  in  1868,  which  was  proved  after  his 
death,  and  which  contained  the  following  clauses : 

"I  give  unto  William  M.  Corbin  three  thousand  three  hundred  and 
fifty  dollars,  in  trust  for  my  wife,  Polly  Lawson.  Said  trustee  shall 
pay  her  the  interest  of  said  sum  of  money  in  manner  following 
*  *  *  so  long  as  she  shall  live.  And  from  and  after  the  death  of 
my  said  wife,  the  interest  shall  be  used  and  employed  and  devoted  to  the 
education  of  the  freedmen,  and  the  interest  shall  be  paid  over  annually 
to  the  proper  officers  of  the  Freedmen's  Association  for  that  purpose 
by  the  said  trustee." 

At  the  date  of  the  execution  of  the  will  and  at  the  time  of  the  death 
of  the  testator  there  had  not  been  established  any  voluntary  associa- 
tion nor  any  corporation  known  as  the  "Freedmen's  Association." 
There  were,  however,  in  existence  at  the  first  mentioned  date  divers 
associations,  organized  for  and  engaged  in  the  work  of  educating  the 
freedmen.    *    *    * 

At  the  date  of  executing  the  will  there  was  also  a  voluntary  asso- 
ciation of  individuals  connected  with  the  Alethodist  Episcopal  Church 
engaged  in  the  work  of  educating  the  freedmen,  known  by  the  name  of 
"The"  Freedmen's  Aid  Society  of  the  Methodist  Episcopal  Church, 
located  at  Cincinnati,  Ohio." 

There  was  no  evidence  whatever  before  the  court  to  show  that  the 
last  mentioned  organization  was  intended  by  the  testator,  except  his 
verbal  declarations  as  hereinafter  mentioned. 

The  plaintiff  offered  Samuel  E.  Fairfield  as  a  witness,  who  testified 
that  he  drew  the  will  in  question  at  the  dictation  of  the  testator,  who 
said  he  wanted  to  give  the  income  of  the  property  in  question  in 
trust  for  the  education  of  the  freedmen,  that  there  was  a  Freedmen's 
Association  organized  by  the  Methodist  Church  People,  located  in  Cin- 


1068  THE  "parol  evidence"  rule  (Ch.  7 

cinnati,  Ohio  and  that  he  wanted  it  payable  to  the  officers  of  that  as- 
sociation. 

This  evidence  was  received  subject  to  the  defendants'  objection. 
If  legally  admissible  for  the  purpose  the  court  finds  that  wherever  in 
the  will  the  testator  refers  to  the  "Freedmen's  Association"  he  in- 
tended the  voluntary  association  known  by  the  name  of  "The  Freed- 
men's  Aid  Society  of  the  Methodist  Episcopal  Church"  located  at  Cin- 
cinnati and  organized  August  8th,  1866. 

If,  on  the  other  hand,  the  verbal  declarations  of  the  scrivener  are 
not  admissible  or  competent  to  prove  the  fact  above  stated,  then  I  find 
that  there  is  no  evidence  whatever  to  identify  the  object  of  the  tes- 
tator's bounty,  described  as  the  Freedmen's  Association,  and  it  is  im- 
possible for  the  court  to  determine  it. 

The  court  further  finds  that  the  term  "freedmen,"  as  used  in  the 
will,  refers  to  that  class  of  persons  in  the  United  States  who  were 
emancipated  from  slavery  during  our  late  civil  war  or  by  its  results,  and 
embraces  also  the  descendants  of  such  persons. 

Upon  these  facts  the  following  questions  were  reserved  for  the  ad- 
vice of  this  court: 

1.  Whether  the  declarations  of  the  testator  were  admissible  for  the 
purpose  stated?  ^® 

LooMis,  J.  Those  parts  of  the  will  of  David  Lawson  that  are  so 
obscure  as  to  require  the  advice  of  this  court  relate  to  the  bequests  to 
the  Freedmen's  Association  and  to  Fairfield  to  be  used  as  he  pleases. 

1.  Who  can  take  the  legacy  payable  to  the  proper  officers  of  the 
"Freedmen's  Association"  ?  We  cannot  advance  a  single  step  toward 
the  solution  of  this  question  unless  resort  may  be  had  to  parol  evidence, 
because  the  record  shows  that  there  was  no  such  organization  or  cor- 
poration in  existence  as  the  Freedmen's  Association  at  the  date  of  the 
execution  of  the  will;  and  this  expresses  but  a  small  part  of  the 
difficulty,  for  the  further  finding  is  that  except  a  single  item  of  parol 
evidence,  the  admissibility  of  which  is  one  of  the  questions  reserved, 
there  was  absolutely  no  evidence  of- any  kind  to  identify  the  testator's 
bounty. 

The  evidence  in  question  consisted  merely  of  the  oral  instructions 
given  by  the  testator  to  the  scrivener,  Fairfield,  "that  he  wanted  to 
give  the  income  of  the  property  in  question  in  trust  for  the  education 
to  the  freedmen ;  that  there  was  a  Freedmen's  Association  organized 
by  the  Methodist  Church  people  located  in  Cincinnati,  Ohio,  and  that 
he  wanted  it  payable  to  the  officers  of  that  association." 

Now  it  is  very  common  to  admit  parol  evidence  in  cases  for  the 
construction  of  wills.  The  difficulty  here  is  not  owing  merely  to  the 
fact  that  the  evidence  is  oral,  but  to  its  relation  to  the  written  words 
of  the  will.  The  law  is  imperative  that  the  entire  will  must  be  in 
writing,  and  herein  are  found  the  rules  and  limitations  that  must  be 

»»  Statement  condensed. 


Sec.  2)  AIDING  CONSTRUCTION  10G9 

applied  to  such  evidence.  The  intent  must  in  every  case  be  drawn 
from  the  will,  but  never  the  will  from  the  intent.  The  test  therefore 
to  be  applied  in  all  cases  where  evidence  like  that  under  consideration 
is  tendered,  is,  whether  there  appears  on  the  face  of  the  will  suffi- 
cient indication  of  intention  to  justify  the  application  of  the  evidence. 
The  words  of  the  will  are  so  controlling  that  if  they  apply  with  exacti- 
tude to  one  person,  such  person  will  take  the  legacy,  although  parol 
and  extrinsic  evidence  might  make  it  perfectly  clear  that  another  per- 
son less  exactly  described  was  the  one  intended. 

This  principle  was  applied  by  this  court  in  the  recent  case  of  Dun- 
ham et  al.  v.  Averill  et  al.,  45  Conn.  61,  29  Am.  Rep.  642,  where  the 
legacy  was  to  "The  American  and  Foreign  Bible  Society,"  and  it  ap- 
peared that  that  society  was  one  mainly  supported  by  the  Baptist  de- 
nomination; but  that  there  was  another  society  supported  by  the 
Congregational  and  Presbyterian  denominations,  named  the  "American 
Bible  Society,"  sometimes  called  "The  American  and  Foreign  Bible 
Society,"  and  that  the  testator's  sympathies  and  preferences  were  all 
with  the  latter;  and  evidence  was  offered  that  while  the  will  was 
being  drawn  the  testator  said  to  the  scrivener  that  he  wished  to  give 
the  money  to  the  Bible  Society  sustained  by  the  Congregationalists 
and  Presbyterians ;  that  he  was  not  sure  as  to  its  corporate  name,  but 
believed  it  to  be  "The  American  and  Foreign  Bible  Society" ;  but  the 
evidence  was  held  not  admissible.  So  it  has  been  uniformly  held  that 
parol  evidence  cannot  be  received  to  correct  a  mistake  in  the  will. 
Avery  v.  Chappel,  6  Conn.  270,  16  Am.  Dec.  53 ;  Comstock  v.  Had- 
lyme  Ecc.  Society,  8  Conn.  254,  20  Am.  Dec.  100;  Tucker  v.  Sea- 
men's Aid  Society,  7  Mete.  (Mass.)  188;  Jackson  v.  Sill,  11  Johns. 
(N.  Y.)  201,  6  x\m.  Dec.  363. 

The  principle  we  are  contending  for  is  also  applied  in  another  class 
of  cases,  where  parol  and  extrinsic  evidence  is  admitted.  I  refer  to 
the  rule  derived  from  the  maxim,  "Falsa  demonstratio  non  nocet,  cum 
de  corpore  constat,"  where  the  office  of  the  parol  evidence  is  to  re- 
ject that  part  of  the  description  which  is  false,  but  in  such  case  it  is 
indispensable  that  enough  remains  in  the  words  of  the  will  to  show 
plainly  the  intent,  but  in  no  case  can  any  words  be  added  to  the  de- 
scription. 

Another  prominent  rule  is,  that  when  the  question  is  one  of  con- 
struction the  parol  or  extrinsic  evidence  must  be  ancillary  to  a  right 
understanding  of  the  language  of  the  will ;  hence  all  direct  evidence 
of  intention  as  contra-distinguished  from  evidence  to  show  the  mean- 
ing of  the  written  words  in  the  will  is  inadmissible.  This  rule  is  well 
illustrated  by  the  case  of  Goblet  v.  Beechey,  given  at  length  in  the 
second  American  edition  of  Wigram  on  Extrinsic  Evidence,  p.  287, 
Appendix,  and  also  briefly  reported  in  3  Simons,  24.  NoUekins,  the 
sculptor,  by  a  codicil  to  his  will  desired  that  "all  the  marble  in  the  yard, 
tools  in  the  shop,  bankers,  mod,  tools  for  carving,  &c.,  should  be  the 
property  of  the  plaintiff.     A  lady  who  was  an  attesting  witness  was  of- 


1070  THE  "parol  evidence"  rule  (Ch.  7 

fered  to  prove  that  before  she  subscribed  her  name  she  read  the  codicil 
in  the  hearing  of  the  testator  and  when  she  came  to  the  word  "mod" 
she  asked  him  what  he  meant  by  it,  and  he  replied  "models."  Sir  John 
Leach,  Vice  Chancellor,  held  the  testimon}^  inadmissible,  but  allowed 
an  inquiry  as  to  the  meaning  of  the  term  itself  from  the  testimony 
of  sculptors.  See  also  cases  referred  to  in  2  Phillips's  Evidence  (Cowen 
&  Hill's  notes)  p.  754. 

So  far  the  rules  referred  to,  if  applied  to  the  evidence  in  question, 
rigidly  exclude  it.  Is  there  then  any  exception  or  additional  rule  un- 
der which  it  may  be  received?  The  case  shows  that  it  was  sought  for 
the  purpose  of  ascertaining  the  beneficiary,  to  prove  the  specific  in- 
tention of  the  testator  by  his  oral  declarations  to  the  scrivener  who 
drew  the  will.  There  is  only  one  rule  that  can  be  invoked  as  ap- 
plicable to  such  a  case.  This  is  stated  very  clearly  by  Lord  Abinger, 
Chief  Baron,  in  Hiscocks  v.  Hiscocks,  5  Mees.  &,Wels.,  363,  whose 
opinion,  Redfield  says,  in  his  Treatise  on  Wills,  vol.  2,  p.  566,  is 
universally  admitted  to  have  settled  the  law  that  such  evidence  is  onlv 
admissible  in  the  one  instance  there  stated,  namely,  "where  the  mean- 
ing of  the  testator's  words  is  neither  ambiguous  nor  obscure,  and 
where  the  devise  is,  on  the  face  of  it,  perfect  and  intelligible,  but,  from 
some  of  the  circumstances  admitted  in  proof,  an  ambiguity  arises  as 
to  which  of  the  two  or  more  things,  or  which  of  the  two  or  more 
persons,  each  answering  the  words  in  the  will,  the  testator  intended  ^° 
to  express.  Thus,  if  a  testator  devise  his  manor  of  S.  to  A.  B.  and 
has  two  manors  of  North  S.  and  South  S.,  it  being  clear  he  means  to 
devise  one  only,  whereas  both  are  equally  denoted  by  the  words  he 
has  used,  in  that  case  there  is  what  Lord  Bacon  calls  'an  equivocation,' 
that  is,  the  words  equally  apply  to  either  manor,  and  evidence  of  pre- 
vious intention  may  be  received  to  solve  this  latent  ambiguity ;  for 
the  intention  shows  what  he  meant  to  do ;  and  when  you  know  that, 
you  immediately  perceive  that  he  has  done  it  by  the  general  words  he 
has  used,  which,  in  their  ordinary  sense,  may  properly  bear  that  con- 
struction. It  appears  to  us  that,  in  all  other  cases,  parol  evidence  of 
what  was  the  testator's  intention  ought  to  be  excluded,  upon  this  plain 
ground,  that  his  will  ought  to  be  made  in  writing,  and  if  his  intention 
cannot  be  made  to  appear  by  the  writing,  explained  by  circumstances, 
there  is  no  will." 

Now  it  seems  to  us  that  under  this  rule  the  proposed  evidence  can- 
not apply,  because  the  words  of  the  will  describing  the  beneficiary  do 

60  This  exception  appoar.s  to  l)e  rocosnlzod  everywhere,  and  the  only  con- 
troversy is  whether  it  .sliould  lie  strictly  or  liberally  applied.  In  lOiii^land  it 
seems  to  be  now  settled  that  the  e.\cei)tion  can  oidy  apply  wliere  there  are 
two  persons  or  things,  each  equally  answering  to  the  name  or  description. 
Charter  v.  Charter,  7  L.  R.  II.  L.  Cas.  ;5G4  (1874). 

In  some  of  the  American  cases  tliere  is  a  decided  tendency  to  admit  the 
evidence  wli(,'re  there  are  two  persons  to  either  of  whom  the  de.scrii)tion  might 
apply,  though  more  naturally  ai)plicable  to  one  than  tJie  otlier.  VVillard  v. 
Darrah,  108  Mo.  mO,  G8  S.  W.  1()23,  00  Am.  St.  Rep.  4(!8  (lOO'J). 


Sec.  2)  AIDING  CONSTUUCTION  1071 

not  apply  equally  to  two  or  more,  "each  answering  to  the  words  of  the 
will."  On  the  contrary  the  words  used  are  not  applicable  to  any 
known  organization,  either  voluntary  or  incorporated.  Such  in  sub- 
stance is  the  finding.  When  therefore  we  learn  from  the  parol  evi- 
dence what  the  actual  intent  was,  we  do  not  "immediately  perceive  that 
the  testator  has  effectuated  his  intent  by  the  general  words  he  has  used ;" 
on  the  contrary,  tlie  efifect  of  the  evidence  in  this  case  is  rather  to  in- 
crease the  mystery  that  hangs  over  the  words  in  the  will.  The  name 
"Freedmen's  Association"  in  itself  considered  would  naturally  import 
an  association  composed  of  freedmen,  as  the  names  "Lawyers'  As- 
sociation," "Doctors'  Association,"  "Farmers'  Association,"  would  in- 
dicate the  membership  of  each. 

It  is  very  strange,  if  the  testator  gave  such  instructions  to  the 
scrivener  as  the  evidence  indicates,  that  no  one  of  the  prominent 
features  of  his  description  should  find  its  way  into  the  will  as  written. 
The  prominent  things  in  his  description  were,  the  religious  body  that 
organized  the  association  and  its  location  at  Cincinnati,  Ohio,  but  of 
these  things  the  words  of  the  will  are  silent,  and  it  does  not  appear 
how  or  why  the  words  "Freedmen's  Association"  alone  were  used; 
there  was  no  discussion  concerning  the  name ;  no  suggestion  that  the 
name  used  would  be  sufficient,  nor  that  the  Cincinnati  society  had  ever 
been  so  called.  As  the  case  stands  upon  the  record  the  instructions 
given  by  the  testator  were  not  carried  into  effect  by  the  scrivener, 
and  the  court  has  no  power  to  correct  the  mistake,  as  it  would  upon 
like  evidence  correct  a  mistake  in  a  contract.  We  should  be  virtually 
making  a  will  as  to  the  beneficiary  from  the  actual  intent  proved  only 

by  parol. 

[The  conclusion  was  that  the  provision  in  question  was  void  for 
uncertainty.]"^ 


In  re  GOODS  OF  ASHTON. 

(Court  of  Probate.     [1S92]  L.  R.  Prob.  Div.  83.) 

The  testator  in  this  case  left  a  will  duly  executed  by  which  he  ap- 
pointed four  executors.  Tw^o  of  them  he  described  as  his  nephews, 
viz.,  "my  nephew  George  Ashton,"  and  "my  nephew  Esau  Ashton." 
There  was  a  "George  Ashton,"  the  illegitimate  son  of  his  sister,  and 
Esau  Ashton  was  his  son,  and  there  was  also  a  "George  Ashton"  who 
was  a  legitimate  nephew,  being  the  son  of  testator's  brother.  The 
only  question  in  the  case  was  whether  parol  evidence  could  be  receiv- 
ed to  shew  that  the  testator  intended  to  nominate  his  illegitimate 
nephew  as  executor;    and  it  was  agreed  that  if  such  evidence  were 

«i  See,  also.  Griscora  v.  Evens,  40  N.  J.  Law,  402,  29  Am.  Rep.  251  (1S77), 
where  it  was  sough/;  to  show  by  the  testator's  instructions  that  a  part  of  the 
descriptive  words  were  the  result  of  mistake.  And  so  in  Tucker  v.  Seaman's 
Aid  Society,  7  Mete.  (Mass.)  1S8  (1843).  A  number  of  the  cases  are  collected 
in  6  L.  R.  A.  (N.  S.)  965. 


1072  THE  "parol  evidence"  rule  (Ch.  7 

admissible  there  could  be  no  doubt  that  the  intention  of  the  testator 
was  to  appoint  the  illegitimate  nephew.  It  also  appeared  that  the  tes- 
tator had  in  the  will  described  as  "my  niece"  a  person  who  was  his 
illegitimate  niece. 

It  was  agreed  between  the  parties  that,  to  save  expense,  the  ques- 
tion should  be  decided  on  motion. 

Jeune,  J.  The  case  has  been  well  argued,  and  although  on  one 
point,  if  it  were  the  only  one,  I  should  have  wished  to  look  further 
into  tlie  authorities,  on  another  point  there  appears  to  me  to  be  no 
great  doubt.  The  question  is  whether  where  the  testator  speaks  of 
his  "nephew"  he  must  be  held  to  be  speaking  of  an  illegitimate  or  of 
a  legitimate  nephew,  and  whether  you  can  call  in  parol  evidence  to 
shew  which  of  the  two  he  intended.  Two  points  are  to  be  kept  quite 
separate.  The  first  point  is  whether  in  the  word  "nephew"  per  se 
there  is  a  latent  ambiguity  which  will  entitle  us  to  inquire  whether  by 
the  word  the  testator  meant  his  legitimate  or  illegitimate  nephew.  If 
the  matter  turned  upon  that  point  alone,  although  I  have  an  opinion, 
I  should  have  expressed  it  with  much  hesitation,  because  it  appears 
to  me  there  is  considerable  conflict  of  authority.  The  question  is, 
can  one  say  that  the  word  "nephew" — though  in  its  primary  sense  ap- 
plicable to  a  legitimate  nephew  only — may  be  properly  applied,  in  its 
ordinary  and  popular  sense,  to  illegitimate  as  well  as  legitimate  rela- 
tives? If  it  can,  then  there  is  a  latent  ambiguity,  and  parol  evidence 
may  be  introduced.  There  is  a  conflict  of  authority  as  to  how  the 
word  "nephew"  may  be  read.  There  is  the  case  of  Grant  v.  Grant 
[Law  Rep.  2  P.  &  D.  8,  Law  Rep.  5  C.  P.  380,  727]  "^  which  was 

6  2  In  tills  case  the  will  gave  property  to  "my  nephew  Joseph  Grant,"  and 
it  appeared  that  testator  had  a  nephew  of  that  name,  and  that  his  wife's 
nephew  had  the  same  name.  In  the  court  below  evidence  was  admitted  to 
.'ihow  that  testator  had  brought  up  his  wife's  nephew  as  a  member  of  his 
family,  and  that  he  was  not  acquainted  with  his  own  nephew,  and  probably 
did  not  know  his  given  name;  evidence  was  also  admitted  to  show  testator's 
instructions  specifically  referring  to  his  wife's  nephew.  The  decision  was  in 
favor  of  the  nephew  by  marriage,  and  this  was  affirmed  by  the  appellate 
court,  without  specifically  deciding  whether  the  testator's  instructions  should 
be  considered.     On  this  point  see  guarded  opinion  by  Blackburn,  J. 

In  Charter  v.  Charter,  7  L.  R.  H.  L.  Cas.  3G4  (1874),  the  language  of  the 
will  on  its  face  was  more  naturally  applicable  to  the  older  son  than  to  the 
younger.  The  younger  son  was  thought  entitled  to  the  property  in  view  of 
all  the  facts,  but  the  court  held  that  the  testator's  declarations  could  not  be 
considered,  the  Lord  Chancellor  oi)serving: 

".My  Lords,  upon  one  part  of  the  case  I  have  never  entertained  any  doubt. 
I  hold  it  to  be  clear,  as  I  think  all  your  Lordshii)S  do,  that  this  is  not  a  case 
in  wiiich  any  parol  evidence  of  statements  of  the  testator,  as  to  whom  he 
intended  to  iK'nefit,  or  supposed  he  had  iK'nelitcd,  by  his  will,  can  !)e  received. 
The  learned  Judge  of  the  Probate  Court,  Lord  Penzance,  appears  to  have  ad- 
mitted evidence  of  this  description,  although  he  states  that  his  judgment 
would  have  been  the  same  if  the  evidence  had  been  excluded.  I  am  of  opin- 
ion tliat  It  ouglit  to  have  Ix'cn  excluded.  The  only  case  in  which  evidence  of 
this  kind  can  he  received  is  where  the  description  of  the  legatee,  or  of  the 
thing  beipieathed.  Is  equally  applicable  in  all  its  parts  to  two  persons,  or  two 
things.  That  clearly  cannot  be  said  of  the  presi-nt  case. 
"But,  my  Lords,  there  is  u  class  of  evidence  which  iu  this  case,  as  in  all 


Sec.  2)  AIDING   CONSTRUCTION  1073 

heard  three  times.  Lord  Penzance,  the  Court  of  Common  Pleas,  and 
the  Court  of  Exchequer  Chamber  all  held  that  the  word,  although  in 
its  primary  sense  importing  consanguinity,  might  in  the  secondary 
sense  mean  affinity,  and  tliat  parol  evidence  could  be  adduced  to  shew 
which  was  intended.  If  that  be  50,  nud  if  "nephew"  can  be  used  in 
so  general  a  sense  as  to  include  both  consanguinity  and  affinity,  it 
might  fairly  be  said  to  include  both  legitimate  and  illegitimate  nephews 
and  nieces.  But  the  difficulty  is  that  Grant  v.  Grant,  does  not  appear 
to  have  been  unchallenged.  It  must  be  admitted  that  the  late  Master 
of  the  Polls  in  Wells  v.  Wells  [Law  Rep.  18  Eq.  504],  disapproved 
of  the  decision  in  Grant  v.  Grant.  But,  speaking  with  the  profoundest 
deference  of  the  decision  of  so  great  a  judge,  it  may  be  doubted  wheth- 
er the  two  decisions  of  the  Court  of  Appeal  which  he  preferred  to 
Grant  v.  Grant,  namely,  In  re  Blower's  Trusts  [Law  Rep.  6  Ch.  351] 
and  Sherratt  v.  Mountford  [Law  Rep.  8  Ch.  928],  are  really  opposed 
to  that  case.  Indeed,  in  the  latter  case,  James,  L.  J.,  appears  to  refer 
to  Grant  v.  Grant  with  approval.  It  must  be  admitted  also  that  Malins, 
V.  C,  in  Merrill  v.  Morton  [17  Ch.  D.  382],  seems  to  have  preferred 
to  follow  Sir  G.  Jessel  rather  than  Grant  v.  Grant.  I  do  not  think 
that  is  'weakened  by  the  observation  that  Malins,  V.  C,  admitted  the 
principle  of  interpretation  of  Grant  v.  Grant  in  In  re  Wolverton  Mort- 
gaged Estates  [7  Ch.  D.  197],  because  all  he  held  there,  I  think,  was, 
that  the  words  "Thomas"  and  "Tom"  being  synonymous  there  was  a 
latent  ambiguity  which  was  to  be  explained.  You  have,,  therefore,  the 
authority  of  Sir  G.  Jessel  and  Malins,  V.  C,  one  way,  and  Grant 
v.  Grant  and  I  think  Sherratt  v.  Mountford  [Law  Rep.  8  Ch.  928] 
the  other.  Under  these  circumstances,  if  I  had  had  to  decide  the  ques- 
tion on  that  point,  I  should  have  followed  Grant  v.  Grant  partly  because 
of  the  great  number  of  judges  who  concurred  in  it,  and  partly  because 
the  decision  commends  itself  to  my  own  mind.  But  I  do  not  wish  to 
put  my  decision  on  that  point.  There  is  another  point  which  seems  to 
me  stronger.  In  this  will  the  testator,  to  use  the  language  of  Lord 
Cairns  in  Hill  v.  Crook  [Law  Rep.  6  H.  L.  265,  285],  has  made  us  a 
dictionary.  If  he  had  done  it  in  terms,  there  would  have  been  nothing 
more  to  be  said ;  but  he  seems  to  me  to  have  done  it  practically  because 
he  has  used  the  word  "nephew"  where  it  clearly  meant  an  illegitimate 
grand-nephew,  and  he  has  also  described  as  his  "niece"  a  person  who 

cases  of  testamentary  dispositions,  Is  clearly  receivable.  The  Court  has  a 
right  to  ascertain  all  the  facts  which  were  known  to  the  testator  at  the  time 
he  made  his  will,  and  thus  to  place  itself  in  the  testator's  position,  in  order 
to  ascertain  the  hearing  and  application  of  the  language  which  he  uses,  and 
in  order  to  ascertain  whether  there  exists  any  person  or  thing  to  w^hich  the 
whole  description  given  in  the  will  can  be,  reasonably  and  with  sufficient  cer- 
tainty, applied. 

"I  may  refer,  as  well-known  authorities  for  these  propositions,  to  the  cases 
of  Doe  V.  Hiscocks,  5  M.  &  W.  .363  [ISMi)].  Bernasconi  v.  Atkinson.  10  Hare, 
345  [1853],  and  Drake  v.  Drake,  in  this  House,  8  H.  L.  C.  172  [ISGO]." 

HiNT.Ev.— 68 


1074  .  THE   "parol   evidence"   RULE  (Cll.  7 

was  his  illegitimate  niece.  He  has- made  his  dictionary  for  us  in  an 
unambiguous  way,  and  if  we  are  entitled  to  use  that  dictionary  it  makes 
the  case  clear.  But  are  we  entitled  to  use  it  ?  There  is  a  conflict  of  ju- 
dicial authority  on  this  point ;  but  I  think  it  is  clear  on  which  side  the 
preponderance  lies.  The  case  of  Hill  v.  Crook  [Law  Rep.  6  H.  L.  265, 
285],  may  itself  be  referred  to,  but  other  cases  seem  to  me  nearer  to 
the  present.  In  re  Blower's  Trusts  [Law  Rep.  6  Ch.  351]  I  think  the 
Court  of  Appeal  expressed  an  opinion  that  the  words  "nephews  and 
nieces"  might  be  understood  in  a  sense  more  general  than  their  pri- 
mary sense  if  there  was  anything  in  the  language  of  the  testator  to 
shew  he  intended  such  a  construction.  On  the  other  hand,  In  Wells 
V.  Wells  [Law  Rep.  18  Eq.  504]  the  late  Master  of  the  Rolls,  follow- 
ing the  decision  of  Wood,  V.  C,  in  Smith  v.  Lidiard  [3  K.  &  J.  252], 
held  that  "you  cannot  import  the  secondary  meaning  of  the  word  into 
the  residuary  gift  merely  because  it  has  been  used  in  the  former  part 
of  the  will."  It  is  true  that  in  Merrill  v.  Morton  [17  Ch.  D.  382], 
■Malins,  V.  C,  also  followed  Smith  v.  Lidiard  [3  K.  &  J.  252]  ;  but 
that  learned  judge  intimated  that  if  he  were  unfettered  by  authority  he 
should  have  come  to  a  different  conclusion  on  the  point.  But  then 
comes  the  recent  case  of  In  re  Jodrell  [44  Ch.  D.  590;  (1891)  A.  C. 
304],  which  is  a  case  of  the  highest  authority.  In  that  case  it  was 
held  that  the  Court  was  entitled  to  look  to  the  other  parts  of  the  will 
to  see  what  sense  the  testator  had  put  on  particular  words,  and  that 
when  it  was  found  that  he  had  employed  the  word  "cousins"  to  mean 
both  legitimate  and  illegitimate  cousins,  it  was  permissible  to  say  that 
in  using  the  word  "relatives"  he  included  relatives  who  were  illegiti- 
mate. Following  that,  it  appears  to  me  clear  that  the  testator  here 
has  given  us  his  own  interpretation  of  the  language  which  he  has 
used.  He  has  shewn  that  when  he  used  the  word  "nephew"  he 
meant  illegitimate  as  well  as  legitimate  nephews,  and  when  he  used 
the  word  "niece"  he  meant  it  to  refer  to  his  illegitimate  niece.  There- 
fore, when  he  speaks  of  his  nephew  George  Ashton — he  may  have 
meant  either  one  or  other — there  is  a  latent  ambiguity,  and  parol 
evidence  may  be  let  in  to  explain  it.  But,  as  it  is  admitted  that  if  parol 
evidence  is  let  in,  it  is  shewn  that  George  Ashton,  the  illegitimate 
nephew,  is  the  person  whom  the  testator  intended,  I  grant  probate  of 
the  will  to  the  applicants. 
Probate  granted. 


Sec.  2)  AIDING   CONSTRUCTION  1075 

In  re  ROOT'S  ESTATE. 
(Supreme  Court  of  Pennsylvauia,  1898.    187  Pa.  118,  40  Atl.  818.) 

Di^AN,  J.     The  question  for  consideration  is  as  to  the  identity  of  a 
legatee  under  the  decedent's  will.    The  testator  died  October  23,  1882, 
having  executed  his  will  on  October  11th  of  same  month.     By  the  will 
he  gave  to  his  wife  the  entire  income  of  his  estate  during  life,  and 
at  her  death  distributed  the  principal  among  relatives  of  himself  and 
wife,  and  also  made  bequests  for  charitable  and  religious  purposes. 
The  widow  died  April  28,  1895,  and  the  estate  is  now  for  distribution. 
In  the  fourth  item  of  his  will  the  testator  says :     "And,  from  and  im- 
mediately after  the  decease  of  my  said  dear  wife,  I  do  give,  devise,  and 
bequeath  as   follows,  to  wit:     Unto  my  nephew  William  Root  the 
legacy  or  sum  of  one  thousand  dollars."    To  all  the  legatees  he  gave  an 
equal  share  in  his  residuary  estate.     This,  added  to  the  $1,000,  made 
William  Root's  share  about  $2,000.     On  distribution  before  Auditing 
ludge  Hanna,  the  only  question  raised  was  as  to  the  William  Root 
"legacy.     The  testator  had  a  blood  nephew,  William  Root,  son  of  his 
brother,  Bartholomew  Root.    There  was  also  a  William  Root,  a  nephew 
of  his  \vife,  but  not  of  kin  to  the  testator.     Each  claimed  the  legacy. 
The  auditing  judge  held  there  was  no  ambiguity  in  the  will  calling  for 
the  introduction  of  parol  testimony ;  that  the  description  of  the  legatee, 
"my   nephew   William    Root,"   fitted   exactly   his   nephew    by  blood. 
Therefore  he  awarded  to  him  the  legacy.     On  exceptions  before  the 
court,  the  decision  was  not  concurred  in,  and  the  adjudication  was  re- 
ferred back  to  the  auditing  judge,  that  parol  testimony  might  be  taken 
as  to  which  nephew  was  intended  by  testator.     After  hearing  quite  a 
number  of  witnesses  as  to  the  degree  of  intimacy  between  the  testator 
and  the  two  nephews;    that  he  showed  more  affection  for  his  wife's 
nephew  than  his  own;    that  he  was  not  on  good  terms  with  his  own 
nephew's  father;    and  that  he   frequently  expressed  an  intention  to 
favor  his   wife's  nephew% — the   auditing   judge   concluded,    from   the 
weight  of  the  evidence,  testator  intended  his  wife's  nephew  as  the  lega- 
tee, and  so  awarded.     This  adjudication  was  confirmed  by  the  court, 
and  we  have  this  appeal  by  William  Root,  testator's  own  nephew. 

Is  there  any  ambiguity  in  this  will  which  would  warrant  the  intro- 
duction of  parol  evidence  to  identify  one  of  the  legatees?  The  words 
are,  "to  my  nephew  William  Root."  There  is  a  person  answering  this 
description  exactly,  the  son  of  his  brother,  Bartholomew.  Th.e  gist 
of  the  decision  is  that,  to  relieve  the  will  of  ambiguity,  the  testator,  in- 
stead of  saying,  "Unto  my  nephew  William  Root,"  should  have  said, 
"Unto  my  nephew  William  Root,  not  my  wife's  nephew  William  Root, 
the  legacy  of  one  thousand  dollars."  But,  as  it  stands,  the  negative  is 
necessarily  implied.  Why,  by  additional  words,  express  an  inevitable 
implication?  When  he  accurately  described  the  only  legatee  who  could 
take  under  that  description,  why  should  he,  by  negative  words,  ex- 


1076  THE  "parol  evidence"  rule  (Ch.  7 

elude  one  who  was  not  described?  Why,  from  the  will  alone,  should 
we  suppose,  when  he  said,  "my  nephew,"  he  may  have  meant  some 
other  person's  nephew.  There  is,  then,  no  ambiguity  arising  on  the  face 
of  the  will  calling  for  parol  testimony  to  make  clear  the  intention. 

A  doubt  as  to  the  intention  is  raised  by  evidence  outside  the  will, 
but  not  by  the  will  itself.  We  can  make  a  will  for  the  testator,  by 
ascertaining  from  witnesses  that  his  wife  had  a  nephew  of  the  same 
name,  who,  from  his  greater  intimacy  with  and  kindness  to  his  aunt's 
husband,  was  more  deserving  of  the  legacy  than  the  blood  nephew, 
and  therefore,  according  to  our  notions,  ought  to  have  it.  In  other 
words,  we  create  a  doubt  where,  by  the  will,  the  intention  is  beyond 
doubt.  The  witnesses  called  are  the  neighbors  of  the  testator.  It  is  by 
no  means  rare  that  the  neighbors  and  friends  of  a  testator  think  they 
could  have  made  a  better  will  for  him  than  he  made  himself,  but  the 
property  was  his  to  dispose  of,  not  theirs,  nor  is  it  ours,  when  his  inten- 
tion was  plainly  expressed. 

It  is  seldom  the  authorities  on  a  question  are  so  many  and  pointed 
as  on  this  one.  A  "nephew,"  according  to  all  the  lexicographers,  is  the 
son  of  one's  brother  or  sister.  Sometimes  the  word  includes  grand- 
nephew.  In  Appel  V.  Byers,  98  Pa.  479,  the  words  of  the  will  were : 
"It  is  my  will,  and  I  hereby  devise,  that  my  nephew  Philip  Byers  shall 
have  and  hold,  after  the  death  of  my  wife,  all  my  real  and  personal  es- 
tate." At  the  death  of  testator  two  nephews  known  by  that  name 
made  claim.  One,  however,  was  illegitimate.  The  question  as  to  which 
was  intended  was  submitted  to  a  jury  on  evidence  dehors  the  will. 
They  found  the  one  intended  was  the  illegitimate  one,  and  the  court  en- 
tered judgment  in  his  favor.  On  appeal  to  this  court  the  judgment  was 
reversed,  on  the  ground  that  the  words,  "my  nephew  Philip  Byers," 
meant  his  legitimate  nephew,  because,  without  further  description,  they 
applied  to  him  and  to  no  other.  It  was  further  held,  following  Wust- 
hoff  V.  Dracourt,  3  Watts  (Pa.)  240,  that  "the  modern  doctrine  is  that 
where  a  subject  exists  which  satisfies  the  terms  of  the  will,  and  to  which 
they  are  perfectly  applicable,  there  is  no  latent  ambiguity.  Evidence  is 
only  admitted  dehors  the  will,  from  necessity,  to  explain  that  which 
otherwise  would  have  no  operation.  If  the  rule  were  held  otherwise, 
a  person  could  feel  no  security  in  making  a  will.  His  intention  clearly 
expressed  in  writing,  and  the  object  of  his  bounty  found,  in  all  respects 
answering  the  description,  might  be  defeated,  and  the  statute  relating  to 
wills  be  made  practically  inoperative."  The  doctrine  referred  to  as 
modern  in  the  opinion  is  a  quotation  from  Wusthoff  v.  Dracourt,  supra, 
decided  in  1834.  While  the  appellation  "modern"  may  have  been  cor- 
rect at  that  date,  yet  after  being  followed  for  65  years,  it  may  now 
be  termed  "old." 

In  Green's  y\ppcal,  42  Pa.  25,  the  bequest  was:  "And  as  regards 
the  rest,  residue,  and  remainder  of  my  moneyed  estate,  I  give  and  de- 
vise the  same  to  all  my  nephews  and  nieces,  share  and  share  alike." 
The  testatrix  was  childless.    Her  husband,  from  whom  came  the  larger 


Sec.  2)  AIDINO  CONSTRUCTION  1077 

part  of  her  estate,  had  died  years  before.  She  had  nephews  and  nieces 
of  her  own,  and  there  were  nephews  and  nieces  of  her  husband.  In  the 
former  part  of  the  will  she  had  given  several  special  legacies  to  her  hus- 
band's nephews  and  nieces,  by  the  words,  "my  nephew,"  or  "my  niece," 
but  in  no  case  was  there  any  uncertainty  as  to  the  one  designated. 
There  were  circumstances,  apart  from  the  will,  which  pointed  to  an 
intention  to  include,  in  the  residuary  clause,  all  the  nephews  and  nieces 
of  both  husband  and  wife.  The  court  below  so  held,  and  made  distribu- 
tion accordingly.  On  appeal  this  court  reversed  the  decree,  holding 
that  the  residuary  clause  meant  just  what  it  said, — her  own  nephews 
and  nieces,  and  not  those  of  her  husband.  In  the  will  before  us  the  tes- 
tator evidently  understood  the  distinction  between  the  "courtesy  title," 
as  it  is  termed  in  Green's  Appeal,  supra,  and  the  proper  application 
of  it  to  his  blood  relations.  In  no  less  than  seven  of  the  legacies  he 
uses  such  words  as  "my  wife's  sister,"  "my  wife's  cousin,''  "my 
brother-in-law."  In  only  two  instances  does  he  fail  to  distinguish  his 
wife's  relatives  by  the  proper  term,  and  in  those  there  is  no  similarity 
in  name  which  could  possibly  create  doubt.  He  knew  there  were  two 
nephews  of  the  same  name, — one  his  and  one  his  wife's.  He  was  well 
acquainted  with  both.  Nevertheless  he  uses  words  designating,  as  the 
object  of  his  bounty,  his  own  nephew,  and  by  those  very  words  nec- 
essarily excludes  his  wife's. 

The  only  case  cited  by  the  court  below  to  sustain  its  ruling  is  In  re 
Ashton  [1892]  Prob.  83,  an  English  case.  The  testator  appointed,  as 
one  of  his  executors,  "my  nephew  George  Ashton."  There  were  two 
nephews  of  that  name,  one  legitimate  and  the  other  illegitimate.  The 
latter  was  permitted  to  prove  that  he  was  the  one  intended,  and  letters 
were  issued  to  him.  We  do  not  adopt  this  as  authority.  It,  in  effect, 
overrules  our  whole  line  of  authorities  in  analogous  cases,  and  is  in  di- 
rect conflict  with  Appel  v.  Byers,  supra,  in  which  the  facts  were  almost 
precisely  the  same.  The  English  case,  in  substance,  adopts  the  doctrine 
of  Powell  V.  Biddle.  2  Dall.  70,  1  L.  Ed.  293,  1  Am.  Dec.  263,  a  case 
decided  in  1790.  The  testator  made  a  bequest  of  £100  to  Samuel 
Powell.  There  was  a  half  brother  of  Samuel,  son  of  testator's  daugh- 
ter,- named  William,  who  claimed  the  bequest  was  intended  for  him, 
and  the  court  permitted  this  to  be  proven  by  evidence  outside  the  will, 
and  the  legacy  was  awarded  to  William.  This  case  was  expressly  dis- 
regarded as  authority  in  Appel  v.  Byers,  supra,  and  it  was  there  said 
it  had  been  in  effect  overruled  by  Wusthoff  v.  Dracourt,  supra,  decided 
in  1834. 

We  think  the  opinion  of  the  learned  auditing  judge,  in  his  first  ad- 
judication, was  a  correct  exposition  of  the  law,  and  ought  to  have 
been  sustained.  The  decree  of  the  court  below  is  therefore  reversed, 
and  it  is  directed  that  the  legacy  in  contention  be  awarded  to  William 
Root,  son  of  testator's  brother,  Bartholomew  Root;  costs  of  this  ap- 
peal to  be  paid  by  appellee. 


1078  THE  "parol  evidence"  rule  (Ch.  7 

COON  et  al.  McNELLY  et  al. 
(Supreme  Court  of  Illinois,  1912.    254  111.  39,  98  N,  E.  218.) 

Carter,  C.  J.  Certain  of  the  defendants  in  error  filed  a  bill  in  the 
circuit  court  of  Monroe  county  against  other  defendants  in  error  and 
Lhe  plaintiff  in  error,  Albert  H.  Johnson,  asking  for  the  partition  of 
lands  devised  under  the  will  of  E.  E.  Morrison,  deceased.  From  the 
decree  construing  that  will  and  ordering  the  partition,  this  writ  of 
error  was  sued  out. 

The  cause  was  heard  by  the  circuit  court  on  an  agreed  stipulation 
of  facts.  Morrison  died  testate  on  October  20,  1910.  His  will,  after 
providing  for  the  payment  of  just  debts  and  funeral  expenses  and  for 
certain  specific  legacies,  reads  (clause  7) :  "I  give  and  bequeath  all 
the  remainder  of  my  estate,  both  real  and  personal,  including  lands, 
notes  and  moneys,  to  my  grandchildren."  Morrison  left  no  widow, 
father,  mother,  sister,  child,  or  children,  or  descendants  of  any  de- 
ceased sister,  brother,  or  child,  but  left  as  his  only  surviving  heir  at 
law  the  plaintiff  in  error,  Johnson,  who  was  a  brother  of  the  half 
blood.  Some  years  before  his  death  Morrison  married  a  widow, 
]\Irs.  Susan  Mattingly,  who  had  by  a  former  marriage  three  children. 
Mrs.  Morrison  predeceased  her  husband.  Her  three  children  were 
all  married  at  the  time  of  the  testator's  death.  One  had  one  child, 
another  two  children,  and  another  nine ;  all  of  said  twelve  children 
being  grandchildren  of  Mrs.  Morrison.  While  he  had  no  grandchil- 
dren of  his  own,  Morrison  had  at  all  times  since  his  marriage  to  Mrs. 
Mattingly  referred  to  her  grandchildren  as  his  grandchildren.  After 
his  marriage  with  Mrs.  Mattingly,  her  three  children,  who  were  then 
12,  14,  and  16  years  old,  respectively,  lived  for  several  years  with 
them  as  members  of  the  family.  The  grandchildren  of  Mrs.  Morri- 
son had  always  referred  to  and  called  the  testator  "grandfather." 
At  the  time  the  will  was  executed  the  testator  did  not  know  whether 
the  half-brother,  plaintiff  in  error,  was  living,  as  clause  4  of  the  will 
reads :  "I  give  and  bequeath  to  my  half-brother,  Albert  H.  John- 
son, one  thousand  dollars  ($1,000).  I  not  knowing  where  he  is,  I 
order  my  executor  to  put  an  advertisement  in  the  St.  Louis  Globe- 
Democrat  and  Post-Dispatch  daily  for  one  week,  and  if  he  is  not  found 
in  three  years  the  said  thousand  dollars  is  to  go  to  John  Mattingly." 
On  these  facts  the  chancellor  decreed  that  under  clause  7  of  the  will 
the  testator  left  the  remainder  of  his  property  to  the  twelve  grandchil- 
dren of  his  wife. 

It  is  contended  by  plaintiff  in  error  that  extrinsic  evidence  was 
improperly  admitted  to  show  what  persons  testator  meant  by  "my 
grandchildren,"  in  said  clause;  that,  as  he  had  no  grandchildren,  the 
property  purported  to  b(^  devised  by  said  clause  7  is  intestate,  and 
went  by  descent  to  plaintiff  in  error,  as  testator's  sole  heir  at  law; 


Sec.  2)  AIDING   CONSTRUCTION  1079 

that  in  this  will  there  is  a  want  of  persons  to  take  under  the  clause  in 
question. 

In  construing  wills,  the  paramount  rule  is  to  ascertain  the  inten- 
tion of  the  testator,  and  give'it  effect,  if  not  prohibited  by  law.  Brads- 
by  V.  Wallace,  202  111.  239,  66  N.  E.  1088.  In  seeking  this  intention, 
the  relation  of  the  parties,  the  nature  and  situation  of  the  subject- 
matter,  the  purpose  of  the  instrument,  and  the  motives  which  might 
reasonably  be  supposed  to  influence  the  testator  in  the  disposition  of 
his  property  may  be  considered.  Wardner  v.  Baptist  Memorial  Board, 
232  111.  606,  83  N.  E.  1077,  122  Am.  St.  Rep.  138.  The  rule  as  to 
the  exclusion  of  evidence  offered  to  explain  written  instruments  does 
not  exclude  the  circumstances  in  which  testator  was  placed,  or  the 
collateral  facts  surrounding  him,  at  the  time  the  will  was  executed. 
1  Greenleaf  on  Evidence,  §  297.  "The  law  is  not  so  unreasonable 
as  to  deny  to  the  reader  of  any  instrument  the  same  light  which  the 
writer  enjoyed."  Wigram  on  Wills  (2d  Am.  Ed.)  161;  Decker  v. 
Decker,  121  111.  341,  12  N.  E.  750. 

For  the  purpose  of  determining  the  object  of  a  testator's  bounty,  a 
court  may  inquire  into  every  material  fact  relating  to  the  person  who 
claims  to  be  interested  under  the  will,  in  order  to  identify  the  person 
intended  by  the  testator  as  a  legatee.  Wigram  on  Wills  (2d  Ed.) 
prop.  5;  p.  142.  This  learned  author  says:  "The  necessary  conse- 
quence, in  such  a  case,  of  bringing  the  words  of  the  will  into  con- 
tact with  the  circumstances  to  which  they  refer,  must  be  to  determine 
the  identity  of  the  person  intended."  2  Wigram  on  Wills,  p.  155, 
and  cases  cited.  If  the  word  "child,"  "children,"  "grandchildren," 
"son,"  or  "family"  is  used  in  a  will,  "parol  evidence  is  admissible  of 
any  extrinsic  circumstances  tending  to  show  what  person  or  persons 
or  what  things  were  intended  by  the  party,  or  to  ascertain  his  mean- 
ing in  any  other  respect."  1  Lewis'  Greenleaf  on  Evidence,  §  288. 
A  nickname  has  been  held  a  sufficient  description  of  the  object  of  a 
testator's  bounty ;  it  being  proved  that  the  testator  was  in  the  habit  of 
calling  the  legatee  by  such  name.  So,  also,  a  name  gained  by  reputa- 
tion, though  not  strictly  appropriate,  has  been  held  a  sufficient  de- 
scription of  the  person  intended.     Wigram  on  Wills  (2d  Ed.)  prop.  5, 

P-  144.  -  .  .  , 

Tested  by  the  principles  of  law  laid  down  in  these  authorities,  and 
interpreting  the  will  in  the  light  of  the  surrou;iding  circumstances  at 
the  time  it  was  executed,  manifestly  the  testator  meant,  by  the  words 
"my  grandchildren,"  the  grandchildren  of  his  wife. 
The  decree  of  the  circuit  court  will  be  afifirmed. 
Decree  affirmed. 


lOSO  THE  "parol  evidence"  rule  (Ch.  7 


'      SIEGLEY  V.  SIMPSON  et  al. 

(Sui>reme  Court  of  Washington,  1913.    73  Wash.  69,  131  Pac.  479,  47  L.  R.  A. 

[N.  S.]  514,  Ann.  Cas.  1915B,  63.) 

Mount,  J.*'  The  question  in  this  case  is  whether  parol  evidence 
is  admissible  in  the  construction  of  a  will  which  devises  "unto  my 
friend  Richard  H.  Simpson  the  sum  of  six  thousand  dollars,"  where 
the  legacy  is  claimed  by  each  of  two  persons,  one  named  "Richard 
H.  Simpson"  and  the  other  "Hamilton  Ross  Simpson."  The  facts 
are  briefly  as  follows:  M.  J.  Heney,  a  bachelor,  died  on  October  11, 
1910,  in  San  Francisco,  Cal.,  leaving  an  estate  valued  at  between  $750,- 
000  and  $1,000,000.  Prior  to  his  death  he  made  a  will  by  which  he 
left  his  estate  to  certain  relatives  and  friends.  The  sixteenth  clause 
thereof  provided  as  follows:  "I  give,  devise  and  bequeath  unto  my 
friend  Richard  H.  Simpson  the  sum  of  six  thousand  dollars,  and  I 
direct  that  my  executors  and  trustees  hereinafter  named  pay  the  same 
to  him  as  soon  after  my  death  as  the  condition  of  my  estate  in  the 
discretion  and  judgment  of  my  executors  will  permit."  Thereafter 
the  will  was  duly  probated  in  King  county,  in  this  state.  Executors 
and  trustees  were  appointed,  and  one  Richard  H.  Simpson  and  one 
Hamilton  Ross  Simpson  each  claimed  the  legacy  mentioned  in  the 
section  of  the  will  above  quoted.  The  executor  then  filed  a  petition, 
asking  the  court  to  bring  the  said  claimants  in  and  determine  the 
disputed  claims.  This  was  accordingly  done  under  the  statute.  Each 
of  the  claimants  appeared  and  set  up  his  claim.  The  lower  court 
thereupon  heard  evidence,  and  determined  that  Hamilton  Ross  Simp- 
son was  intended  as  the  beneficiary  under  the  will,  and  directed  the 
executor  to  pay  the  legacy  to  him.  Richard  H.  Simpson  has  ap- 
pealed from  that  order. 

He  argues  that  parol  evidence  is  not  admissible  to  prove  that  the 
testator  when  he  used  the  name  Richard  H.  Simpson  meant  Hamilton 
Ross  Simpson,  when  there  is  a  Richard  H.  Simpson  in  existence  who 
claims  under  the  will.     *     *     ♦ 

Necessarily  extrinsic  "*  evidence  is  admissible  to  prove  the  identity 
of  the  beneficiary  named  in  a  will,  especially  when  two  or  more  per- 
sons are  claiming  to  be  beneficially  named — not  for  the  purpose  of 
varying  the  terms  of  the  will,  but  to  determine  the  person  meant  by 
the  testator.  Connolly  v.  Pardon,  1  Paige's  Ch.  (N.  Y.)  291,  19  Am. 
Dec.  433;  Wilson  v.  Stevens,  59  Kan.  771,  51  Pac.  903;  Collins  v. 
Capps,  235  111.  560,  85  N.  E.  934,  126  Am.  St.  Rep.  232. 

In  Acton  v.  Lloyd,  37  N.  J.  Eq.  5,  the  court,  after  hearing  ex- 
trinsic evidence  as  to  the  identity  of  the  devisee,  held  that  a  bequest 
to  Dickey  Lloyd  was  intended  for  David  S.  Lloyd.     In  Camoys  v. 

«8  Part  of  opinion  of  Mount,  J.,  and  the  opinion  of  Chadwiclf,  J.,  omitted. 
8*  In  tlie  omitted  passage  the  court  quoted  at  length  from  30  Am.  &  Eug. 
Enc.  of  Law,  G73,  G82,  G83,  and  from  40  Cyc.  1429,  1435. 


Sec.  2)  AIDING  CONSTRUCTION  1081 

Blundell,  1  H.  L.  C.  17,  9  Eng.  Rep.  969,  the  court,  after  examining 
extrinsic  evidence,  concluded  that  Thomas  Weld  Blundell  was  en- 
titled to  a  legacy  by  a  will  which  named  Edward  Weld,  his  brother,  as 
legatee.  The  court  there  said :  "For  if  it  be  clear,  upon  the  due  con- 
struction of  the  will  with  reference  to  the  evidence  of  the  state  of  the 
family  as  known  to  the  testator,  that  the  meaning  of  the  testator  as 
expressed  by  the  will  was  that  the  person  described,  and  not  the  per- 
son named,  was  to  take,  the  description  will  prevail  over  the  name. 
*  *  *  "  In  Woman's  Foreign  Missionary  Society  v.  Mitchell,  93 
Md.  199,  48  Atl.  737,  53  L.  R.  A.  711,  the  court  said:  "It  is  the 
identity  of  the  individual,  natural  or  artificial,  that  is  material,  and 
not  the  name,  for  that  is  simply  one  of  the  numerous  means  by  which 
the  identity  is  ascertained.  The  identity  being  established,  the  name 
is  of  no  importance."  In  Hockensmith  v.  Slusher,  26  Mo.  237,  the 
court  said:  "The  general  rule  is  that  parol  evidence  cannot  be  ad- 
mitted to  supply  or  contradict,  enlarge,  or  vary  the  words  of  a  will,  nor 
to  explain  the  intention  of  the  testator,  except  in  two  specified  cases : 
(1)  Where  there  is  a  latent  ambiguity,  arising  dehors  the  will,  as  to 
the  person  or  subject  meant  to  be  described;  and  (2)  to  rebut  a 
resulting  trust."  See,  also,  Reformed  Presbyterian  Church  v.  Mc- 
Millan, 31  Wash.  643,  72  Pac.  502. 

In  this  case  if  there  had  been  two  dififerent  persons  by  the  name  ol 
Richard  H.  Simpson,  and  who  in  other  respects  answered  the  descrip- 
tion in  the  will,  and  these  two  persons  were  claiming  as  legatees,  clearly 
extrinsic  evidence  would  be  admissible  to  determine  the  identity  of 
the  person  named  in  the  will.  For  the  same  reason  and  upon  the 
same  principle,  where  there  are  two  persons  each  claiming  to  be  the 
beneficiary  because  they  are  each  described  in  the  will,  the  court  must 
decide  from  extrinsic  evidence  if  need  be  which  is  the  person  intended. 
And  that  is  what  was  done  in  this  case.  The  evidence  is  plain  that 
by  the  words,  "I  give  *  *  *  unto  my  friend  Richard  H.  Simpson 
the  sum  of  six  thousand  dollars,"  the  testator  referred  to  his  friend 
Hamilton  Ross  Simpson,  the  respondent  here,  for  the  latter  was  his 
employe,  and  had  been  so  for  several  years  in  Alaska,  and  assisted 
the  testator  in  railway  work  where  the  testator  accumulated  his  es- 
tate. Hamilton  Ross  Simpson  was  the  testator's  personal  associate 
much  of  the  time  in  Alaska,  and  the  testator  had  told  different  per- 
sons that  he  had  made  provision  for  him  in  his  will.  The  testator, 
while  he  was  intimate  with  H.  R.  Simpson,  the  respondent,  did  not  in 
fact  know  his  given  name  or  the  order  of  his  initials,  and  always 
addressed  him  as  "Mr.  Simpson"  or  "Bill". or  "Rotary  Bill,"  as  he  was 
commonly  known  on  account  of  his  ability  to  handle  a  railroad  rotary 
snowplow.  Richard  H.  Simpson,  the  appellant,  was  not  a  friend  of 
the  testator,  had  met  him  only  once  in  20  years,  and  then  merely  spoke 
to  him  as  they  passed  by.  These  and  other  facts  not  necessary  to 
recount  led  the  trial  court  to  conclude  that  the  testator  used  the  name 
Richard  H.   Simpson  when  he   referred  to  and  really  intended  the 


1082  THE  "parol  evidence"  rule  (Ch.  7 

person  and  name  of  Hamilton  Ross  Simpson  as  his  beneficiary.  Un- 
der the  rule  as  above  stated,  where  the  beneficiary  is  not  precisely  de- 
scribed, extrinsic  evidence  was  proper,  and  we  are  satisfied  that  the 
trial  court  correctly  interpreted  the  intent  of  the  testator  and  the  mean- 
ing of  the  will. 

Judgment  affirmed.'' 


LOMAX  et  al.  v.  LOAIAX  et  al. 

(Supreme  Court  of  Illinois,  1905.    218  111.  629,  75  N.  E.  1076,  6  L.  R.  A. 

•      [N.  S.]  942.) 

AIagruder,  J.^'  The  original  and  amended  bills  in  this  case  were 
filed  by  the  appellants  for  the  partition  of  certain  lands  in  Cook  coun- 
ty, 111.  The  interests  of  the  parties  are  derived  through  the  will  of 
John  A.  Lomax,  deceased,  which  bore  date  January  21,  1897,  and  was 
admitted  to  probate  in  the  probate  court  of  Cook  county  on  June  9, 
1899.  At  the  time  of  his  decease,  the  testator,  John  A.  Lomax,  was 
the  owner  of  the  S.  W.  fractional  yi  of  section  14,  township  40  N.,. 
range  12  E.  of  the  third  principal  meridian;  but  he  was  not,  at  the 
time  of  his  death,  the  owner  of,  nor  had  he  at  any  time  been  seised  or 
possessed  of,  the  S.  W.  fractional  14  of  section  24,  township  40  N., 
range  12  E.,  etc.  The  testator  left  a  widow,  named  Maria  Lomax,  and 
three  sons,  to  wit,  James  H.  Lomax,  George  Lomax,  and  Robert  D. 
Lomax.  He  owned  a  large  amount  of  land,  and  by  the  terms  of  his  will 
devised  most  of  the  pieces  of  land  owned  by  him  to  his  wife  and  his 
three  sons  as  tenants  in  common.  One  of  the  paragraphs  in  his  will  was 
as  follows :  *T  give,  devise,  and  bequeath  unto  my  wife,  Maria  Lomax, 
and  my  sons,  James  H.  Lomax,  George  Lomax,  and  Robert  D.  Lomax, 
as  tenants  in  common,  the  following  described  parcels  of  land,  situated 
in  the  town  of  Leyden,  county  of  Cook,  Illinois,  namely,  the  southwest 
fractional  quarter  of  section  24,  T.  40  N.,  R.  12  E.  of  the  3d  P.  M., 
containing  about  55.87  acres  more  or  less."  The  will  also  contained  the 
following  devise :  "All  the  rest,  residue,  and  remainder  of  my  estate, 
either  real,  personal,  or  mixed,  wheresoever  situated  and  of  whatsoever 
nature,  I  give,  devise,  and  bequeath  unto  my  sons,  James  H.  Lomax,. 

George    Lomax,    and    Robert    D.    Lomax,    equally    between    them." 
*     ♦     * 

In  order  to  sustain  the  decree  entered  by  the  court  below,  it  will  be 
necessary  to  hold  that  the  testator  made  a  mistake  and  devised  land  in 
section  24,  instead  of  land  in  section  14,  and  that,  as  he  owned  no  land 
in  section  24  and  made  no  devise  of  land  in  section  14,  the  land  in 
section  14  passed  as  intestate  estate  under  the  residuary  clause  to  the 
three  sons,  and  the  widow  took  no  interest  thereon.     But  if  this  court 

«£-  A  number  of  the  cases  are  collected  in  the  note  to  the  principal  case,  47 
I..  K.  A.  (N.  S.)  .'114. 

00  Part  of  opinion  oinltled. 


Sec.  2)  AIDING  CONSTRUCTION  1083 

can  hold  that  the  testator,  or  the  scrivener  who  drew  his  will,  made  a 
mistake  in  writing  section  24,  instead  of  section  14,  then  tlie  land  in 
section  14  passed  equally  to  the  widow  and  the  three  sons  together, 
so  that  her  interest  would  be  an  undivided  one-fourth.  We  are  unable 
to  see  why  this  case  does  not  come  within  the  doctrine  announced  in 
Kurtz  V.  Hibner,  55  111.  514,  8  Am.  Rep.  665,  and  reindorsed  in  Bingel 
V.  Volz,  142  111.  214,  31  N.  E.  13,  16  L.  R.  A.  321,  34  Am.  St.  Rep.  64; 
Williams  v.  Williams,  189  111.  500,  59  N.  E.  966,  and  Vestal  v.  Garrett, 
197  111.  398,  64  N.  E.  345.     *     *     * 

So,  in  the  case  at  bar,  parol  evidence  cannot  be  introduced  for  the 
purpose  of  showing  that  a  mistake  was  made  by  writing  "section  24" 
in  the  w^ill,  instead  of  "section  14."  It  is  well  settled  that  equity  will 
not  entertain  a  bill  to  reform  a  will  under  the  guise  of  an  attempt  to 
construe  the  will.  The  terms  of  the  devise  here  are  on  their  face 
clear  and  unambiguous,  being  a  devise  of  land  in  section  24.  The 
language  describes  a  tract  of  land,  and  one  which  is  capable  of  being 
readily  identified;  a'nd,  if  the  testator  had  owned  it,  it  would  have 
passed  by  the  terms  of  the  will. 

In  some  cases  it  has  been  held  that  a  latent  ambiguity  arises  when 
extrinsic  evidence  is  applied  to  such  a  devise  as  this,  and  that  such 
evidence  may  be  resorted  to  for  the  purpose  of  explaining  the  ambi- 
guity and  showing  what  land  the  testator  intended  to  devise.  It  should 
always  be  the  object  of  the  court  to  arrive,  if  possible,  at  the  inten- 
tion of  tlie  testator;  but  "the  intention  to  be  sought  for  is  not  that 
which  existed  in  the  mind  of  the  testator,  but  that  which  is  expressed 
by  the  language  of  the  will.  While,  in  attempting  to  construe  a  will, 
reference  may  be  made  to  surrounding  circumstances,  for  the  purpose 
of  determining  the  objects  of  the  testator's  bounty  or  the  subject  of 
disposition,  and  with  that  view  to  place  the  court,  so  far  as  possible, 
where  it  may  interpret  the  language  used  from  the  standpoint  of  the 
testator  at  the  time  he  employed  it,  still  the  rule  is  inflexible  that  sur- 
rounding circumstances  cannot  be  resorted  to  for  the  purpose  of  im- 
porting into  the  will  any  intention  which  is  not  there  expressed."  Bin- 
gel  V.  Volz,  supra. 

As  will  be  seen  by  reference  to  the  cases  above  mentioned,  and  also 
to  the  cases  of  Decker  v.  Decker,  121  111.  341,  12  N.  E.  750,  and  Huff- 
man V.  Young,  170  111.  290,  49  N.  E.  570,  this  is  not. a  case  where  so 
much  of  the  description  as  is  false  may  be  stricken  out,  so  as  to  leave 
enough  in  the  will,  interpreted  in  the  light  of  surrounding  circum- 
stances at  the  time  it  was  made,  to  identify  the  premises  devised.  Wil- 
liams V.  Williams,  supra.  It  was  said  in  Bingel  v.  Volz,  supra,  as  fol- 
lows (page  225  of  142  111.,  page  16  of  31  N.  E.  [16  L.  R.  A.  321,  34 
Am.  St.  Rep.  64]):  "Doubtless  if  there  were  repugnant  elements  in 
the  description  employed  in  the  devise  in  question,  and  if  the  descrip- 
tion, after  rejecting  a  repugnant  element,  were  complete  in  itself,  so  as 
to  accurately  and  sufficiently  describe  the  land  intended  to  be  described, 
that  rule  oi  construction  might  be  adopted.    But  we  are  unable  to  see, 


1084  THE  "parol  evidence"  rule  (Ch.  7 

and  the  ingenuity  of  counsel  has  been  unable  to  point  out,  any  way 
in  which  that  rule  of  construction  can  be  applied,  so  as  to  work  out  the 
result  sought  to  be  attained.  ■  *  *  *  If  it  be  admitted  that  there  are 
repugnant  elements  in  this  description,  it  is  impossible  to  see  what  re- 
pugnant element  can  be  rejected,  so  as  to  leave  a  description  which  will 
apply  to  the  land  which  the  appellant  claims." 

In  the  case  at  bar,  if  we  reject  the  words  "section  24,"  or  the  figures 
"24,"  nothing  remains  to  indicate  in  what  section  the  land  in  question 
lies.  The  correction  of  the  description,  by  the  insertion  of  "14"  in 
the  place  of  "24,"  requires  not  only  that  the  figures  "24"  should  be 
stricken  out,  but  that  the  figures  "14"  should  be  inserted.  As  was  said 
in  Bingel  v.  Volz,  supra,  this  "involves  more  than  construction.  It 
requires  reformation,  and  in  this  state  at  least  courts  of  equity  have 
persistently  refused  to  entertain  bills  to  reform  wills." 

For  the  reasons  above  stated,  we  are  of  the  opinion  that  the  decree 
of  the  court  below  is  erroneous ;  and  accordingly  it  is_  reversed,  and 
the  cause  is  remanded  to  the  circuit  court  for  further  proceedings  in 
accordance  with  the  views  herein  expressed. 

Reversed  and  remanded.®^ 


In  re  BOECK'S  WII.L. 
Appeal  of  BOECK. 

(Supreme  Court  of  WisconsLn,  1915.     160  Wis.  577,  152  N.  W.  155,  L.  R.  A. 

1915E,  1008.) 

William  Boeck  died  testate  October  13th,  1912.  He  had  owned  con- 
tinuously, up  to  that  time,  for  many  years,  South  Half  of  North  West 
Quarter  of  Section  13,  Township  18,  Range  12  East  in  Waushara 
County,  Wisconsin,  the  east  forty  of  which  was  his  homestead.  He 
never  owned  any  other  land  in  said  quarter  section.  The  west  forty 
which  he  owned  is  the  subject  of  this  action.  He  was  sixty-nine  years 
old  at  the  date  of  the  will.  He  was  survived  by  eight  children.  All 
were  named  as  beneficiaries.  There  was  no  residuary  clause  in  the  will. 
All  the  property,  by  specific  mention,  was  distributed  among  the  sur- 
vivors except  the  forty  acres  involved  in  the  action.  To  Herman  Au- 
gust Boeck  he,  in  terms,  gave  the  northeast  quarter  of  the  northwest 
quarter  of  said  section  13.  Herman  was  not  otherwise  remembered 
on  anywhere  near  the  basis  of  his  brothers.  The  will  was  duly  admit- 
ted to  probate  in  Waushara  County  and,  in  due  course,  the  estate  was 
assigned.  Thereby  the  southwest  quarter  of  the  northwest  quarter  of 
said  section  13  was  dealt  with  as  having  been  intended  for  Herman 
August  Boeck.  The  two  daughters  appealed  to  the  circuit  court,  in- 
sisting that  the  forty  not  mentioned  in  the  will  was  intestate  property. 

67  For' a  reviow  of  all  the  later  cases  in  Illinois,  see  Stevenson  v.  Stoven- 
Bon,  285  111.  48G,  121  N.  E.^02  (1918). 


Sec.  2)  AIDING   CONSTRUCTION  lOSH 

The  circuit  court,  in  due  course,  so  held  and  gave  judgment  according- 
ly and  awarded  the  contestants  $60.00  as  attorney's  fees  to  be  paid 
out  of  the  estate.    Judgment  was  so  entered. 
Herman  August  Boeck  appealed. 

Marshall,  J.     There  are  no  two  opinions  as  to  what  the  testator 
intended.    He  purposed  recognizing  his  son  Herman  by  giving  him  the 
forty  acres  of  land  which  was  not  otherwise  disposed  of  by  his  will, 
and  to  burden  it  with  a  legacy  of  one  hundred  and  fifty  dollars  in  favor 
of  his  daughter  Bertha.     That  he  intended  to  deal  with  the  land  he 
did  not  own,  and  thereby,  practically,  disinherit  both  son  and  daughter, 
notwithstanding  the  careful  remembrance  of  them  and  all  other  mem- 
bers of  his  family,  would  be  too  absurd  to  be  seriously  thought  of. 
This  was  the  view  below ;   but, — influenced  by  the  observation  in  the 
editor's  note  in  6  L.  R.  A.  (N.  S.)  977,  to  Lomax  v.  Lomax  et  al.,  218 
111.  629,  75  N.  E.  1076,  that,  "if  the  will  containing  the  devise     *     *     * 
contains  a  complete,  accurate  description  of  a  tract  of  land  not  owned 
by  the  testator,  and  no  language  whatever  pointing  in  any  wise  to  an 
intention  to  devise  another  tract  which  he  did  own,  the  devise  fails. — it 
cannot  be  made  to  apply  to  a  different  parcel  by  extrinsic  evidence; 
but,  if,  anywhere  in  the  will,  there  can  be  discovered  words  connecting 
the  devise     *     *     *     with  a  tract  of  land  that  belonged  to  the  tes- 
tator, or  indicative  of  his  intention  by  such  devise  to  devise  a  tract 
of  land  owned  by  him,  courts  will  seize  upon  such  words  to  make  ef- 
fectual   in  the   testator's   intended   devise,"   and,    further   influenced 
by  expressions,  found  now  and  then  in  judicial  writings  and  encyclo- 
paedic codifications  of  decisions,  such  as  this,  now  cited  to  us  by  coun- 
sel for  respondent:     "Where  the  will  is  plain,  simple  and  unambigu- 
ous on  its  face,  no  evidence  of  the  surrounding  circumstances  can  be 
admitted,"— the  learned  circuit  judge  supposed  the  judicial  hands  were 
so  tied  to  the  rock  of  precedent  that  they  could  not  be  so  loosened  as  to 
do  justice  in  the  particular  case. 

This  is  a  good  illustration  of  the  danger  of  taking,  literally,  mere  ex- 
pressions sometimes  found  in  law  writings,  for  a  guide.  That  danger 
is  progressive  directly  as  the  volume  of  such  writings  increases  and 
perhaps,  want  of  clearness  of  expression  and  tendency  to  follow  prec- 
edent instead  of  principle,  increases. 

In  the  literal  sense,  the  second  quotation  above,  taken  from  13  En- 
cyclopedia of  Evidence,  page  504,  is,  at  least,  very  misleading  and 
likewise  the  first  quotation.  If  either  means  that  the  language  of  a  will 
which  is  plain  in  its  words  cannot  be  changed  in  that  respect  by  char- 
acterizing circumstances,  and  the  ambiguity  solved  by  reading  the  in- 
strument in  the  light  of  the  entire  situation  with  which  the  testator 
dealt,  it  is  wrong.  Such  a  rule  would  make  of  law.  in  many  cases,  an 
instrument   for  perpetrating  wrongs  instead  of  one   for  vindicatmg 

rights.  . 

It  is  useless  to  try  to  harmonize  the  many  expressions  found  m  the 
books  in  respect  to  the  subject  under  discussion.    There  are  some  well 


10S6  THE  "parol  evidence"  rule  ■  (Ch.  7 

established  principles  which  are  of  the  highest  digriity.  So  far  as  such 
expressions  do  not  accord  therewitli,  they  are  wrong.  The  dominant 
of  all  such  principles  is  this :  The  intention  of  the  testator,  so  far  as 
it  can  be  discovered  from  his  will,  must  be  considered  as  expressed 
therein.  With  that  goes  all  the  principles  for  judicial  construction. 
The  basic  one  of  such  principles  is  that  judicial  construction  begins 
only  when  uncertainty  of  meaning  arises.  With  that  goes  the  explana- 
tory principle  that,  uncertainty  of  meaning  may  arise  as  well  by  ap- 
plication of  the  words  of  a  will  to  the  subject  with  which  it  deals  as 
from  the  words  of  the  will  themselves ;  and  the  one  that  while  extrinsic 
evidence  cannot  be  resorted  to  for  the  purpose  of  changing  or  ex- 
plaining a  will,  it  may  be  for  the  purpose  of  showing  the  circumstances 
characterizing  its  making  and,  for  the  purpose  of  determining  the 
meaning,  in  fact,  and  intended  to  be  expressed  therein,  it  may  be  read 
in  the  light  of  such  circumstances.  These  principles  for  construction 
have  been  so  often  stated  in  the  decisions  of  this  court  that  they  must 
be  considered  as  an  undoubted  part  of  our  unwritten  law,  regardless 
of  expressions  here  or  elsewhere  which  might  be  viewed  as  not  in  har- 
mony therewith. 

Our  attention  is  called  to  Sherwood  v.  Sherwood,  45  Wis.  357,  30 
Am.  Rep.  757,  to  support  the  idea  that  ambiguity  in  a  will  cannot  be 
created  by  reading  it  in  the  light  of  circumstances  established  by  ex- 
trinsic evidence,  nor  such  ambiguity  explained  by  reading  it  in  the 
light  of  like  circumstances,  but  the  contrary  is  the  fact.  There  the 
distinction  is  drawn  between  reformation  and  construction,  the  former 
not  being  permissible  as  to  a  will  and  the  latter  just  as  legitimate  as 
in  respect  to  any  other  written  instrument.  There,  also,  it  was  held  that 
"evidence  of  the  intention  of  the  testator,  extrinsic  to  the  will  itself,  is 
not  admissible  for  the  purpose  of  explaining,  construing  or  adding  to 
the  terms  of  a  will ;"  but  such  intention  must  be  spelled  out  f  romx  the 
words  of  the  will,  read  in  the  light  of  the  circumstances  surrounding 
the  testator  when  he  made  it.  In  cases  where  there  are  inconsistent 
provisions  in  a  will,  evidence  of  such  circumstances  is  always  admis- 
sible.   That  is  in  perfect  harmony  with  what  we  have  said. 

In  view  of  the  foregoing,  keeping  in  mind  the  fact  that,  where  the 
intention  of  the  testator  is  plain,  the  court  may  and  should  go  to  the- 
uttermost  limits  of  construction  authority  to  discover  it  expressed  in  the 
language  used  to  that  end,  there  does  not  seem  to  be  any  difficulty  in 
reading  the  will  in  question  as  devising  forty  acres  of  land  to  Herman 
August  Boeck.  That  much  is  literally  expressed,  and  there  is  no 
difficulty  in  applying  it  to  the  particular  forty,  since  that  is  the  only 
one  the  testator  had  after  devising  one  to  his  son  Samson. 

That  manner  of  reading  a  will  to  carry  out  a  testator's  intention,  is  so 
grounded  in  principle  that  judicial  authorities  could  only  serve  to  il- 
lustrate it.  So  far  as  any  may  be  found,  seemingly,  out  of  harmony 
with  it,  a  close  scrutiny  will,  in  general,  show  that  the  seeming  conflict 
does  not  exist  or  was  not  intended.    Such  is  the  fact  we  think  in  regard 


Sec.  2)  AIDING   CONSTRUCTION  *  1087 

to  the  language  used  in  Lomax  v.  Lomax,  which  efficiently  challenged 
the  attention  of  the  trial  court  unfavorably  to  the  conclusion  we  have 
reached.  That  is  very  evident,  since  in  each  of  the  several  cases  decid- 
ed before  and  after  it,  cited  in  the  briefs  of  counsel  for  appellant, — 
Dicker  v.  Decker,  121  111.  341,  12  N.  E.  750;  Whitcomb  v.  Rodman, 
156  111.  116,  40  N.  E.  553,  28  L.  R.  A.  149,  47  Am.  St.  Rep.  181; 
Felkel  v.  O'Brien,  231  111.  329,  83  N.  E.  170;  Collins  v.  Capps,  235  111. 
560,  85  N.  E.  934,  126  Am.  St.  Rep.  232,  ambiguity  was  created  and 
explained  by  applying  the  language  used  to  the  circumstances  charac- 
terizing the  making  of  tlie  will,  and  it  was  construed  by  regarding 
words  in  place  which  were  there  by  necessary  implication. 

It  n:iay  be  that  cases  have  been  disposed  of  here,  where  either  in  the 
decisions  or  discussions  leading  up  thereto,  it  was  not  appreciated  that 
in  the  field  for  judicial  construction  and  the  circumstances  under  which 
occasion  may  arise  for  such  construction,  rules  are  just  as  broad  in 
respect  to  w^ills  as  other  written  instruments.  The  principles  have 
been,  perhaps,  viewed  more  broadly  and  explained  in  greater  detail  in 
recent  years  tlian  formerly.  All  that  makes  for  judicial  efficiency  in 
execution  of  the  purpose  for  which  courts  were  created — to  prevent 
and  redress  wrongs. 

The  judgment  is  reversed,  and  the  cause  remanded  with  directions 
to  affirm  the  judgment  of  the  county  court.'* 

68  A  number  of  the  cases  on  this  point  are  collected  in  the  note  to  the  prin- 
cipal case  in  L.  R.  A.  1915C,  1009. 


INDEX 


[FIGURES  KEFEB  TO    PAGE    ON    WHICH    THE   CASE   OB    NOTE    BEGINS.    IN    WHICH   IHB 

SUBJECT  IS  treated] 


ACClDENTiS,  „^ 

Similar,  received  for  what  purposes,  S9S,  S99,  901,  903,  905,  907,  909. 

ACCOUNT  BOOKS,  571. 

See  Hearsay,  Exceptions  to  the  Rule. 

ACTS, 

Similar,  received  for  what  purpose,  S60,  877,  879. 

ADMISSIONS,  4S2. 

See  Hearsay,  Exceptions  to  the  Eule. 

AGE. 

Proof  by  inspection,  926,  929. 

AGENTS, 

Admissions  by.  520.  .522.  523.  526.  530. 
Witnesses  as.  competency,  162,  176. 

ALMANACS,  90,  101. 

ANCIENT  DEEDS,  226. 

ANIMALS, 

Lnsposition  of,  761. 
Habits  of,  868. 

ATTAINT. 

Writ  of,  5. 

ATTESTING  WITNESSES,  216. 

Admissions  as  a  substitute  for,  219. 
Adverse  party,  document  held  by,  221,  222.  223. 
Ancient  attested  documents,  226. 
Handwriting  of  attesting  witness,  216,  227. 
Impeachment  of,  376. 

Number  of.  required  to  be  called.  229,  23L 
Proof  of  documents  by,  216,  219,  220. 
Witness  unavailable,  224. 

IJEST  EVIDENCE  RULE,  937. 
Action  as  notice,  943. 

Adverse  party,  document  held  by,  940.  945. 
Admission  as  to  contents  of  writing,  962,  964,  965. 
Assessment  for  taxation,  968. 
Attorney,  fact  of  being.  967. 
Collateral  documents,  97L 
Copies  by  mechanical  processes,  950. 
Copy  of  a  copy,  9S1. 

Copy,  whether  preferred  to  oral  evidence,  9S0,  983,  9S5. 
Cross-examination  as  to  writings.  361. 
Destruction,  voluntary,  956.  958. 
Notices  and  duplicates,  9il,  948. 
Notice  to  produce,  945. 

Original,  when  unavailable,  953,  954,  955,  960. 
Profert  of  documents,  937. 

HixT.Ev.— 69  (1089) 


1090  INDEX 

[The  figures  refer  to  pages] 

BEST  EVIDENCE   RULE— Continued, 
Koceipt,  as  evidence  of  payments,  970. 
Records,  public,  ^0. 
Rule,  origin  of,  937. 
Sales,  976. 

Telegram,  original,  95L 
Tenancy,  968,  974. 
Title,  979. 

BODY, 

Condition  of,  714. 

See  Hearsay,  Exceptions  to  the  Rule. 

BOUNDARIES, 

Proof  of,  651,  654. 

BURDEN  OF  PROOF,  1. 

Establishment  of  the  issue,  34. 
Certainty  required,  36. 

Charge  of  crime,  3S,  40. 
Burden  in  various  issues: 

Bona  fide  purchaser,  87. 

Death,  45. 

Foreign  law,  87. 

Negligence  and  contributory  negligence,  58,  62,  63,  68. 

Notice  of  unrecorded  deed,  84. 

Sanity  and  insanity,  69,  72,  75,  78,  79,  83. 

Self-defense,  73. 

Undue  influence,  78. 
Presumption,  effect,  56,  63,  66. 
Production  of  evidence  to: 

Contradict  direct  evidence,  16. 

Make  a  prima  facie  case,  11,  20,  42,  43. 

Negative  a  presumption,  15,  45. 

Negative  an  exception,  46. 

Negative  contributory  negligence,  22,  28. 

CHARACTER, 

Accused,  good  or  bad  character  of.  817,  818,  820,  824. 

Deceased  in  homicide,  830,  834,  836. 

Negligence,  character  as  evidence,  842,  843. 

Parties  to  civil  actions,  character  of,  831,  839,  840. 

Presumptions  as  to,  828. 

Proof  of,  402,  404,  410,  764. 

Rape,  character  of  prosecutrix,  833. 

Traits  involved,  823,  827. 

Witness,  character  of,  see  Witnesses. 

CHILDREN, 

See  Witnesses. ' 

CIRCUMSTANTIAL  EVIDENCE,  817. 

COINU'ETENCY, 
See  Witnesses. 

CONl'i:SSIONS,  533. 

See  Hearsay,  Exceptions  to  the  lUile. 

CONSTRUCTION  OF  WRITINGS,  1042. 
See  Parol  Evidence  Rule. 

CONVICTION  OF  CRIMINAL  OFFENSES, 
Discredit  of  witnesses  by,  363,  401. 
Effect  on  competency,  141,  143,  144,  145,  146,  148. 
Foreign  conviction,  effect,  146,  148. 
I'ardon,  effecl,  14ii. 
Proof  of  conviction,  142. 


INDEX  1091 

[The  figures  refer  to  pages] 

COPY, 

See  Best  Evidence  Rule. 

CORONER'S  INQUEST,  446,  447,  636. 

COKKOBORATION  OF  WITNESSES,  412. 

See  Witnesses. 

COURT  AND  JURY.  1.  „     ,     .  . 

See  Burden  of  Proof ;    Evidence,  Admission  and  Exclusion  of. 

CRIMES, 

Burden  of  proof.  38,  40,  73.  

Proof  of  other,  for  what  purposes,  844,  845,  847,  849,  So3,  85o,  857,  858. 
Witnesses,  discredit  of,  see  Witnesses. 

CROSS-EXAMINATION,  343. 

See  Witnesses. 

CUSTOM, 

See  Parol  Evidence  Rule. 

DEATH, 

See  Presumptions. 

DEEDS, 

Ancient,  226. 

Copy  of,  see  Best  Evidence  Rule. 

Execution,  proof  of,  see  Attesting  Witnesses. 

Recorded,  632. 
DEGREES  OF  SECONDARY  EVIDENCE, 

See  Best  Evidence  Rule. 

DEMURRER  TO  EVIDENCE, 
Admission  by,  6,  12.    , 

DEPOSITIONS,  445. 

See  Hearsay,  Exception  to  the  Rule. 

DISPOSITIONS, 
See  Animals. 

DYING  DECLARATIONS,  464. 

See  Hearsay,  Exceptions  to  the  Rule. 

ENTRIES  IN  REGULAR  COURSE  OF  BUSINESS,  571. 
See  Hearsay,  Exceptions  to  the  Rule. 

EVIDENCE, 

Admission  and  exclusion  of,  108. 

Confessions,  determination  by  the  judge,  120,  537. 

Competency  of  witnesses.  111,  112,  118,  120. 

Conditional  relevancy,  lOS,  110. 

Documents,  116. 

Documents,  loss  of,  114. 

Dying  declarations,  464. 

Hearsay,  under  statutes,  122. 
Objections,  to  evidence, 

General  or  specific,  300,  308. 

Made,  when,  .304. 
Offers  of  evidence,  311,  313,  314. 
Order  of  introduction,  301. 

EXAMINATION  OF  WITNESSES,  316. 

See  Witnesses. 
EXCEPTIONS  TO  HEARSAY  RULE,  443. 

See  Plearsay,  Exceptions  to  the  Rule. 

EXPERT  WITNESSES,  777. 
See  Opinion. 


1002  INDEX 

[The  figures  refer. to  pages] 

FACTS, 

Judicially  noticed,  see  Judicial  Notice. 
Presumptions  as  to,  see  Presumptions. 
Questions  for  judge,  see  Evidence,  Admission  and  exclusion  of. 

FINE, 

See  Jury. 

FIRES, 

Set  out  by  engines,  SS4,  SS6,  SS9,  S91,  S94,  896. 
FOREIGN  LAW, 

Judicial  notice  of,  87,  102,  104. 
Presumptions  as  to,  87,  89. 

FORGERY, 

Other  utterings,  etc.,  844. 

FORMER  TRIAL, 

Testimony  at,  443. 

See  Hearsay,  Exceptions  to  the  Rule. 

HABIT  OR  PRACTICE, 

Evidence  of  what  facts,  863,  804,  866,  868,  869,  870,  871,  873,  875,  881. 

HANDWRITING,  796. 
See  Opinion. 

HEARSAY  RULE,  427-442 

HEARSAY,  EXCEPTIONS  TO  THE  RULE, 

Admissions,  482. 

Agents,  admission  by,  520,  522,  523,  526,  530. 

Assignors,  admissions  by,  514.  515. 

Beneficiaries,  admissions  by,  499,  507. 

Compromise,  oiler  of  as,  497. 

Codefendants,  admissions  by,  511. 

Conduct  implying,  490,  494,  49G. 

Conspirators,  admissions  by,  528. 

Former  owner,  admissions  by,  515,  518. 

Husband,  admission  by  against  wife,  509. 

Joint  obligor,  admissions  by,  503. 

Legatee,  admissions  by,  505. 

Member  of  corporation,  504. 

Nominal  party,  500. 

Pleadings,  as,  484,  486,  489. 

Privilege,  claim  of,  as,  237,  241,  242,  287. 

Silence  as  an,  491,  493. 

Third  person,  admission  by,  499,  527. 
Confessions,  533. 

Burden  of  proof  to  admit,  537. 

Contradiction  of,  550. 

i^'arts  discovered  from,  535. 

Fraud  or  trick  to  obtain,  545. 

Pica  of  guilty,  as,  552. 

Prelinjinary  questions  for  judge.  120,  537,  543. 

i'romises  or  threat.s,  535,  536,  539,  540. 

Sweat  box  methods,  547,  549. 

Testimony  before  coroner,  as,  542. 

Torture  lo  obtain,  533. 

Violence  inducing,  544. 
Dying  declarations,  464. 

AdmissiljiJlty  in  civil  cases,  405,  471. 

AdmlHsibiJity  in  rriu'lnal  cases,  47.';,  474. 

Belief  in  imiiendiug  death,  406,  468. 

Contradictoi-y  statements,  480. 

Preliminary  questions  for  judge,  464. 

Suhjecl-niatler,  how  limited,  476,  479. 


INDEX  109u 

[The  figures  refer  to  pages] 

HEARSAY,  EXCEPTIONS  TO  THE  RULE— Continued, 
Entries  in  rosular  course  of  business,  571. 

Account  boolvs,  evidence  of  wliat  facts,  594. 
Account  books  Icept  by  cleric,  572. 

Account  books  kept  by  party,  572,  573,  5S3,  586,  587,  596. 

Account  books  kept  by  third  person,  596,  598. 

Bookkeeper  as  witness,  575,  578. 

Bookkeeper  absent  or  dead,  572,  579,  581. 

Circumstantial  evidence  to  support  book  charges.  .587,  590,  591. 

Entries  from  reports  of  others,  605,  607,  610,  612,  616. 

Entries  other  than  book  charges,  579. 

Fair  account  book,  584,  593. 

Money  items,  evidence  of,  586. 

Oath,  supplementary,  583. 

Original  entries,  603,  604. 

Statute  of  James  I,  571. 
Otficial  statements,  617. 

Census  reports,  627. 

Consular  certiticate,  621. 

Coroner's  inquest,  636. 

Court  docket,  624. 

Deed  register,  632. 

Foreign  official  report,  639. 

Marriage  and  birth  register,  617,  622,  630. 

Prison  books,  619,  620. 

Sheriff's  return,  634. 

Ship  captain's  report,  623. 
Pedigree,  statements  of,  661. 

Athdavits  as  pedigree  statements,  672. 

Age,  670. 

Death,  fact  of,  667. 

Facts,  what  included,  670. 

Friends  and  associates,  competency,  664. 

Husband  or  wife,  competency,  661. 

Illegitimate  relations.  675. 

Relationship  of  declarant,  678. 
Reported  testimony,  443. 

Absence,  death,  or  insanity  of  witnesses,  443,  444,  456.  ^ 

Depositions  in  general,  445. 

Depositions  taken  by  coroner,  446.  447. 

Deposition  taken  by  magistrate,  451,  453. 

Parties,  identity  of.  443,  445,  448,  450. 

Proof  of  former  testimony,  458,  461. 
Reputation,  641. 

Character,  proved  by,  404,  656,  658. 

Custom,  proof  of,  by,  644. 

Death,  660. 

Lis  mota,  doctrine  of,  648. 

Marriage,  659. 

Notice,  to  prove,  658. 

Particular  facts,  649. 

Private  boundaries,  651,  654. 

Private  rights,  641,  646. 

Public  matter,  650. 
Spontaneous  statements,  683. 

Accidents,  statements  after,  728,  732,  746,  749. 

Acts,  statements  accompanying,  730,  733,  737,  739. 

Feelings,  statements  of,  683,  741,  743,  747. 

Injurv,  cause  of,  725. 

Intention,  683,  685,  688,  691,  694,  695,  697,  701. 

Mental  condition,  709. 

Motive,  6S6. 

Pain,  complaints  of,  714,  718,  721,  723. 


iO^J  INDEX 

[The  figures  refer  to  pages] 

HEARSAY,  EXCEPTIONS  TO  THE  RULE— Continued, 

Physical  condition,  715,  716. 

Physicians,  statements  to,  726. 

Posse.ssion.  statements  while  in.  729. 

Threats  of  suicide,  etc.,  692.  706,  711. 
Statements  against  interest.  577. 

Confessions  of  crime,  568. 

Acknowledgment  of  payment,  557,  558. 

Credits  entered,  562. 

Remote  liability,  566. 

Title,  disclaimer  of,  560,  561,  563. 
INNOCENCE. 

Presumption  of,  40. 

INSANITY, 

See  Burden  of  Proof. 

INSPECTION, 

See  Real  Evidence. 

INT^ENTION, 

C^onstruction,  as  affecting,  see  Parol  Evidence  Rule. 
Proof  of,  see  Spontanc-ous  Statements. 
Relevancy,  6S5. 

JUDGE, 

Questions  for,  see  Evidence,  Admission  and  exclusion  of. 
JUDICIAL  NOTICE,  89. 

Almanacs,  time,  etc.,  90,  92,  99. 

Articles,  ordinary  qualities  of,  89,  97. 

Custom,  92. 

Geography,  9.3. 

Governments,  foreign,  101,  105. 

History,  93. 

Language,  foreign.  90. 

Law,  foreign,  87,  102,  104. 

Municipal  ordinance,  103. 

Necessaries  for  infants,  91. 

Process  of  manufacture,  95. 

JURORS, 

Acting  on  general  knowledge,  10. 

Acting  on  private  information,  3,  7. 

Misconduct  of,  3,  7. 

Witnesses  in  the  cause,  3,  207. 

Witnesses  to  impeach  or  support  verdict,  204,  205,  207,  209,  210. 

LAW, 

Judicial  notice  of,  87,  102,  104,  105. 

I'resumptions  as  to,  87,  89. 

Proof,  burden  of,  as  to  foreign,  87. 

LEGITIMACY, 

Presumption  of,  56. 

LIFE, 

Presumption,  as  to,  51,  52. 

LIS  M(JTA  DOCTRINE.  648. 

LOST  DOCUMKNTS, 

See  Best  Eviflcnce  Rule. 

.MALICIOUS  PROSECUTION, 
Burden  of  proof,  10,  19. 

marrl\(;k. 

See  ItL'iiutation. 


1095 

[The  figures  refer  to  pages] 

NEGLIGENCE, 

Burden  of  proof,  22,  28,  58,  62,  G3,  G8. 
NEW  TIUAL  ON  WEIGHT  OF  EVIDENCE,  4.  6,  7.  10.  11.  3-. 

NONSUIT, 

Motion  for,  13,  20. 

OATH, 

Nature  of,  125. 

OPINION,  752. 

Conclusions  of  witnesses,  753. 
Expert  opinion,  777. 

Engineering  matters,  781, 
Finger  prints,  816. 
Handwriting,  796,  799,  806. 

Insurance  matters,  779.  • 

Literary  matters,  813. 
Medical  matters,  777. 
Navigation,  7S4. 
Personal  observation,  790. 
Safety  appliances,  785. 
Speculation,  792. 
Testimony  of  others,  786,  795. 
Typewriting,  814. 
Writing,  comparison,  SCO,  802,  80a 
Lay  opinion, 

Animals,  disposition  of,  761. 
Belief  of  another,  771. 
Character,  764. 

Competency  of  an  employi^,  764. 
Condition  of  roads,  756. 
Credibility  of  witnesses,  410. 
Danger  of  a  place,  757. 
Handwriting,  805. 
Identity,  755. 
Intoxication,  770. 
Medical  matters,  774,  777. 
Sanity,  772,  775. 
Speed,  760. 
\  alue,  758. 
llecoilection  distinguished  from,  7u2. 

PARDON, 

See  Witnesses. 
PAROL  EVIDENCE  RULE,  9S7. 

Construction  and  application  of  \yritings,  104 

Circumstances  to  prove  meaning,  1064,  10 to,  lObU. 
Context  to  prove  meaning,  1071. 
Customs  to  vary  meanings,  lOoO,  1051. 
Erroneous  descriptions,  1082,  1084. 
Habit  or  practice  to  show  meaning.  1078. 
Identification  of  subject  matter,  1042   1043,  1017.  10o3. 
Negotiation  to  prove  meaning,  105d.  10u7.  106U. 
Wills   instructions  to  show  meaning,  1067. 
Contradiction  of  written  instruments   987. 

Collateral  contracts,  1034.  103o,  10o8,  1039. 
Conditions,  additional,  1003,  1018,  1022. 
Consideration,  varying,  1013. 
Custom,  to  add  incidents,  1024,  1026. 
Fraud,  to  prove,  1009. 
lncomi)lcte  instruments,  1029,  1030.  1031. 
Inoperative  instniniciits.  1017,  1020. 
Legal  effect,  varying,  1032. 


1096  INDEX 

[The  figures  refer  to  pages] 

PAROL  EVIDENCE  RULE— Continued, 
Moditication,  subsequent,  992. 
Mortgages,  to  show  deeds  to  be.  1004,  1008.      • 
Omitted  provisions,  9S7,  9SS,  9S9,  993. 
Keceipt,  contradictions  of,  1014. 
Usury,  proof  of,  1011. 
Wills,  varying,  995,  1000. 

PARTIES, 

Competency,  see  Witnesses. 

PEDIGREE, 

Statement  of,  661. 

See  Hearsay,  Exceptions  to  the  Rule. 

PHYSICAL  CONDITION,  714. 
See  Spontaneous  Statements. 

PHYSICAL  OBJECTS,  917. 

Age  determined  by  inspection,  926,  929. 

Color  by  inspection,  917. 

Injuries,  exhibition  of,  926,  935. 

Resemblance,  as  evidence  of  relationship,  931,  934. 

View  by  jury,  effect  of,  919,  922. 

PLEADINGS  AS  ADMISSIONS,  484,  480,  489. 

PRELIMINARY  QUESTIONS,  108. 

See  Evidence,  Admission  and  exclusion  ot 

PRESUMPTION, 

Character,  whether  good,  828. 
Consideration,  56. 
Innocence,  40. 
Law,  foreign,  87. 

Life,  death,  etc.,  45,  48,  49,  51,  52. 
Negligence,  63,  68. 
Sanity,  69,  75,  79,  S3. 

PRIVILEGE, 

See  Witnesses. 

PUBLIC  DOCUMENTS, 
See  Oflicial  Statements. 

PUBLIC  INTEREST, 
See  Reputation. 

RAPE, 

Complaints  of,  422. 

REAL  EVIDENCE, 

See  Physical  Objects. 

REASONABLE  DOUBT,  40,  41. 

RECOLLECTION, 

Refreshing,  see  Witnesses. 

REPORTED  TESTIMONY,  443. 

See  Hearsay,  Exceptions  to  the  Rule. 

REI'UTATION,  53. 

See  Hearsay,  Exceptions  to  the  Rule. 

RES  GEST^,  683. 

SPONTANEOUS  STATEMENTS,  683. 
See  Hearsay,  Exceptions  to  the  Rule. 

STATEMENTS  AGAINST  INTEREST,  557, 
See  Hearsay,  Exceptions  to  the  Rule. 

SURVIVORSHIP, 

Burden  of  proof,  53. 


INDEX  1097 

[The  figures  refer  to  pages] 

VALUE, 

Sales  of  other  property,  911,  913,  915. 
See  Opinion. 

VERDICT, 

Against  evidence,  10.  ?.2. 

Directed,  when,  11,  13,  15,  IG,  19,  20,  29,  32. 

Special,  effect,  1,  2. 

VIEW  BY  JURY,  919,  922. 

VOIR  DIRE,  150,  31G. 

WILLS, 

Burden  of  proof,  75,  78,  83. 

Construction,  1043,  1047,  1064,  10G7,  1071,  1075.  1078,  1080,  1082,  1084. 

Contradiction,  995,  1000. 

Declarations  of  testator,  694,  701. 

Undue  influence,  78,  82. 

WITNESSES,  125 
Competency, 

Atheists,  pagans,  etc.,  125,  129,  131,  134. 

Attorney  in  the  cause,  276. 

Broker  or  agent  of  party,  162,  176. 

Children,  129,  134,  135,  137. 

Creditor  of  party  or  estate,  165. 

Grand  jurors,  213. 

Husband  or  wife  of  a  party,  184,  185,  1S7,  189,  192,  195,  196,  202. 

Infamous  persons,  141,  143,  144,  145,  146. 

Informer  or  prosecutor,  150,  151. 

Insane  persons,  138. 

Interest  in  the  suit,  158,  159,  160,  161,  162,  164. 

Intoxicated  person,  137. 

Jurors,  3,  204,  205,  207,  209,  210. 

Legatees  of  estate,  166.  . 

Member  of  corporation  or  finn,  164,  171,  ISO. 

Pardon,  146. 

Parties  to  the  action,  152.  153,  154.  155,  156,  157,  173,  181. 

Parties  to  the  contract,  173,  175,  176. 

Relationship  to  a  party.  159. 

Relationship,  marital,  184. 

Remainderman,  166. 

Statutes,  qualifying,  169,  170. 

Survivor  of  transaction  with  deceased,  181. 

Widows,  168,  197,  200,  201. 
Contradiction  and  impeachment,  374. 

Character  to  discredit,  402,  407,  408. 

Character,  proof  of,  402,  404.  410,  764. 

Contradictory  statements,  377.  381,  382,  3S9. 

Contradiction,  foundation  for,  390,  391,  .393. 

Conviction  of  criminal  offense,  401. 

Criminal  acts,  395,  396. 

Cross-examination  to,  366,  372. 

Facts,  contradiction  as  to,  376,  397,  398,  399. 

Witnesses,  what  subjects  to  impeachment,  374,  376. 
Corroboration  and  support.  412. 

Character  to  support,  424. 

Contradiction  as  basis  for,  412,  415. 

Conviction  as  basis  for,  418. 

Contradictory  statements  as  basis  for,  415. 

Cross-examination  as  basis  for,  414. 

Similar  statements  to  support,  420,  422,  425. 
Cross-examination,  343. 

Bias,  to  show,  368. 


1098  INDEX 

[The  figures  refer  to  pages] 

WITNESSES— Continued. 

Coutenls  of  a  writing.  3G1. 

Conviction,  to  sliow.  363. 

Criminal  acts,  to  show,  3G6,  372. 

Cross-examination  prevented,  345.  348. 

Defendant,  cross-examination  of,  360,  370,  371. 

Riglit  of  cross-examination,  .344,  349. 

Scope  of,  350,  351.  353,  354,  356,  358. 

Waiver  of,  343,  345. 
Examination,  316. 

Leading  cinestions.  317.  318.  322.  324. 

Memoranda  to  aid  or  supply  recollection,  325,  326,  327,  328,  329,  330, 
332,  335,  336,  338,  340. 

Objections,  general  or  specific,  306,  308. 

Objections,  time  to  make,  301,  303,  304,  306, 

Questions,  when  necessary,  310. 

Voir  dire  examination,  150,  316. 
Privilege  against  self-incrimination,  232. 

Admission  by  claim  or  exercise  of  privilege,  237,  241,  242. 

Civil  liabilities,  233,  246. 

Claim  of,  how  determined,  264,  266,  270. 

Disgrace,  250. 

Erroneous  ruling,  effect,  259. 

Extent  of  privilege,  245. 

Inspection  of  defendant,  235,  237. 

Immunity  statutes,  effect,  203. 

Pardon,  effect,  262. 

Penal  liability,  234,  248. 

Production  of  documents,  233. 

Silence,  privilege  of.  237. 

Waiver  of  privilege,  239,  242,  251,  256,  257,  259. 
I'rivilegcd  relations,  273. 

Admission  by  claim,  287. 

Agents,  con;munications  to,  275. 

Attorneys,  273,  274,  277,  279,  281,  296. 

Compulsory  disclosure  by  party,  286. 

Erroneous  ruling,  effect,  293. 

Husband  and  wife,  197,  199,  200,  201,  202,  204. 

Illegal  purpose,  283. 

Physician  and  patient,  289,  291,  294. 

Waiver  by  client  or  patient,  292,  299. 


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